A 599005
DUPL
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589
P98
Copyright

ARTES
1837
SCIENTIA
VERITAS
LIBRARY
OF THE
UNIVERSITY OF MICHIGAN
PLURIBUS UNUMS
TUZBOR
SI QUAERIS-PENINSULAM AMOENAMUS
CIRCUMSPICE
....

AZ
7
Z
589
P98
JUST PUBLISHED.
2 5 2 7 4
COPYRIGHT.
A SKETCH OF
ITS RISE AND PROGRESS:
THE ACTS OF PARLIAMENT
AND
CONVENTIONS WITH FOREIGN NATIONS NOW
IN FORCE,
WITH
Suggestions
ON
THE STATUTORY REQUIREMENTS
FOR THE DISPOSAL AND SECURITY OF A COPYRIGHT, LITERARY,
MUSICAL, AND ARTISTIC.
EDITED BY
CHARLES H. PURDAY.
PRICE FIVE SHILLINGS.
LONDON:
W. REEVES, 185, FLEET STREET;
AND
J. B. CRAMER & CO., 201, REGENT STREET.
1877.
I
MUSICAL COPYRIGHT.
(To the Editor of the STANDARD.)
SIR,-In your leading article of this morning, on the case of "Boosey v.
Fairlie," you allude to a former decision in a similar case, viz., "Wood v. Boosey,
which is reported in Mr. Short's "Law relating to Literature and Art," a full
report of which is also given in the "Law Reports," 2 Q.B., 340, and 7 B. & S. 869.
Mr. Short says, according to the judgment in this case :-"A pianoforte score of
an opera is an independent musical composition, separate and distinct from the
opera itself; and where such pianoforte score has been arranged by a person other
than the composer it is incorrect to register that score as the composition of the
composer of the opera."
"It seems impossible," says Cockburn, C. J., "to believe that any musician,
however great his talent, whether as a composer or as an executant, from the mere
circumstance of having the opera in its entirety before him-that is to say, with
all the score for all the instruments, which neither eye nor mind could take in
at the same time-could be able to play the accompaniment while singing the
music of the opera at the piano. It requires time, reflection, skill, and mind so to
condense the opera score as to compose the pianoforte accompaniment. I cannot
therefore, bring myself to think that the pianoforte arrangement of the music of
an opera, which originally consisted of vocal music and instrumentation, to be
executed by some half-hundred instruments, can be said to be anything else than a
specific, separate, and distinct work from the opera itself."
With all submission, I ask how can a pianoforte score of an opera, which must
contain every note of the vocal part, whether song, duet, trio, quartet, or chorus,
be" a separate and distinct work from the opera itself," more especially when the
pianoforte accompaniment does not contain a single note which is not to be found
in the full score, and which is not, nor can it be, the composition of the arranger?
The pianoforte score differs from the full score, only in that the harmony, melody,
chorus, and progression is reduced to such a form as to be sung by voices, and
accompanied by the piano. The entire work is the composition of the composer
of the full score; and it may be played on the pianoforte from the full score by
any competent musician at sight. And both the eye and mind of an accomplished
musician may see and comprehend the design of the composition at a glance.
It is not pretended that a piano can be made to produce the precise sounds of
every instrument of the "half-hundred " in an orchestra. But the Chief Justice
was decidedly in error when he pronounced judgment upon a pianoforte score of
the opera of "The Merry Wives of Windsor" being the composition of any other
person than Nicolai, the composer. Now, the requirements of the International
Act are, that a work first published in France shall be entered at Stationers' Hall
within three months after its publication in France. If it be a musical composi-
tion it must be registered within three months after its first representation in
Paris, and the form for registry must state the name and address of the composer,
the name and address of the proprietor of the copyright, and the right of represen-
tation, and the name and address of the author of the libretto, and the title of the
work. It does not state whether the work to be entered is to be the full score of
an opera, or merely the vocal score and piano accompaniment, which latter is
generally the only work published. And, therefore, the work deposited at the
time of the entry must be taken as the work to be secured by such entry. You
cannot deposit that which has never been published. The work is sent to be
entered at the same time it is to be registered; therefore the registrar, if he bas
any discretion in the matter, must see, and ought to examine before entry, whether
the work corresponds exactly with the form of entry. Whose fault is it, then, if
the entry is defective? The fact is that the registry at Stationers' Hall is a
"delusion and a snare.'
,,
The Act of 5 & 6 Vic., c. 45, tells us that there is a book of entry where "may
be entered "
a copyright; but the entry or non-entry does not either secure or
invalidate that copyright, and yet it tells us that no action can be taken to punish
$20 AZ1
the thief who steals any portion of a copyright unless an entry is made therein.
And the law tells that if a piracy is committed it is quite time enough to go and
pay 5s. for an entry after you have discovered that somebody has pirated your
work, before you take action against the pirate. So that if a man publishes 500
works in year, he saves £125 by non-entry, and is still secure in his copyright.
Now, it will be found that most of the decisions in copyright cases are founded on
mere technicalities, some of which are perfectly ridiculous. For instance, in
"Low v. Routledge" a nonsuit was given simply because the day of publication
was entered as the 25th instead of the 23rd day of the month, and the firm was
stated to be Sampson Low, Son, and Marston, instead of Sampson Low, Son, and
Co. There are several cases of this kind, in which, instead of ordering the parties
to amend, without costs, they have been mulcted in costs on both sides, and com-
pelled to begin again de novo, when they have succeeded. But these technicalities
have ruined many a suitor, and yet the bad law remains in statú quo.
If the mere omission in the registry of a true date or a name, neither of which
proves the non-right of the party suing to be legally entitled to the property, the
sooner such technicalities are done away with the better for all parties-except the
lawyers. In Germany there is a tribunal for the settlement of such matters as are
required to be legislated upon by professional men, who are competent to decide
upon their merits. It would be quite as reasonable to decide a case on the subject
of musical rights in an entry with the composer's name as it would where only the
name of the arranger of the composer's music is mentioned, and under present
circumstances more equitable; although it might be better that both should be
mentioned.
I am, Sir, yours obediently, CHARLES H. PURDAY.
27, Portland Road, Notting Hill, May 21, 1877.
Mr. Purday's letter to us on the subject of musical copyright, may be advanta-
geously studied by the commission now engaged with the revision of the Inter-
national Copyright Convention. The recent decision in the case of "Boosey v.
Fairlie" shows that it is exceedingly difficult and practically all but impossible for
a foreign composer to secure in England the exclusive right of performing his own
operas. This is to be regretted, if only for the fact that one of the objects of the
Act in question was to place such a right within the foreign composer's reach.
Surely it ought to be possible to draw up an agreement between two Governments
in such a way that it should be not only intelligible but also serviceable. That
portion, however, of the International Copyright Convention which relates to the
rights of composers has proved a puzzle to more than one learned judge, and the
latest decision as to the right of a composer to claim authority in England over his
own productions for the stage only simplifies matters by making it clear that he
can acquire no such right except at a cost which, in the great majority of cases, it
would be unprofitable to incur. The Convention, for example, stipulates that the
foreign composer who wishes to secure for an opera the right of representation
in England, shall deposit a copy of his work, and cause it to be registered at
Stationers' Hall. Nothing seems easier, if to deposit the opera as reduced for
voices and pianoforte will suffice. But nothing is more difficult if the full score
is required, seeing that the full score of an opera is but rarely printed. The
judges have in their wisdom decided that a work for voices and orchestra is one
thing, and the same work for voices and pianoforte quite another. Indeed, Lord
Chief Justice Cockburn has declared and laid down as law the principle that the
musician who arranges an opera for voices and pianoforte.--who substitutes, that is
to say, a pianoforte accompaniment for the accompaniment of the full orchestra-
is to be looked upon as the "composer" of the opera. He is simply, however,
its transcriber and simplifier in regard to the accompaniments, literal transcriber
in regard to the voice parts. Assuming that our judges are well able to under-
stand the clauses of the International Copyright Convention, it is impossible not
to conclude that the Convention itself is faulty. Nothing is more reasonable than
that when a composer registers an opera with a view to its protection he should be
compelled to furnish some evidence as to what the work is which he proposes to
protect, but for this an edition for voices and pianoforte would amply suffice.-
Standard, May 29, 1877.
PREFATORY REMARKS.
In compiling this slight sketch on the subject of Copy-
right, the Editor does not presume to imagine that he has
thrown much more light on the basis upon which the laws
of literary property have been founded than has hitherto
been done. But having been connected with the matter
for some years, and forced into defending some actions
brought against his brother for opposing the assumed
exclusive right to publish the works of foreign composers
in England, which common sense told him could not
be legally maintained, he has been compelled to make
himself more acquainted with the question than has been
either pleasant or profitable to him; reference made to
the cases is, therefore, simple matter of history.
His experience, however, has led him to discover how
very imperfectly the law has been understood either by
Publishers themselves, by the Bench, or by the Legal
Profession, which the many conflicting dicta of the Bench
have but too, clearly evidenced. It is from these circum-
stances that he has been induced to put forth the few
facts and ideas which he has picked up from time to time,
during a period of above half a century, connected with
the Music Trade; and that he has resolved to put them in
print, simply hoping they may be useful to those who may
not have had the same opportunity of becoming acquainted
with the matter as himself. The statements respecting
Stationers' Hall and its registry have many of them been
extracted from Lowndes and other sources already pub-
lished.
If a common-place mind might suggest an idea respecting a
new Copyright Law, would it not be better to repeal those
anomalous portions of the present Act of 5 & 6 Vic., c. 45,
rather than to endeavour to consolidate all the Copyright Acts.
into one, perhaps far more difficult to be understood by com-
mon-sense people from its necessarily extended character than
the present Act; especially if couched, as Acts generally are, in
legal phraseology. Let us get rid of such parts of the present
Acts as have been stumbling-blocks to the Bench, hardships to
the litigants, and incentives to the legal profession to put their
unfortunate clients to heavy costs and charges on speculation of
the "glorious uncertainty" of the law. Most of the "Amend-
ments" in the Copyright Acts have been anything but
encouragements to authors" to write literary and musical
works "of lasting benefit to the world." The Act of Anne is
assumed to have taken away the author's common-law right, and
to have limited his copyright to fourteen years; compelling him
and his assigns to give to certain rich public educational estab-
lishments eleven copies of every work published, without fee or
reward, into the bargain. The present Act gives to an author's
assigns all he has produced, without the least consideration for
his family; and the word "author" is interpreted as meaning any
author, whether he be a subject of Queen Victoria or of her
bitterest enemy; or whether a convention for mutual rights be
the subject of reciprocity or not. So it has been settled, but
whether justly is questionable, if-as in the case of the judg-
ment in Jeffreys v. Boosey-English laws were made for
English authors, and copyright conventions were based on reci-
procity.
COPYRIGHT.
CHAPTER I.
DISCOVERY OF PRINTING AND ORIGIN OF COPYRIGHT.
On the discovery of the art of printing it is said the first
inventors were very desirous to monopolise it; they therefore
did their utmost to conceal the process of book-making; but in
spite of their endeavours it soon spread; printers multiplied,
and interfered with one another, as must always be the case in
a greater or less degree with persons who are concerned in the
same trade. In order to prevent this inconvenience, some of
the earlier printers applied to the Pope, the Republic of Venice,
and the Duke of Florence to get the sole privilege of printing
the books of which they were the first publishers. This privi-
lege was obtained for a term of years, seldom exceeding fourteen,
and not often so long, as it appears from the first editions of
the Classics, to which patents were commonly prefixed. Hence
it would appear that literary property was originally a privilege
granted, not to authors to encourage them to write books, but
to printers to induce them to print them. The transition from
the encouragement of printers to that of authors was, however,
natural and obvious. And accordingly, soon after, privileges
appear in favour of authors, which were commonly assigned
to publishers, whose names were attached to the title-pages.
Upon this footing, therefore, the matter stood for a long time,
as at present, throughout Europe.
The abstract right does not seem to have been legally recog-
nised; but privileges were granted from favour, and with a view
B
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to public expediency. In ancient times orations, plays, poems,
and even philosophical discourses, were usually orally commu-
nicated; and all ages have allotted to the composers the profits
which arose from this mode of publication. They were re-
warded by the contributions of the audience, or by the patronage
of those illustrious persons in whose houses they recited their
works. A recompense of some sort was regarded as a natural
right; and anyone contravening it was esteemed little better
than a robber. Terence sold his "Eunuchus " to the Ediles,
and was afterwards charged with stealing his fable from
"Nævius and Plautus." He sold his "Hecrya" to Roscius,
the player. Statius would have starved had he not sold his
tragedy of "Agave" to Paris, another player. These sales
were founded upon natural justice. No man could possibly
have any right to make a profit by the publication of the works
of another without the author's consent. It would be converting
to one's own emolument the fruit of another man's labours.
Distinct properties were not adjusted at the same time, or by
one single act; but by successive degrees, according to circum-
stances, as the condition of things, or the number and genius of
men seemed to require. Previously to the art of printing there
were but very imperfect ideas of what is now termed Copyright.
The Roman law (Just. II. 1, 33), adjudged that if one man
wrote on the parchment or paper of another man, the writing
should belong to the owner of the materials; meaning thereby
the mechanical operation of writing, for which it directed the
scribe should receive satisfaction.
Printing was introduced into England about the middle of
the 15th century; but both the date and the mode of its in-
troduction appear doubtful.
Caxton, who it is said was born in Kent about 1412, and
who was apprenticed to a mercer in London, on the decease of
the principal buyer of foreign silks in the house where Caxton
learned that business and the art of buying and selling silks,
was installed into the buyer's place, and was frequently sent
abroad to make purchases; by which means he became ac-
quainted with, and got initiated into the art and mystery of
3
printing at his own expense. The first book printed by him
was called "The Recuyell of the Historyes of Troye, in the Holye
Cyte of Colen, in 1471."* But the first book printed by him in
England was "The Game and Playe of the Chesse," in the
year 1474. There seems no doubt, however, of Caxton's having
been the first printer in England from fusible moveable types.
One account states that he set up a shop in Sun Street; but
the more probable fact is that on his return from his travels,
where he had learned the art, and by the encouragement of
the Abbot of Westminster, he first set up a press in that Abbey
in 1471, which he continued to work until he died, in 1494.
Caxton was called citizen and mercer. Mr. Herbert (in his
"Typ. Ant.," p. 2,) appears to think he was appointed King's
printer; but when it is considered that we have a minute ac-
count of upwards of fifty productions from the Caxton press,
and that on none of these does he style himself "Regius im-
pressor," and that for the greater part of his printing career
he was without a competitor, he needed no special protection
for the works he published; and accordingly we do not find a
single royal privilege granted for any of his works. And it
seems scarcely probable that this office would originate when.
there was only a single printer, as it could be of no value. But
when several persons began to exercise the art of printing, it
was natural that the king should select one out of the rest-
the most expert or the best recommended—especially to print
papers of State, and matters of Government. Accordingly we
find one William Faques or Fakes, who styles himself "Regius
impressor," in a proclamation against clipped money in 1504;
and from that time until now there has been a regular succes-
sion of persons holding that office.
In 1518 we have the first account of an exclusive privilege
in the printing of a book, by the successor of Faques,† by
Richard Pynson. After this, privileges were granted very
* Translated from the French by himself.
+ Faques and Pynson printed the Acts of Parliament in the 19th year of
Henry VII. (1503).
4
freely in the reign of Henry VIII., and patents to several
printers for seven years, for all books they may have printed,
or thereafter should print, to be computed from the date of
publication; as one to John Gowghe or Gough,* in 1540; to
Thomas Berthelet, in 1538, “for sixe yeres ;" and to Richard
Banks, in 1540. There is also a patent to Reginald Wolfe, of
the office of the king's printer, in Latin, Greek, and Hebrew,
with a prohibition to print such books as were therein specially
assigned to him, or such books as "propria sua industriâ,
diligentiâ, atque labore conquisivit."
Here we meet for the first time with a distinct acknow-
ledgment of the existence of property in a literary work, inde-
pendently of the value of the materials employed in its produc-
tion a property acquired by the patentee's own industry,
diligence, and labour.
:
In the meantime had occurred what might be called the first
case of piracy on record. Wynken de Worde had printed a
"Treatise on Grammar," by Robert Witinton, in 1523, which
one Peter Trevers had taken the liberty of re-printing; and in
a subsequent edition in 1533, Witinton attacked Trevers with
great severity for this act; to prevent a recurrence of which,
a privilege was procured from the King. These royal privileges
were continued to be granted long after the passing of the Act
of Anne, and by all the Georges.
As printers increased and improved, more books were printed
and more privileges were granted, as they were found to become
more necessary, as a security for their protection against piracy.
In the 25th of Hen. VIII. (1533) an Act was passed for pre-
venting the importation of bound books, and unbound; re-
pealing the Act of 1 Rich. III., which permitted books to be
imported and sold, both printed and written, "at the pleasure
of the importer," as at that time very few books were to be had
in England; but since then they had so much multiplied, and
the arts of printing and binding had so much increased, where-
by so many persons obtained their livelihood, that it became
* Gough was called printer, stationer, and author.
5
LO
necessary for their protection to repeal the Act of Rich. III.
and prevent the importation of books, both Latin and English.
At the same time, however, it provided that in case of the
price of books being raised beyond what was customary, refer-
ence might be made to the King, the Lord Chancellor, or any
of the Chief Justices, to redress the same and inflict penalties
for the same; and that a penalty of 6s. 8d. a copy on the sale
of such books contrary to this Act shall be enforced against
all persons having them in their possession.
Such was the state of literary property until the reign of
Philip and Mary, when, it being found that "many false fond
books and other lewd treatises in the English tongue, both
heretical and seditious," were being issued from the press, it
was determined to unite the printers into one body, that their
general conduct could be more easily watched and controlled.
Letters patent were therefore granted to the Stationers' Com-
pany on May 4th, 1556, as a Corporation, that they might
search out and oversee all who followed the art of printing.
The foregoing facts prove that by the increase of printers
and the improvements in printing, it became possible for
one man, by printing another's work, to avail himself of the
money and labour expended by another upon its production
without incurring the cost, and so to undersell him. As soon
as the injustice of such a case was proclaimed, it was dis-
tinctly acknowledged by common justice and equity, that he
who had gained to himself by mental labour or outlay of capital
that to which he was entitled, was fully supported by the lan-
guage in which the patents were couched, and the grounds on
which the King was induced to grant them.
*
About this time, also, we find a privilege for printing, which
upon the face of it, though not in express words, is granted in
consideration of the claims which an author has to his copy.
It is dated 1530, and is in favour of "Maistre Jehan Palsgraue,
Angloys, natyf de Londres, et gradué de Paris," for a book to
teach the French language, which he is said to have “made
* "Copy" was used formerly for what is now termed "Copyright."
6
CC
with a great and long continued dyligence," and in which,
besydes his great labours, payns, and tyme thereabout em-
ployed, he hath also at his own proper coste and charge put in
prynt;" wherefore, continues the patent, "we, greatly moved
and stered by dewe consyderation of his sayd long tyme and
great dyligence, about this good and very necessary purpose
employed, and also of his sayd great costes and charges bestowed
about the imprynting of the same, have liberally and benignely
graunted unto the said Maister Palsgraue our fauorable letters
of priuilege, concernynge his sayd boke, called "L'Esclarcisse-
ment de la Langue Francoyse," for the space and terme of seuyn
yeares next and immedyately after the date hereof enswyng,
&c. (Herb. "Typ. Ant." vol. i., p. 470.)
""
As the King's privilege appears to have been the most effec-
tual way of securing the rights of an author at that time, it
was very natural that he should endeavour to prevent other
persons from infringing his rights; for the King's protecting
privilege also acted as a guarantee in the recommendation of
his book. It would appear that these licences were not granted
solely on the ground of the King's generosity, but that the
author had spent much time and labour in the composition of
his work, or that the printer had laid out large sums of money
in the production of it; and these were the grounds on which the
King was induced to grant them. Indeed it is most probable
that the parties applying for these privileges never anticipated
the protection of more than one edition; as there were com-
paratively few readers to require a second or third edition as a
means of repayment for their outlays at the commencement.
CHAPTER II.
SOME ACCOUNT OF THE STATIONERS' HALL COMPANY
AND ITS REGISTER.
The Stationers' Company is said to have had its origin, and
was formed into a guild or fraternity, about the year 1403. It
had then, as now, bye-laws for the regulation of its fellowship.
7
The term "Stacyoners" is explained as writers, or lymners of
books and dyverse things for the church, and other uses as
A B C's, with paternoster, creede, grace, and portions of the
Bible, or text writers. Their Hall stands on the site of Burga-
venny house, which was modified and re-erected in the 3rd and
4th of Philip and Mary.
"The stacioners," says Stowe, "dwelt in and about Pater-
noster Row, where also dwelled turners of beads, who where pa-
ternoster makers." It would appear, according to Nichols, that
notwithstanding all their endeavours, the Stationers' Company
have not been able to discover their privilege or charter under
which the Company acted as a corporate body. Wynken de
Worde was a “citizen and stationer," as is notified in his will,
dated 1545. The first place of meeting of the Stationers'
Company or Guild appears to have been in Milk Street, but in
1553 they removed to St. Peter's College, near the Deanery.
The term stationer is also said to have been given to the tran-
scribers of books and MSS., from the stations they took up and
occupied near the gateways of monasteries, and other ecclesi-
astical foundations, for the sale of their works; and probably
for the purchase of similar productions from the monks, who
were well-known as transcribers long before the art of printing
was invented. Most of the earliest printers seem to have been
stationers, and in fact no printer was allowed to follow that
occupation except licensed by this body.
:
After printing became common, the Stationers' Company
purchased the copies of books in sheets, bound them up, and
sold them by retail.
They do not appear, however, to have had any authority as
to the exclusive printing and publishing of books until they
were chartered by royal licence by Philip and Mary, on the
14th of May, 1556, under the cognomen of "The Master and
Keepers, or Wardens and Commonalty of the Mystery or Art
of Stationers," an incorporation of booksellers and printers,
who, for their general benefit, determined to keep a register, in
which should be entered the title of every new book, the name
of the proprietor thereof, and the successive transfer of such
8
proprietorship. The first book entered in their register was in
1558 to William Pekerynge, entitled “a ballet,” and called
"Arise and Wake," iiijd.* In 1566 a sheet was printed en-
titled “Ordinances decreed for Reformation in Printing and
Uttering Books." This was an order of the Star Chamber, to
which were attached the names of some of the Privy Council,
viz., Lord Keeper Bacon, Marquis of Winchester, Lord Trea-
surer, Earl of Leicester, &c.-" such ordinance being designed
to prevent the bringing in the printing of books against the Re-
ligion Established." Queen Elizabeth confirmed the charter of
the Company in the first year of her reign. The Company then
appears to have had the privilege of printing the Bible, A B C's,
catechisms, almanacs, law and other books. But in 1575
certain other persons applied for and obtained the exclusive
privilege of printing ballads, damask paper, books in prose and
metre, &c., "very much to the detriment of the members, and
many poor persons employed by the Stationers' Company;"
and they consequently petitioned the Lord Keeper to present
their complaint to her Majesty, but without success.
The Queen granted patents in the 15th year of her reign to
ESTE, BYRDE, and TALLIS, musical composers, to print all music-
books and ruled paper; and to William Seres, who kept a
shop with the sign of the "Hedge-Hog," in a large building
called St. Peter's College, which building at the general dissolu-
tion of the religious houses was done away with, and became
private property. Seres was a printer, and servant to Cecil, the
private secretary to King Edward; and Cecil gave him a licence
to print all manner of private prayers, called primers, and that
* J. Paine Collier published a list of the entries in the Stationers' Hall
Registry of books, with notes and extracts from them, during the period
of 1557 to 1570; and a further list has been added by Arber, down to the
year 1630, in three thick quarto volumes, which give not only the titles
of the books, but facsimiles of their original type. They are to be found in
the British Museum, among the Catalogues. And it is said that another
volume will shortly be added, to complete the series to the present time.
In which was enacted the forfeiture of all books, the disability to use
the art of printing, and imprisonment for three months, against any printer
disobeying its injunctions, &c.
9
none else should print them upon pain of forfeiture of the same;
"provided that before the said Seres or his assigns did begin
to print the same, he or they should present a copy thereof, to
be allowed (sanctioned) by the Lords of the Privy Council, or
the Lord Chancellor, or by the King's four ordinary chaplains,
or two of them; and when the same was or should be from
time to time printed, that the said Lords and other the said
Privy Council, or by the Lord Chancellor, or with the advice of
the Wardens of the same occupation, the reasonable price there-
of be set, as to the leaves, as being bound in paste, or boards,
in like manner as was expressed in the end of the Book of
Common Prayer." This licence was taken away by Queen
Mary, but after her death was restored by Cecil to Seres, who
afterwards assigned his presses, stock in trade, &c., to Henry
Denman, who took seven young men of the Company of
Stationers to join him-" but certain inferior persons of the
Company, setting up more presses than England could bear, did
print other men's copies, forbidden to them, and privileged to
others by the Queen's patents." After a long contest it was
agreed that those who had privileges were to grant some allow-
ance to the Company of so much per copy for the maintenance
of their poor. This matter took place about the year 1583.
John Jugge, the Queen's printer, got the privilege of printing
Bibles and Testaments, the which had been common to all
printers; Richard Tothil, all law books, who sold the same at
extravagant prices, to the great detriment of the poor students;
John Day had the sole printing of A B C's and catechisms,
with the sole liberty of selling the same by colour of commission.
These books, had been the great support of the poorest sort of
the Company, so that the Company petitioned the Lord
Treasurer for licence to print two little Latin books that were
much in request, setting forth that they were a very poor Com-
pany, and not able to bear the charge laid on them for FARMING
THE RIGHT* to print such books; and pleaded their inability to
* FARMING THE RIGHT then meant an exorbitant bribe, which was not
an uncommon case in days gone by. There is no doubt but that monopolies
of various kinds were the subject of much abuse, and were granted by way
10
keep the many poor hands that were belonging to them, with-
out some of these privileges." Christopher Barker, one of the
Queen's printers, writing to Lord Burghley, facetiously calls
this Company Stationers, Booksellers, Binders, Joyners,
Chandlers, and others, being freemen of the said Corporation.
In 1587 the number of printers throughout the kingdom
was limited by law to twenty. The charter of Philip and Mary
confined the art of printing to stationers. In consequence of
the above privileges being taken away, the Stationers' Company
were limited to the printing of casual and miscellaneous works,
books of entertainment, sermons, pamphlets, and ballads. They
were, however, by an arbitary measure of the Star Chamber,
afterwards appointed to be the conservators of the licences for
the printing of books; and they were required to watch over
the publication of political tracts from their possible bearing of
a seditious tendency; there being no newspapers* at that time,
and much opposition to that arbitary Government. The powers
given to this Company by the Star Chamber were by no means
of a popular kind. They were required to exercise an un-
limited inquisitorial power over all literary productions that
emanated from the press; they had permission to search
houses and all printing establishments for any publications that
were considered obnoxious to the reigning party or their own
of favouritism at an early period, as they have to a certain extent continued
to the present time. In the debates on the subject of the abolition of
monopolies, when that of playing-cards was mentioned, Sir Walter Raleigh
blushed! Upon the reading of the list of patents, Mr. Hackwell, of Lin-
coln's Inn, stood up and asked: "Is not bread there too?" "Bread !" says
one; "Bread!" says another. "This request seems strange," says one of
the members. "No, not in the least," says Mr. Hackett, "for if not speedily
prevented, a patent for bread will be procured before the next session of
Parliament." This conversation was towards the close of the reign of Queen
Elizabeth, when it was notorious how many patents for the exclusive publi-
cation of books were given; and among others to Edward Darcy for cards,
&c., which were the subjects of favouritism.
* The first newspaper published in England was entitled "The English
Mercurie," imprinted at London by the Queen's Printer in 1558, copies
of which are in the British Museum,
11
interests; they might seize, burn, destroy, take away, or convert
to their use whatever they might deem to be printed contrary
to the form of the licensing statute, act, or proclamation, then
made or that might be made; and they were not unfrequently
opposed in their attempts at making searches. The case of
one Roger Ward is especially mentioned as that of an incorrigible
offender, who gave the Master and Wardens much trouble
because he chose to print anything that suited his fancy. On
one occasion his wife and servants forcibly refused to allow the
Master and Wardens to search his premises, notwithstanding it
was in opposition to royal authority.
At the time of their incorporation, the Company numbered
94 members, whose names were attached to their charter.* By
the Star-Chamber decree in 1585, "Every book, or other printed
document, must be licensed. Nor shall anyone print any
book, &c., against the form or meaning of any restraint con-
tained in any statute or law of the realm, or contrary to any
ordinance set down for the good governance of the Stationers
Company." Thus it would appear that the object of bestowing
these powers on this Company was the performance of certain
onerous duties of state in the censorship of the press; and for
the suppression of political and religious works supposed to be
inimical to the Government or the State Church.
In 1573 there are entries in the register-book of the sale of
copies, and their prices. In 1582 provision is made in one of
their bye-laws, "that if it be found any other has a right to any
of the copies entered in the Register, then the licence touching
such copies so belonging to another person shall be void; and
that fines shall be imposed upon men for printing other men's
copies." Thus we see at this early period that literary rights
were respected, and infringement punished by fines, among the
members of this community, as well as bought and sold fairly,”
according to the ideas that prevailed in those days.
In 1611 the Stationers' Company purchased the old house
which in the reign of Edward III. was the palace of John, Duke
* They now number from 1,000 to 1100 members of all trades and
professions.
12
of Bretagne and Earl of Richmond, which was afterwards
occupied by the Earl of Pembroke, and in Elizabeth's reign
belonged to Lord Abergavanny, and took possession of it; but
it was entirely burnt down in the great fire of 1666, whereby it
is said the Company lost £200,000.
In 1615 the Company obtained a renewal of their charter for
the sole printing of Primers, Psalters, both in metre and prose,
with and without musical notes; almanacs and prognostica-
tions in the English tongue; A B C's, both in English and
Latin, &c.; which monopolies had been taken away from them.
in the early part of Elizabeth's reign.
Cassell's "Old and New London" tells us that "The Bible
printed by the Stationers' Company in 1632 had the curious
omission in the Seventh Commandment of the word "NOT;" for
which Archbishop Laud made a Star-Chamber prosecution, and
laid a heavy fine upon the Company, who suppressed all the
copies they could lay their hands on. It is called the "Wicked
Bible," a copy of which is in the British Museum. In another
and later edition, in Psalm xiv., for the Word "no," in the
text "The fool hath said in his heart, There is no God," they
substituted the letter " a.
39
In 1622 King James granted a patent to George Wither for
the publication of a book called "Hymns and Songs of the
Church." The privilege of this patent was, that a copy of
Wither's book was to be inserted, "in convenient manner and
due place, into every English psalm-book in metre ;" and that
the printing of it for fifty-one years was reserved to himself and
his executors. The poet had won the favour of the King, who
gave him this patent, partly as an encouragement to such
endeavours, and partly as a means of raising Wither's fortunes
after the poverty caused by his imprisonment. The patent,
however, was of no service to him. The Stationers' Company
refused to bind the "Hymns" with the Bible. When the case
was tried, the patent was condemned, and Wither's book had
to be sold by itself. These "Hymns and Songs" were mostly
* The late Rev. H. E. Havergal, M.A., published a small edition of
Wither's "Hymns and Songs," with some of the tunes to which they were
13
composed in prison, and were intended to supersede the metrical
performances of Sternhold and Hopkins. In 1624 Wither
addressed a pamphlet to Archbishop Abbot and the other
bishops, on the necessity of improved psalmody in the churches.
He lamented that the language of the Holy Ghost was put in
rude and barbarous numbers; while wanton fancies were
painted and turned in the most elegant speech. Using the
image of the prophet Haggai, he said that "the people dwelt in
ceiled houses, while the Ark of God was without shelter." The
failure of his patent, after becoming liable for £300 in the
publication of his "Hymns," reduced him to great poverty.
This is one of the cases in which the Stationers' Company
used their arbitrary power, even in opposition to Royal au-
thority, to the ruin of an estimable man, and against the
introduction of a higher class of metrical psalmody than that
of Sternhold and Hopkins; which would doubtless have
superseded that doggrel, and stopped the sale of their own.
copy," which is said to have "apt notes to sing them withal."
A copy of which I met with by accident lately, dated 1687.
originally set by Orlando Gibbons and Tallis, to which he has prefixed
the following preface:—“The history of these Hymns' is briefly this.
Composed at the invitation of the clergy, they were revised and authorised
by Archbishop Abbot, who gave order to alter one word only."—" Besides
the ordinary allowance of authority," they had "the particular approbation
of the King (James I.) himself and of Convocation,”—and in consequence
were commanded by the Royal patent, dated Feb. 17, 1622-3, "to be in-
certed in convenient manner and due place into euerie Englishe psalm-book
in meeter."-They were printed in 4to and 12mo in 1623, and in 8vo and
12mo probably in 1624. In defiance of those commands, the monopolising
Company of Stationers maliciously endeavoured to prevent their sale.
Hence the volume has been so little known. "The larger and more useful
portion of these beautiful compositions is herewith reprinted (1846)."
These Hymns were fitted with tunes by that rare musition Orlando
Gibbons," some of which are appended to this little volume. "Neverthe-
lesse all, but some few, may be sung to such tunes as have beene heretofore
in use."
14
CHAPTER III.
STAR-CHAMBER DECREES AND BYE-LAWS, &c.
In 1637 a decree was passed-13th Charles I.-by which
printers were placed under several arbitrary regulations. No
printing was to be carried on except in the city of London, and
no one should import from abroad or put to sale any books
which the Company of Stationers or any other person had or
should by any letters patent, order, or entrance in their regis-
ter-book, or otherwise have the right, privilege, authority, or
allowance solely to print, on penalty of forfeiture of books, and
such fine as the Court should think fit to levy.
In 1640 the infamous Star Chamber was abolished.
From the great rebellion in 1640 to the restoration in 1660
the subject of the exclusive property in literary works was not
lost sight of, although attempts were made to induce the govern-
ment to allow all books to be printed by anybody who wished
to do so; yet Offspring, Teatly, Burges, Calamy and others,
who were much favoured by the ruling party, made strong
representations against such malpractices to Parliament, urging
the facts that large sums of money had been paid by booksellers
and stationers to authors and others in the production of useful
books. We conceive it to be both just and necessary that
they should enjoy a right to the sole printing of their copies,
for unless they do, all scholars will be utterly deprived of any
recompense for their studies and labours in writing and pre-
paring books for the press, to the great discouragement of
learned men, and the abuse of all kinds of learning." These
representations had the desired effect, and an ordinance for the
suppression of these great abuses was published June 14, 1643.
In 1644 Milton published his famous speech on the liberty
of unlicensed printing, against the ordinance of the Star
Chamber, in which he says, "God forbid that any man's right
be gainsayed."
15
In 1649 the Act of 13 & 14 Chas. II. forbade anybody
to print any book without being licensed and entered in the
register-book of the Stationers' Company; which licence, with
its arbitrary regulations, was abolished in 1679.
In 1681 we find a bye-law which states "that divers members
of the Company had great part of their estates in copies; and
that by ancient usage, when any books or copies were entered in
their register to any member of the said Company, such persons
were always reputed as the proprietors, and ought to have the sole
printing thereof."
In 1667 Milton sold the copyright of his "Paradise Lost"
to Simmons for £5, but he took good care to secure to himself
another £5 after the sale of 1,300 copies, and also an agree-
ment to receive £5 for every 1,500 copies afterwards; but as
he only received two instalments before his death, he reserved
the same right to his widow, who sold the exclusive right to
the same publisher for £8, by a receipt dated April 29, 1681.
It afterwards became the property of Tonson, who brought an
action and obtained an injunction eight years after the twenty-
one years given by the Act of Anne had expired. This is, there-
fore, pretty good evidence of the existence of a common-law right
in authors, even after the passing of the Act of Queen Anne.
Lord Hardwicke granted an injunction for the sole publication
of Milton's book to Tonson in 1739 (Tonson v. Walker, cited
4 Burr., 2326; Parl. Hist., vol. xvii., p. 999). There are similar
cases cited in a book on the Law of Copyright by John Shortt,
LL.B., published by Cox, 10, Wellington Street, Strand.
In 1650, by a rescript of the Lord Mayor, the Stationers'
Company were ordered to substitute the arms of the Common-
wealth for those of the late King, and to remove the King's
picture and arms from the Hall.
Stationers' Hall was in 1677 used for divine service by the
parish of St. Martin's, Ludgate; and towards the end of the
seventeenth century an annual musical festival was instituted
on the 22nd of November in commemoration of Saint Cecilia,
and as an excuse for some good music. A splendid entertain-
ment was provided in the Hall, preceded by a grand concert of
16
vocal and instrumental music, which was attended by people
of the first rank. The special attraction was always an ode to
Saint Cecilia, set by Purcell, Blow, or some other eminent
composer of the day. Dryden's and Pope's odes are almost too
well known to need mention; but Addison, Yalden, Shadwell,
and even D'Urfey, tried their hands on praises of the same
musical saint. The 22nd of November was their grand almanac
publication day.
In 1688 application was made by a nonconformist minister
and his elders for the use of the Hall as a meeting place, but it
was refused by the Company.
By another bye-law, in 1694, after the usual recitals, and
stating that copies were constantly bargained and sold amongst
the members as their property, and devised to their widows for
their maintenance, and to their children as legacies, "it is
ordained that when any entry shall be made of any book or
copy by or for any member of this Company, in such case, if
any other member shall without licence or consent of the
member for, or to, or by whom the entry is made, print, or im-
port, or expose for sale, &c., they shall for such copy forfeit the
sum of twelvepence;" which forfeits were to be paid into their
treasury. "And it is ordained for the better preservation of the
said ancient usage from being invaded by evil-minded men."
The first action brought for piracy was for the "Pilgrim's
Progress," soon after the expiration of the Licensing Act; but
there does not seem to have been any settlement of it. This
Act was revived in the reign of James II., who granted a
monopoly to the two Universities and the Stationers' Company
for the sole printing and publishing of almanacs, which that
Company carried on by injunctions and prosecutions for a century.
The history of the royal pretensions to grants of this kind,
is succinctly stated by Lord Eldon, in Gurney v. Longman, as an
instance of the necessity of caution in similar claims. His
Lordship is reported to have said, "It appears to me, in the
case of Millar and Taylor, that the Crown had been in the con-
stant habit of granting the right of printing almanacs, and
at last that James II. granted that by charter to the Sationers'
17
Company. At length one Carnan,* an obstinate man, insisted
on printing them. An injunction was granted to the hearing,
but the Court of Exchequer directed the question to be put to
the Court of Common Pleas, "Whether the King had a right
to grant the publication of almanacs, as not falling within the
scope of expediency, the foundation of prerogative copies."
That Court returned for answer twice, "that the charter
was void, and that almanacs were not prerogative copies."
The injunction was accordingly dissolved after a century of
prosecutions and usurpations by the Stationers' Company.†
True, however, to their ancient despotic proclivities, they
petitioned Parliament to be allowed to bring in a Bill upon
which to found an Act to secure to them a continuance of their
"Old Moore's" and other almanac monopolies. But the man-
ner in which they had carried on their prosecutions for so
many years had so thoroughly shown up the injustice of their
proceedings, that their Bill was rejected by the legislature with-
out hesitation. The licensing system was, however, kept up by
royal authority, even to the reign of George III.
The following is a copy of one of the royal patents.
ANNE R.
Whereas Our Truly and Well-beloved Richard Smith, of our
City of London, Bookseller, has humbly represented unto Us,
that he has, with great Labour and Expence, prepared for the
Press, a new Edition of the Sermons, and other Works,
written in English by the Right Reverend Father in God, Dr.
William Beveridge, Bishop of St. Asaph, deceased; and has
therefore humbly besought Us to grant him Our Royal Privi-
lege and License, for the sole Printing and Publishing thereof,
for the Term of Fourteen Years: We being willing to give all
due Encouragement to Works of this Nature, tending to the
* 2 W. Bl. 1004.
+ In consequence of this decision, it was enacted that £500 each
should be paid to Oxford and Cambridge Universities out of the duty
upon almanacs as a compensation for £100 a year, for which they had de-
mised to the Stationers' Company the privilege of printing almanacs.
C
18
Advancement of Piety and Learning, are graciously pleased to
condescend to his Request: And do therefore, by these
Presents, grant to him the said Richard Smith, his Executors,
Administrators, and Assigns, Our Royal License for the sole
Printing and Publishing the English Works of the said late
Bishop of St. Asaph, for the Term of Fourteen Years, from the
Date hereof; strictly forbidding all Our Subjects, within Our
Kingdoms and Dominions, to Reprint the same, either in whole,
or in part: or to import, buy, vend, utter, or distribute any
Copies thereof reprinted beyond Seas, during the aforesaid
Term of Fourteen Years, without the Consent and Approba-
tion of the said Richard Smith, his Heirs, Executors, and
Assigns, under his or their Hands and Seals first had and
obtained, as they will answer the contrary at their Perils.
Whereof the Master, Wardens, and Company of Stationers are
to take notice, that the same may be entered in their Register,
and that due Obedience be rendered thereunto. Given at Our
Court at Kensington, the 5th day of June, 1708, in the Seventh
Year of Our Reign.
By Her Majesty's command,
SUNDERLAND.
The entry of books in the Register of the Stationers' Company,
had been so often recognised and treated as equivalent to proof
of ownership by decrees and other acts, that a legal title was
thought to be attained by it, even paramount to that of the King's
patentee, if he had not registered his work there: and Atkyns,
who held a patent from the King for printing all books touch-
ing the Common Law, finding parties acting in defiance of it
on the pretext of priority of title by entry, petitioned the King,
who issued a proclamation,* wherein, after stating that differ-
ences had arisen between the Stationers' Company and Mr.
Atkyns, to whom the King had granted the sole right of print-
ing all law books, owing to divers copies of such books being
entered in the register-books of the Stationers' Company, by
which a private property was pretended to be gained thereto;
* Dated November 8, 1671.
19
it was stated to be his Majesty's pleasure, that no book con-
cerning the Common Law should be entered in the register-
book, so as to give the person entering it any property in such
book, but that the printing thereof be solely reserved to the said
Edward Atkyns.
In the reign of William and Mary, when the licensing mono-
poly was about to expire, it was renewed by the 4 Wm. & M.,
c. 24, s. 15, for a year, from February 13, 1692, O.S., and
from thence until the end of the next session of Parliament.
"It may appear somewhat strange," says Mr. Lowndes, "that
in times when liberty so zealously asserted her rights, a Bill
which so completely fettered the press should have been re-
newed; but it was, in a manner, secretly passed through the
House of Commons, it being an amendment proposed in Com-
mittee to a general Act for renewing about a dozen statutes.
then about to expire. And when the motion was put, that the
House agreed with the Committee in that amendment, it was
carried by a majority of only 19 out of 179 members present.
On being submitted to a Committee in the House of Lords, a
petition was presented by several booksellers, binders, and
others, dealers in books, and printers, praying to be heard
before passing the Bill, when it was ordered that they should
be heard. But they do not appear to have been successful,
as the Bill was soon after read a third time and passed. A
protest was, however, drawn up by eleven Lords, which con-
cludes thus against the Bill: "Because it subjects all learning
and true information to the arbitrary will and pleasure of a
mercenary, and perhaps ignorant, licenser; destroys the pro-
perty of authors in their copies, and sets up many monopolies."
We learn also from "Reasons,* humbly offered to be considered
before the Act of Printing be renewed," that this destruction of
property referred to certain malpractices in the management of
the register-book of the Company of Stationers. The Com-
pany, who, it appears, were not privileged to do so by any
express words in the statute, sometimes asked large sums of
* From a broad-sheet in the British Museum, entitled "Reasons," &c.,
as above.
20
money for making an entry in the Register, and at others
refused, or neglected to enter books; and that they not un-
frequently made false entries and erasures, to the confusion
of all property. It was also alleged that the terms of the Act
itself were liable to misconstruction, as it seemed to make the
fact of entry equivalent to proof of legal ownership. By the
said Act it is enacted, that a book being licensed, and entered
in the register-book of the Stationers' Company, "it is forbid
to be printed without the owner's licence (who by virtue of that
entry is owner), under the penalty of 6s. 8d. a copy; which
Register hath, by the undue practices of the Master and War-
dens, been so ill-kept, that many entries have been unduly made,
insomuch that the true proprietors, both by purchase, licence,
and entry, all duly made of several books, which afterwards
have been erased (or the leaves wherein they have been written
have been cut out), and undue entries made to others who had
no right; which is directly contrary to the plain words and
meaning of the said Act, whereby the owners have not only
been defrauded of their rights, but also rendered liable to the
penalty of 6s. 8d. per copy for all books they printed, sold, or
bound." Many learned authors have been defrauded of their
rights thereby, who, after many years' pains and study, and
afterwards by a bare delivery of their books to be licensed, have
been barred by surreptitious entries made in the said Register
(to instance, in the book called "Reguli Placitandi," among
many others, written by a learned lawyer and worthy Member
of Parliament).
Whether these statements had anything to do with the penal-
ties enacted against the registrar's refusal or neglect to enter,
according to the future Acts for Copyrights, it is impossible to
say. The Licensing Act so renewed had but a short duration ;
but another attempt was made to renew the Act of 13 & 14
Car. II., c. 23, when the House rejected it, and ordered the
Committee to prepare a Bill for the better Regulating of Print-
ing and Printing Presses. The Company of Stationers having
heard of this Bill, presented a petition against it, alleging that
"if their property should not be provided for, many widows and
21
others, whose sole livelihood depended on the petitioners' pro-
perty, would be utterly ruined." The Commons, not liking the
passing of this Bill, desired a conference, and among other reasons
objected to the clause of prohibiting any printing before entry
in the Register, except Proclamations and Acts of Parliament,
"whereby both Houses are disabled to order anything to be
printed; and the Company are empowered to hinder the print-
ing of all innocent and useful books, and have an opportunity
to enter a title to themselves and their friends for what belongs
to and is the labour and right of others." Here, then, we may
see why Mr. Godson, in his work on "Patents and Copyrights,"
called this delectable Company "the monopolists of books and
the destroyers of literature ;" and why the opposition to their
monopolies induced them in a bye-law to term their opponents.
"evil-minded men." Some of the old leaven seems still to stick
to them, if we may judge from the courtesy frequently displayed
at Stationers' Hall Registry of late years.*
* Peter Cunningham, in his "History of London," tells us "that the
great treasure of the Stationers' Company is its Register, where every publi-
cation, from a Bible to a ballad, was required to be entered." One is some-
what at a loss to quite understand Peter's statement of what this “ great
treasure" consisted-whether it was the amount of the fees extracted from
the authors' and publishers' pockets for the entry therein, for Peter does
not say anything about the fees, which began in the reign of Anne at 6d.
and then were enhanced by the Act 54 Geo. III., c. 156, to 2s., and 1s. for
a copy, and another 1s. for peeping into the book; and by the Act 5 & 6
Vic., c. 54, to six times 5s. for entry, and another six times 5s. for copy of
entries, and then 1s. each for every entry searched for or inspected in the
said book, which book you cannot inspect until you have made a search for,
what you want to "inspect" in the indexes tendered to you for the search;
and if you don't find what you want in the index, you must pay for not in-
specting the "book." Very few people know that every book which is
entered at Stationers' Hall ought to find its way to the British Museum;
and no book ought to be entered without the registrar's seeing that it is
published, and corresponds with the document brought for entry.
22
CHAPTER IV.
ON THE ACTS OF PARLIAMENT ON COPYRIGHT.
""
It would appear that previously to the passing of the first
Act, viz., 8 Anne, c. 19 (1710), piracy was rampant among
the printers and small publishers; that Act being the result.
of continuous petitions, and applications to Parliament by book-
sellers and others for the redress of their grievances, and pro-
tection from piracy, from 1703 to 1709, the Act being passed in
1710; these piracies were made by persons so poor that actions
brought against them were utterly futile, as they had nothing
to pay with. It is said the title of the Bill brought into Parlia-
ment, which was to be the foundation of an Act, was "A BILL
TO SECURE THE UNDOUBTED PROPERTY OF COPIES FOR EVER.'
It is not easy to see, therefore, how a Bill to secure the rights in
literary property to authors and their assigns could be turned
into an Act to take that property away, after a limited period,
especially as this Act was passed for the encouragement of
learned men to compose and write useful books; and that "the
authors and their assigns shall have the sole liberty of printing
and publishing any book which shall have been published before
the 10th of April, 1710, for the term of twenty-one years, to
commence from that day," thus acknowledging that a previous
right existed before the passing of this Act. There can be no
doubt but that the Bench generally considered the Act of Anne
did not interfere with the vested rights of authors, especially as
that Act was called " An Act for the Encouragement of Learning,"
by vesting in the authors or purchasers of the copies of printed
books the rights during the times therein mentioned. Yet by the
case of Donaldson and Becket,* the House of Lords decided by
a majority of six judges against five (Lord Mansfield not voting)
that the Act of Anne took away the common-law right, and
therefore the term of copyright must in future be subject to
* Donaldson v. Becket, 4 Burr, 2408.
23
the limitation of the statutes. This decision has never been
reversed, although admitted to be unjust.
By the Act 13 & 14 Car. II., c. 33, a clause was inserted
which obliged the printer of every work to reserve three copies:
one for the King's Library, and one each for the Universi-
ties of Oxford and Cambridge. And this was the foundation of
the present claim of public bodies to a copy of every work
published. The Bill on which the Act of Anne was founded
originally only required three copies to be given, as before;
but in its passage through the Commons two more copies were
added for Sion College and the Edinburgh University. But
the Scotch peers thought this too good an opportunity to be
lost for enriching their public libraries at the expense of the
poor author; accordingly four more copies were added for
Scotland, making nine; and the rendering of these copies was
made compulsory under a penalty of £5 and the value of the
work for every default of delivery. By the Act of the Union
with Ireland (where piracy had been carried on to a great
extent) that country was included in the Copyright Laws, and
two others copies, one for Trinity College and another for
the King's Inns, Dublin, were added to the compulsory gift.
making eleven copies of every work published to be forced from
the publisher to provide books without fee or reward to these
rich educational establishments; and they were to have those
printed on the best paper, and bound.
CHAPTER V.
OPERATION OF ACTS OF PARLIAMENT.
The decisions in the cases, that there was no common-law
right in authors after the passing of the Act of the 8th Ann,
"alarmed the universities for their copyrights. These power-
ful bodies, allied as they were to both Houses of Parliament by
ties and associations, had no difficulty in obtaining that authority
for themselves which was sternly denied to the owners of copy-
24
right at large." Thus the Act of 15 Geo. III., c. 53, which
enabled the Universities and Colleges of Eton, Westminster,
and Winchester to hold copyrights in perpetuity, was passed;
which, considering the times in which we live, and the compul-
sory furnishing of books to these universities, and the limitation
of the term of copyright to authors, ought to be, at least, put
upon the same footing as authors themselves.
The "Oppressive Library Tax," has ever been distasteful to
the booksellers, and they tried by every possible means to
avoid it. They therefore only entered the first volume of any
large work they published, which, of course, would be useless,
and was seldom demanded. To remedy this a clause was in-
serted in the above Act, that no penalties under the 8th of
Anne should accrue, "unless the title to the whole copy of
the work, and every volume thereof, should be entered in the
Register, and unless nine copies were delivered to the warehouse-
keeper of the Stationers' Company for the use of the libraries
in that Act mentioned.' "*
But the effect of this concession did
not answer the expectation; for the booksellers preferred losing
the "protection” and the assumed "encouragement” pretended
to be held out by the Act; and they consequently refused to
enter their works in the register-book for the gratuitous gift of
nine copies of costly and expensive works. They reasoned that
if they were willing to relinquish all benefits "under the Copy-
right Acts, by not entering these works in the register-book of
the Stationers' Company, there was no power, legal or equitable,
which could force them to give up their costly property;" for
the obligation could not take effect if they did not claim under
the statute; it being imposed only in exchange for the benefit
conferred. The universities taking the same view-which
indeed seemed a just one-and finding they did not get copies
of these valuable works, which were most expensive to purchase,
and that every expedient was resorted to to evade their claim to
the gratuitous delivery of copies, procured a Bill to be brought
* Consequently for the first fifty years after the passing of the Act of
Anne very few works were entered in the book of registry at Stationers'
Hall.
25
into Parliament to secure to them the right to these copies, and
to offer a supposed equivalent for this" iniquitous tax," in the
shape of an extension of the term of copyright.
The means for the further encouragement of learning by
taking away from them the common-law right, limiting the
term of protecting it to the short period of fourteen years, and
compelling them to give eleven copies of every work gratuitously
to the public libraries was "encouragement" with a vengeance!
However, the Bill was read a first time on the 16th of June,
1808, and pressed to a second reading by Mr. Villiers, who on
the 22nd moved that it should go into Committee. Sir Samuel
Romilly, however, "regretted that the most objectionable part
of the measure, the laying a tax on authors for the supply of
books to the Universities, should be insisted upon. There were
many works," he said, "which cost fifty guineas a copy,
and it was
monstrous that the authors and publishers should be compelled
to give away eleven copies, amounting to 550 guineas, when
there was no danger from the large outlay in their production,
of any piracy of them, especially as the publishers were not
anxious about the copyright; these therefore ought to be
exempted from any such tax." The Bill was then not pro-
ceeded further with, as a prorogation took place on the 4th of
July, and the next session Mr. Villiers was sent as ambassa-
dor to Portugal. Thus matters remained until 1811, when
Professor Christian persuaded the university that "the true
construction of the Act of Anne required a delivery of all the
copies, whether entry was made or not at Stationers' Hall,
and that they had a clear right to enforce the law." According
to this advice, an action was brought by that university against
one Bryer, a bookseller, for non-delivery of a book he had
published and not entered; and the King's Bench decided in
their favour. Soon after this decision, a motion was made for
an amendment of the law on this subject, by a Mr. Giddy,
which was to procure for authors and booksellers an enactment
destructive of that privilege which the decision in the King's
Bench had now enabled the universities to enforce. A petition
*
* University v. Bryer, 16 East, 317.
26
was therefore drawn up by the booksellers and publishers of
London and Westminster, complaining of the clause, and
showing the hardship in the case of expensive works, of which
only a limited number of copies were printed. They also com-
plained of the further term of fourteen years being dependent
on the authors being alive at the end of the fourteen given by
the former Act, "which," they say, "is a distinction in many
cases productive of great hardship to the families of authors,
and is not founded on just principles :" and Sir Samuel Romilly
said, “It was a mistake to suppose that the Act of Anne con-
ferred a benefit on authors; no such thing! Before the passing
of that Act, authors had an exclusive property in their works;
and the Act in question went to limit that right rather than to
enlarge it for the only privilege conferred by it went to en-
force some penalties which were immaterial. It operated in a
way most injurious to the best interests of literature. Was
not the principal object of this Act to punish the piracies which
were so rife at the time the petitions were made for the protec-
tion of authors ?" If so, it certainly could not be intended to
limit their rights, and if rightly understood, such must have
been the intention of the legislature; as is evident by some
of the decisions given by the judges-who were by no means
unanimously agreed-that the Act of Anne took away the com-
mon-law right of authors.
:
By the Act 44 Geo. III., c. 107, the extension of another
fourteen years was given, making twenty-eight years, if the
author was living at the end of the first fourteen. But as the
booksellers then declared they would not give a penny more
for a copyright for twenty-eight years than they formerly gave
for fourteen, so they now insist upon purchasing the author's
sole right of forty-two years, and very few authors are in a
position to demand that after a certain time a copyright shall
return to them or their families, be they ever in such circum-
stances as to need it. Why subsequent legislators have mani-
fested so determined an opposition to the extension of the
period of a copyright for any considerable length of time, or
why the property in the production of a man's brains should be
27
treated with less consideration than property in land or in the
funds, it is not easy to understand; but there seems to be an
unaccountable prejudice against acknowledging and admitting
that property in a book of immense value to the community at
large should not be deemed as sacred and genuine a right as
that in a freehold or copyhold estate. It is true that one is
the result, very often, of years of laborious study, industry,
thought, and research, while the other is frequently owing to
the accident of birth, or the good luck of speculation; but if we
look at the case in its true relation to the benefits conferred on
society, who is so great a benefactor to his species as the man
of genius and learning, whether his works be literary, musical,
or artistic? How many millions of human beings have been
delighted, and pecuniarily benefited by the performance of the
works of Handel and other great musical geniuses, at the grand
musical festivals, given for charitable purposes alone? How
many millions of printers, booksellers, papermakers, book-
binders, typefounders, pressmakers, toolcutters, artists, en-
gravers, and others, have been clothed, fed, and enriched by the
printing, publication, and sale of the works of men of genius,
and learning-literary, musical, and artistic; many of whose
descendants, so far from participating therein, have died
neglected and in poverty, while some of the publishers of their
works (which the state of the law has permitted them to print
without fee or reward to the progeny of their originators) have
realised large fortunes by them! It is to this side of the picture
that we should look when we are obtaining knowledge from the
perusal and study of these works, or when we are receiving the
highest gratification from the reading, exhibition, or performance
of them. There would be little need of the (I had almost said
beggarly) gratuities bestowed on the widows or families of such
men, or sometimes on the men themselves, in the latter years
of a life devoted to their art, if a proper appreciation of their
rights had been well considered and acted upon before the law
had been settled so unsatisfactorily. But there is still the
opportunity in the proposed new Act to make the amende
honorable. Let us hope it will be properly considered.
28
CHAPTER VI.
ON THE BILL BROUGHT INTO PARLIAMENT TO REDUCE
THE NUMBER OF COPIES DEMANDED BY THE PUBLIC
LIBRARIES UNDER ACTS OF ANNE AND 41 GEO. III., &c.
This Bill was brought into Parliament by Sir Egerton Bridges
in 1817, to reduce the number of copies demanded previous
to the Act of Anne, viz., "three." Numerous petitions in
favour of and against this Bill were presented; and among the
rest "from certain authors and composers of books," who
remarked: “The petitioners humbly submit that in this great
commercial and wealthy country, reputation alone cannot be a
sufficient stimulus to authors to compose or publish valuable
works, and more especially those which involve much expense;
the affluence of the country operates not only to make the
annual expenditure for subsistence considerable, but also to
enhance the charges of every publication, the same prosperity
of the country leading to costly habits of living, prevents men
of literary reputation from holding the same rank in this
country that it obtains in some others; justice also to the
families who have to derive their nurture and respectability
from parental labours, compels the parents to devote some
portion of their attention to pecuniary considerations. Hence
an author can rarely write for fame alone; and every sub-
traction from his profit, and every measure that will diminish
his ardour to prepare, and the readiness of booksellers to pub-
lish his work—especially as so many may require such large
sums to be expended and risked upon them—is an injury, not
only to authors, but to literature itself. That not only great
national celebrity arises from superior excellence in works of
art and literature, but it may be considered to be equally true
that whatever discourages or obstructs the progress of litera-
ture (and the fine arts) in any country, will produce in time a
29
national inferiority; and those political effects will be severely
felt when they will be, with much difficulty, remedied.”
The booksellers complained very much, and with some
justice, that the libraries, with the exception of two, did not
confine their demands to useful books, but exacted a copy of
every work, however trifling it might be; even novels and
music.* In the course of the debate Mr. Brougham said:—
"Certainly the provisions of the Act rendered it necessary to
be amended, as it imposed a greater burden on authors than
they ought to bear. It certainly was not any 'encouragement
to learning' to impose on poor men the task of supplying the
universities with books, and thereby unnecessarily sparing the
funds of those rich and well-endowed bodies."
A Committee was appointed to search into the origin of this
delivery of copies, and to report thereon to the House; which
they did on the 5th June, 1818, and after tracing it from the
early agreement made by Sir Thomas Bodley with the Stationers
Company,† remarked that in no other country was there a
demand of this nature to the same extent. In America, Prussia,
Saxony, and Bavaria, one copy only was required; in France
and Austria, two; and in Belgium, three. They concluded by
advising that this gratuitous delivery be done away with except
as regarded the British Museum, and if the copyright be
actually abandoned, then that no delivery at all should be
necessary. On the report being given in, a debate arose, and
it was then urged against the adoption of it, that the resolutions
the Committee had come to were carried by a slight majority;
a majority of only one in one case, and of the casting vote of
the chairman in another. The report, however, was ordered to
be printed; but the Parliament shortly after breaking up,
nothing more was done with the Bill, and when the new
* It is a curious fact that applications were made from the universities
so late as 1874 for the popular comic songs of the day, such as
“Cham-
pagne Charley," "Tommy, make room for your Uncle," and such like
classical works.
† Which was a private agreement between Sir Thomas Bodley and that
Company, and had no foundation in any Act or State ordinance.
30
Parliament met on the 14th of January, 1819, the subject was
not resumed, although on the 22nd of March a petition for the
alteration of the existing law was presented by the booksellers,
in which it was stated that the delivery of eleven copies of
only five works-viz., Dugdale's "Monasticon," his "History
of St. Paul's," "Portraits of Illustrious Personages," Orme-
rode's "History of Cheshire," and Wood's "Athenæ Oxiensis,"
would amount to £2,198 4., and that the delivery of only one
work, Dodwell's "Scenes and Monuments of Greece" would
be £275 at trade price.
We do not find the subject mentioned again for twelve years,
when Mr. Spring Rice suggested to buy up the right of the
Mareschal College of Aberdeen, when the hardship on the
proprietors of copyrights was again referred to, and a wish ex-
pressed to do away with this " oppresive tax." Such was the
state of affairs until 1836, when a Bill to do away with the
eleven copies was the cause of an Act, 6 and 7 William IV.,
c. 110, to reduce the number to five, which has remained in
operation ever since-although the six denuded libraries were
compensated by being allowed a money payment annually of
£3,029 1s. 10d. out of the Consolidated Fund, which is paid to
the present day.*
The next Act on Copyright is that of 8 Geo. II., c. 13 (1735),
which is called "An Act for the Encouragement of the Arts of
Designing, Engraving, and Etching Historical and other Prints,
by vesting the properties thereof in the inventors and engravers
for fourteen years."
"
This was repealed by 5 & 6 Vic., c. 45, s. 1.
Then in the 12 Geo. II., c. 36 (1739), an Act was passed for
prohibiting the importation of books reprinted abroad, and first
composed or written and printed in Great Britain; and for
repealing so much of the 8th of Anne as empowered the limiting
the prices of books.
* It is stated on good authority that the annual value of the books
obtained by the four Collegiate Libraries from the publishers gratuitously
amounts to upwards of £1,500 for each and that they pay a handsome
salary for collecting them.-ED.
31
Then came an Act, the 7 Geo. III., c. 38 (1766), to amend
and render more effectual an Act made in the 8 Geo. II., for
encouraging the arts of designing, engraving, and etching his-
torical and other prints, and for vesting in and securing to
Jane Hogarth, widow, the property in certain prints engraved
by the celebrated Hogarth, her husband.
Then an Act was passed, 15 Geo. III., c. 53 (1775), to en-
able certain colleges and universities to hold copyrights in per-
petuity, in any works presented or bequeathed to them for the
advancement of learning; which Act has never been repealed.
Then an Act, 17 Geo. III., c. 57 (1777), for securing more
effectually the copyright in prints, &c.
Then came the Act 41 Geo. III., c. 107 (1801), which gave to
authors a second fourteen years, if they were living at the end of
the first fourteen, enacted by 8 Anne, and which added to the
“Library Tax"two more copies for taking from authors the rights
and privileges which they held before the passing of these "Acts
for the encouragement of learned men to write useful books."
Then was passed an Act 54 Geo. III., c. 56 (1814), for en-
couraging the art of making new models, casts, and busts, &c.
And in the same year was passed the Act 54 Geo. III., c. 156,
for extending the term of copyright to twenty-eight years cer-
tain, and for the author's life, which Act was partially repealed
by 5 & 6 Vic., c. 45, except where the term of copyright had not ex-
pired. And sec. 4 gave the extension to authors and their
assigns, by entering a "minute of consent," to accept the bene-
fit so conferred by the present Act.
Since the passing of the foregoing Acts, there have been enacted
the following:
3 Wm. IV., c. 15, to Amend the Laws relating to Dramatic
Literary Property (June 10, 1833)..
An Act (5 & 6 Wm. IV., c. 65, Sept. 9, 1835), for preventing
the Publication of Lectures, without the consent of the lecturer.
An Act to extend the protection of copyright in prints and
engravings to Ireland (6 & 7 Wm. IV., c. 59, Aug. 13, 1836).
An Act to reduce the Duties on Newspapers (6 & 7 Wm. IV.,
c. 76).
32
An Act to give protection to persons employed in the publi-
cation of Parliamentary Papers (3 Vic., c. 9, April 14, 1840).
An Act to Amend the Law of Copyright (5 & 6 Vic., c. 45,
July 1, 1842), see the end, where the whole Act is given.
An Act to Consolidate and Amend the Laws relating to the
Copyright of Designs for Ornamenting Articles of Manufacture
(5 & 6 Vic., c. 100, August 10, 1842).
An Act to Amend the Laws relating to Copyright of Designs
(6 & 7 Vic., c. 65, August 22, 1843).
An Act to Amend the Law relating to International Copy-
right (7 Vic., c. 12, May 10, 1844).
An Act to Amend the Law relating to the Protection in the
Colonies of Works entitled to Copyright in the United King-
dom (10 & 11 Vic., c. 95, July 22, 1847).
An Act to Extend and Amend the Acts relating to Copy-
right in Designs (13 & 14 Vic., c. 104, August 14, 1850).
An Act to enable Her Majesty to carry into effect a Conven-
tion with France (and other foreign countries) on the subject
of Copyright, to extend and explain the International Copy-
right Acts, and to explain the Acts relating to Copyright in
Engravings (15 Vic., c. 12, May 28, 1852); see also the Con-
vention with Italy, which is given in extenso further on, and
which is the same as that of all other foreign Conventions.
CHAPTER VII.
ON THE EXTENSION OF COPYRIGHT IN 1814.
By the Act 54 Geo. III., c. 156, a farther extension of
copyright was given to authors and their assigns, viz., to
twenty-eight years certain, and the natural life of the author;
and if the author made no provision to sell his copyright for
twenty-eight years and his life, but reserved the contingency
of his chance of living more than the twenty-eight years, the
copyright returned to him for the rest of his life (see sec. 4).
But, notwithstanding this provision, a contrivance was made,
33
in the assignment of a copyright, to neutralise the authors'
life contingency by the use of the words, "All my right and
title, present and future, vested and contingent;" which if an
author signed without noticing, he cut himself off from all
future participation in his work. And it was even attempted
to confer this right on no less a foreign musical composer than
Beethoven himself, if we may judge from the following copy of
a receipt sent to that eminent composer to assign the composi-
tions therein specified as follows :-" Received of Mr. Birchall,
music-seller, 133, New Bond Street, London, the sum of 130
gold Dutch ducats for all my copyright and interest, present
and future, vested and contingent,' or otherwise, within the
United Kingdom of Great Britain and Ireland, of and in the
following compositions, viz.: A Grand Battle Symphonie
descriptive of the Battle of Vittoria,' &c.; 'A Grand Symphony
in A;''A Grand Trio for Pianoforte, Violin, and Violoncello
in B;' and 'A Grand Sonata dedicated to the Archduke
Rodolph of Austria.' And in consideration of such payment I
hereby engage to execute a proper assignment when called
upon; and I promise that none of the above shall be published
in any foreign country before the day fixed upon for such
publication between R. Birchall and myself shall arrive.—
Signed, LUDWIG VAN BEETHOVEN." One of these compositions,
the grand sonata, was published by Longman and Heron, of
Cheapside, and was the cause of an application to Shadwell,
V.C., for an injunction.*
-
By sec. 6 of this Act the warehouse keeper of Stationers'
Hall was to give correct lists of all entries of books every three
* The case of Birchall v. Longman and Heron, brought before Shadwell,
V.C., as reported in the Morning Chronicle of December 18, 1818, was an
application for an injunction to restrain defendants from continued publi-
cation of a set of sonatas by Beethoven, which Mr. Birchall had paid the
composer 130 gold ducats for the MS. copyright of, and first published the
work in England. The Vice-Chancellor refused the injunction until the
plaintiff should make affidavit that the work had not been published in
Vienna, for if such was the case he, the Vice-Chancellor, saw no reason
in law to prevent the defendants or any other person from selling and
publishing them here; but the case seems to have gone no farther.
D
34
months to the librarians of the eleven libraries entitled to have
a copy of all works published, and to call upon publishers for
the same.
By sec. 5 it was enacted that if every book published was
not entered at Stationers' Hall, the publisher of any book not
so entered should be subject to a penalty of £5 and eleven
times the price it was sold at. Rather hard lines for a man,
who was compelled to give to the public libraries eleven copies
of every book he published gratuitously. Some people have
expressed surprise that Parliament did not bring in a Bill to
compel butchers and bakers to supply students of the univer-
sities with meat and bread gratuitously, which would be quite
as reasonable.
Although every effort was made to get rid of the "obnoxious
Library Tax," matters remained in this state until Mr. Bucking-
ham, on the 28th of April, 1836, moved for leave to bring in a
Bill to do away with this tax in a speech which merely reca-
pitulated the arguments already noticed. The bill remained
some time in the House of Commons, but passed quickly
through the Lords, and received the Royal assent on August
20, 1836. It enacts that so much of the 54 Geo. III. as
relates to the delivery of a copy of every book published to the
warehouse keeper of the Stationers' Company for the use of the
libraries of Zion College, the four universities of Scotland, and
the King's Inns Library, Dublin, should be repealed; and it
empowers the Lord Treasurer to make compensation out of the
Consolidated Fund to those libraries for the loss of that privi-
lege, which compensation is to be exclusively applied to the
purchase of books. The amount paid annually to these six
denuded libraries is about from £400 to £600 each, according
to their importance-(6 & 7 Wm. IV., c. 110).
On the establishment of peace with France a field was
opened for the publication of English works in Paris, there
being at that time no international law by which foreign
(English) works could be secured by copyright to their authors;
consequently popular English works were published in Paris to
some extent. Galignani, Treütel & Würtz, and others published
35
them at a much lower price than they were to be had for in
England; and people who went to Paris were permitted to
bring home a single copy which had been cut and read without
paying any customs duty until complaint was made by English
publishers of the injury to their trade, when every effort was
made to prevent such works passing the Custom House, and
they were frequently seized. Then they were smuggled over,
until an entire stop was put to such an illicit trade. Sir
Walter Scott, however, went over to Paris to try to introduce
some plan by which his works might have some security there,
but Galignani told him he could not obtain any exclusive right
in Paris; he, however, offered Sir Walter £10 for proof sheets.
This Sir Walter refused, and went to Treütel aud Würtz, who
offered him £100 for first proofs. This was accepted, but
Galignani was too deep for him; and, bribing the compositors,
got his sheets first, and forestalled Treütel and Würtz in the
publication of Sir Walter's "Life of Napoleon." This fact I
had from an English employé who was in Treütel and Würtz'
establishment at the time.
Some arguments which have been broached in opposition to
the extension of the term of copyright before the passing of the
present Act were futile in the extreme, such as that a monopoly
for a lengthened period would raise the price of books to such
a pitch that it would materially impede their general circula-
tion, and consequently abridge the spread of knowledge among
the people at large. Such an idea is opposed to the general
principles of trade, and utterly against the interest of the
publishers themselves, which has been abundantly proved by
the production of the best works at a price within the reach of
almost the poorest of the people. This is not only the case
with literary, but with musical works and the works of art,
while every facility, on the contrary, is given to the spread of
knowledge. Then there has been a confounding, very thought-
lessly, of copyright with patent right, between which there is a
wide difference, as a celebrated Scotch writer on the principles
of the law of Scotland shows. "6
Although at common law," he
says, "a mechanical invention and a literary composition may
36
be similar, there is a remarkable difference in the consideration
on which the limited monopoly of each ought to stand. In the
mechanical arts the public is concerned in the invention being
opened to them at no very distant period, for no use being
desirable from the invention without the absolute possession of
the individual machine or manufacture if the public is entirely
in the power of the monopolist. And yet the invention would
probably have been made by others if not unfairly restrained.
But in the case of a book, not only is it impossible that any
other person could have composed the same book, but it is a
kind of production of which the public has the benefit by the
knowledge diffused; the value, and consequently the power of
keeping up extravagant prices, is restrained by the interest of
both author and publisher. There are not, therefore, the same
reasons for limiting the monopoly of a copyright as there are
for setting bounds to that of inventions."
A similar distinction was made by Lord Selbourne (then
Sir Roundell Palmer) in his speech in seconding the motion of
Mr. Macfie in a debate in the House of Commons on the
subject of patent right. "Some persons imagined," he said,
"that there was a sort of either moral or natural right in
inventors to some such protection as was given by patents;
and the principle was sometimes expressed in this way, that a
man had a right to the fruit of his brains. Now, he held that
invention and discovery were essentially unlike copyright;
copyright applied to a creation. A man wrote a book, and this
brought into existence something which had no existence in the
nature of things before. The rest of the world were not in a
race with him to write that particular book. But in the case
of inventions and discoveries, the facts with which they were
concerned lay in Nature itself; and all mankind who were
engaged in pursuits which gave them an interest in the investi-
gation for practical purposes of the laws of Nature had an
equal right of access to the knowledge of those laws, and might
be equally in the track for obtaining it." Thus it may be seen
that there would be really no reason why the projected new copy-
right law should not extend the present period in granting to the
37
families of authors some advantages not now available, and some-
thing might be done to avoid that eloquent reproach of
Dryden-" that it continues to be the ingratitude of mankind.
that they who teach wisdom by the surest means shall generally
live poor and unregarded, as if they were born only for the
public and had no interest in their own well-being, but were to
be lighted up like tapers, and waste themselves for the benefit
of others."
If, then, the limitation of the ancient rights of authors had
been compensated for by a uniformity in the details of the law,
by simplicity in the mode of proving those rights, or in the
transfer of them to publishers, or even if a summary and cheap
remedy for their infringement had been enacted, something
would have been gained by the limitation of the term of copy-
right. But the fact is, that the penal clauses in the Acts have
made matters worse. No sensible man will now bring an
action for piracy unless he has plenty of money in his pocket,
and does not care about spending it in a determination to
punish a delinquent; for if he gains his cause, he is sure to be
money out of pocket by his solicitor's bill. The "glorious
uncertainty" has often deterred a man from legally asserting
his rights, even though he may have an abundance of facts to
prove them. Quibbles and quirks are sure to turn up to
damage his case, however good it may be, and to gloss over the
venality of a piracy. One point in all the foreign laws of
copyright is worthy of remark and imitation, viz., that they set
a limit to the period of all copyrights to the publishers, reserv-
ing to the author and to his descendants a farther term; but
in England, everything is given to the author for the present,
and nothing to his descendants. For who will say to an
author, "I will only purchase your copyright for twenty-one
years the other twenty-one you ought to reserve for your
family?" And few publishers care anything about the family
of an author.
Then, again, if the Stationers'-Hall Registry had continued
to be carried on in accordance with the method which they say
was adopted by themselves for their own works,-viz., that
38
when a work changed hands it was re-entered under the name
of the new proprietor thereof—some credit would have been
due to that Company, and there would have been an invaluable
document, if the public registry had been of this character, and
continued to the present time. But the Stationers'-Hall Com-
pany have not done this for anybody but themselves—even if
they have such a register "for their own general benefit,”—
and if the assertion of the clerk to Mr. Matthieson* is to be
relied on—and I see no reason to doubt it-viz., "that a large
number of books were registered with only the month, and
some with only the year, of publication," my statement in the
bookseller of June, 1869, is true, that "the entry at Stationers'
Hall has been made one of the most prolific causes of litigation,"
and the cases I have hitherto quoted are perfectly true. How
little reliance, then, is to be placed on the entries at Stationers'
Hall may be readily imagined. But it is not alone to the fact
of the negligence, or ignorance, or even the impertinence of the
officials that I wish to call attention; there is something to be
said of the Acts of Parliament on this subject, and I will
take them in rotation. First, that of Anne, which says no
person shall be subjected to any penalties for printing or pub-
lishing any book, unless the title to the copy of such book
shall be entered in the Register of the Stationers'-Hall Com-
pany, “after the manner that hath been usual," before publica-
tion. Now what was the inducement held out to make entry
in this Register? Why, that nine copies of every work published
should be gratuitously presented to the universities and certain
public libraries. Of course the booksellers declined the honour
of furnishing literary food at their own expense to these
libraries, who could much better afford to pay for books than
they could to give them. The consequence was that very few
entries were made for the first fifty years, until that ungracious
action was brought by the University of Cambridge against
Bryer, to compel the booksellers to give their works away for
the chance protection afforded by that which might never be
required. It was an understood thing that if the works were
* See his letter, p. 46.
39
not entered they could not be demanded; and although the
Act of the Union, viz., 41 Geo. III., c. 107, exacted two
more copies, making eleven, to be given by the publishers
thereof, it enacted also that no penalties should be enforced
against the piracy of any work unless it should be entered in
the register-book. Even this had not the desired effect upon
many of the publishers, who still evaded the Act, by not
entering, until the Act of 54 Geo. III., c. 156, made it a
penalty of £5, and the forfeiture of eleven copies, if neglect or
refusal to enter at Stationers' Hall Register was made by any
publisher, pursuant to that Act. This, however, was evaded
greatly, until the universities and other libraries got tired of
importunity, and did not care to risk the expense of actions.
It is also curious to observe that the Stationers' Company lent
themselves to the exaction of the library tax; and, no doubt,
were the cause of the enhancing of the fees from 6d. to 2s.
and then to 5s. for every entry or copy of entry; and they are
as hungry after these fees as any parish clerk or sexton, whose
very existence depends upon them. But the worst of the
matter is that there is not only an absence of common civility,
but an absolute invalidation of the entries, which has been
proved in our courts of law and equity, although the registrar
has escaped without punishment hitherto, as the former penalty
cannot now be enforced.
CHAPTER VIII.
OBSERVATIONS ON THE ACT OF 5 & 6 VIC., c. 45.
We now come to the present Act, which is given in full at
the end of this book, and to which some allusions have been
already made. This Act, called Talfourd's Act, although it
was eventually carried through the House of Commons by
Lord Mahon, now Earl Stanhope, was passed almost expressly
to secure to the family of Sir Walter Scott an extension of the
40
copyright in his wonderful works of fiction, which had attracted
the attention of all the world beyond any literature of the kind
ever before published, and still continues to hold the most dis-
tinguished position in the estimation of all kinds of readers.
The Act of 5 & 6 Vic., c. 45, has created more difference
of opinion in the minds of both Bench and Bar than any other
Copyright Act in our code, and it is admitted on all hands
that its present position is a most anomalous one. There is
something in the very preamble so grandiloquent that to a
common-sense mind it is not at all comprehensible. The idea
of a "law to afford greater encouragement to the production of
literary works of lasting benefit to the world" is so new
that we do not wonder that so much difference of opinion has
been taken as to its meaning; and that the word "author"
should be said to be interpreted in its largest possible sense,
so that the word is made to include every living subject of
every community of people of the known world, friend or foe,
alien, or “amy” author, in the widest sense of the word. We
go on a little further in this delectable Act, and we find that
the words, “ British Dominions," mean "all the possessions of
the Crown," both at home and abroad; and that "assigns" shall
be considered to mean and include every person in whom the
interest of an author in copyright shall be vested, whether de-
rived from such author before or after publication of any book,
and whether acquired by sale, gift, bequest, or by operation of
law, OR OTHERWISE. Then the term of copyright is fixed at
forty-two years certain, or to forty-two, and seven years after
the author's death, should he outlive the forty-two years. The
question of the seven years has never been disposed of legally.
Then by sec. 4, if any author's work has been published before
the passing of this Act, and he and his assignee agree to accept.
the benefit of the extension given by this Act, and they join in
the "minute of consent" given in the schedule, and enter it
at Stationers' Hall, then the extension to the forty-two years
under this Act shall be given to the person named in the
said minute of consent as the property of that person. Then
by sec. 8, the "library tax" for the copies for the four col-
41
legiate libraries, which ought to have been repealed, was still
enacted (with its penalties for non-delivery), if applied for
WITHIN TWELVE MONTHS of their publication. But it is not
compulsory to give them after that period.
Next we have the "Book of Registry," with the invitation to
pay 5s. for the entry therein, with the bait held out that on
payment of another 5s. for a copy of entry, "such copies,
impressed with the stamp of the Stationers' Company, shall
be received as prima facie proof of proprietorship, or assign-
ment of copyright in all courts." But sec. 24 says that the
omission to make such entry shall not affect the copyright, but
only the right to sue for piracy, which no proprietor of copy-
right can sue for until he has made the entry; but as that
entry can be made at any time before the necessity for suing
may come, the chances are that not one publication in a
hundred may be pirated, consequently £25 in every one.
hundred publications, not entered, may be saved.
By section 16, if a person in his entry does not specify
the very day of the publication of his work, or the exact names
of the firm who published it, or if not corresponding with the
title of the work, he may be defeated in an action for piracy,
have his suit dismissed, and be compelled to begin again de
novo, although he may be able to show a proper assignment
and title to the work pirated, and may be put to costs and
charges, not only of his own, but those of the pirate also.
CHAPTER IX.
CORRESPONDENCE ON THE REGISTRY AND SEARCH OF
BOOKS.
STATIONERS'-HALL REGISTRY.
From "The Times,” August 11th, 1867.
SIR,-Having occasion to make a search in the Copyright
Registry Book at Stationers' Hall a few days ago, my request
was met by the clerk with the singular-not to say impertinent
42
66 I
The
remark, "It is not convenient." On asking "Why ?"
am using the book," was the reply. I had not said what book
I wanted, but I immediately asserted my right, and quoted the
11th section of the Act, 5 & 6 Victoria, cap. 45, which says-
“And be it enacted that a book of registry, &c., shall at all con-
venient times be open to the inspection of any person on pay-
ment of ls. for every entry which shall be searched for in the
said book," &c. Finding I was peremptory the clerk handed
me an index, to which I objected that the Act said nothing
about an index; I therefore insisted on seeing the book.
clerk then referred to the registrar, who admitted the time was
convenient, but requested to know what I wanted to search
for; this I objected to as a stretch of power not recognized by
the Act, and declined to state. I mentioned, however, that the
entry was made during the month of July, but I had not the
exact date. The registrar then said, "You must give me the
name of the work or you cannot make the search," alleging
that there were persons who made entries in the registry
which they did not wish everybody to see. I remarked that
was an extraordinary idea, as the register-book was said by
the Act to be "open to anybody on payment of 1s.," which I
did not object to pay. I therefore said, "Do you refuse to
allow me to make a search ?" His reply was, "Unless you
say what you are going to search for, I do ;" and turned about
and went into his office and shut the door. I then turned to
the clerk and requested to see if the work I had left to be
entered about a week previously, and which he had refused to
let me see entered on the day I left and paid 5s. for it, had—
as he assured me it would be-been entered on that day. He
then handed me the book; seeing the entry with the date
attached to it, I very naturally asked if it was entered on that
date; this he declined to state, for I had gone to the office four
days after it was left, and he admitted it was not then made,
but said it had been made since. This I found to be, by the
registrar's own confession, the usual mode of registration of
copyrights at Stationers' Hall.
Now, Sir, if dates are of any value in a registry, I presume
43
the entry should be made on the day on which it is dated, and
not a week, or it may be a fortnight, afterwards. The excuse
for this was that they had sometimes more entries to make in a
day than one clerk could do. I objected to this, that if one
clerk was not enough he ought to employ two, and if one book
was not sufficient he ought to have two. The fees of the office,
I am told, amount to nearly £1,000 a year, and the work is
done anything but systematically. There is but one book for
the entry of literary and musical works, maps, plans, &c., and
these are jumbled up in such a way that if a Parliamentary
return should be asked for in their separate classes it would be
a work of years to obtain it, and I am told, Sir, that such a
return has never been made or asked for. Where then, Sir, is
the use of the registry of copyrights under such a system?
One object for which this registry was instituted was that any-
body might see, from time to time, what works had been
entered, and when the copyrights expired that those who
desired to do so might legally reprint them. And it is to the
competition in the publication of the works of our best authors
that we are indebted for the spread of knowledge among the
people. If we look, Sir, at the history of Stationers' Hall we
must conclude that Mr. Godson's remark is true, that " they
were the monopolists of books, and the destroyers of literature."
How often have they obtained injunctions against those who
presumed to publish almanacs, until "one obstinate man,"
Carnan, persisted in the printing of them, compelling the Com-
pany to try their common-law right to this monopoly, and beat
them; and this not half a century ago. They then tried to
obtain an Act of Parliament for this monopoly, but failed.
And even now we must not pry too closely into their books!
Your insertion of these facts will oblige
Yours obediently,
CHARLES H. PURDAY.
24, Great Marlborough Street, W., August 9, 1869.
My letter to the Times produced the following, and others, in
the Telegraph:-
44
From the "Daily Telegraph," August 13, 1869.
SIR,—Mr. Purday's letter in the Times of yesterday calls
attention to an institution, the Registry at Stationers' Hall,
which urgently calls for disestablishment.
The object of the 11th section of the Copyright Act (5 and
6 Vic., c. 45) was to provide a cheap and simple mode of
securing and transferring the ownership of literary productions
by an entry in the register kept at Stationers' Hall.
But the 24th section, by making such an entry a condition
precedent to any proceedings for the protection of his pro-
perty, places the owner of a copyright at the mercy of pirates.
The "
entry " must be "an entry pursuant to the Act." It
must contain, according to the 13th section, "the title of the
book, the time of the first publication, the name and place of
abode of the publisher, and the name and place of abode of
the proprietor of the copyright." Any error or omission,
however unimportant, ensures the failure of any proceed-
ings which an author or the owner of copyright may take.
If he files a bill in Chancery and applies for an injunction, or
commences an action and asks a jury for damages, the pirate
has only to call the Judge's attention to the omission of a date
or a Christian name—or to prove a discrepancy between the
fact and the entry-the 23rd instead of the 25th, the business
address instead of the abode of the publisher-and the owner's
bill must be dismissed, or in his action he must be non-suited,
and in either event must pay the pirate's costs.*
That which in the 11th section is intended as a boon, by
being made in the 24th section compulsory becomes a protec-
tion to the wrongdoer, a hindrance and discouragement to the
right owner. The instances I have given are not imaginary.
In "Low v. Routledge" the date of first publication was really
stated to have been the 25th instead of the 23rd of May, and
the plaintiff's bill had to be dismissed with costs, a new entry had
to be made, and a new bill filed, before Messrs. Low could protect
* This is a hard case. It ought to be sufficient that a proprietor of a
copyright show clear proof of his proprietorship, and that no such techni-
cality should defeat his action.
45
the copyright they had purchased; and in "Mathieson v. Harrod,"
in which the month without the day was given, the Court decided
that the day was essential, and dismissed the plaintiff's bill with
costs.
Your obedient servant,
8, Essex Street, Strand, August 12, 1869.
E. BENHAM.
From the "Daily Telegraph," August 17, 1869.
SIR,-Having been the pioneer of the ventilation of the
abuses of the Stationers' Hall Registry, I am glad to observe
that I am not the only person to see the necessity for the dis-
establishment of that institution. In my letter to the Book-
seller of June last, I made some important charges against
the registrar's doings, which were personally reiterated by the
friend who accompanied me when we went to Stationers' Hall
to make an entry on the 22nd ultimo, an account of which is
given in your contemporary of the 11th instant. But, fearing
my communication might be too long, I omitted to state that
the registrar charged upon a Mr. Purday, that the case of
Chappell was untrue, and that the public would know how to
appreciate any other statements made by that person. I im-
mediately turned round to Mr. Greenhill, the registrar, and
said, “I am that Mr. Purday, and I had the statement from
Mr. A. Chappell himself." But I find the error arose from the
tendering the index instead of the book of entry to Mr. Chap-
pell to search. And this is the common trick at Stationers'
Hall, when anybody wants to make a search. They are very
tenacious of your seeing any other portion of their books but
that page on which the entry is made. And, as I have before
stated, the clerk has been known to place a sheet of paper on
the opposite page, in order that you shall not see too much for
your shilling. This case happened to myself some years ago.
Then, Sir, will the registrar deny that it is a frequent occur-
rence with his clerk to suggest that such and such lines of your
memorandum of entry may be struck out as not necessary, and
that he has frequently run his pen through some of those lines
on the very memorandum itself? And will he deny that
46
numberless entries have been made with merely the first line
of the titles—the essential parts, viz., the names of the writer
of the words and the composers of the music, being entirely
left out of the entries of the titles of these works? Well
might Mr. Greenhill say "it was not worth his while to notice
such statements." But it is important to everybody that such
a registry as that at Stationers' Hall should be thoroughly in-
vestigated, as the Act of 5 & 6 Vic., c. 45, has taken away
the penalties of former Acts for misdoings on the part of the
registrar. Your insertion of this will confer an obligation on
all parties concerned in true registries.
I am, yours, &c.,
CHARLES H. PURDAY.
24, Great Marlborough Street, W., August 16, 1869.
From the "Daily Telegraph," August 15, 1869.
SIR,-Allow me to call the attention of your readers to a
few facts relating to the cause "Mathieson v. Harrod,” men-
tioned by your correspondent Mr. Benham. In the Copy-
right Act (5 & 6 Vic., c. 45) the words used are "date of
publication;" but in the prior Copyright Act the words are
"day of publication." The word "date" has usually a different
meaning to the word "day," and at Stationers' Hall the word
"date" was used in its ordinary acceptation as a vague term.
When I went to Stationers' Hall to register my book, which I
told the clerk was for a legal purpose, he then said the month of
publication was quite sufficient date; even afterwards, when I
went to the Hall and produced the opinion of counsel that I might
lose my cause because the day was not registered, the clerks in the
office treated the opinion with contempt, remarking that a large
number of books were registered with only the month and some
with only the year of publication, and that they had always.
registered books in this way, and would continue to do so, or
words to that effect. Hoping for some alteration in the law of
copyright and in the method of registration,
I am, Sir, yours, &c.,
JAMES MATHIESON.
47
This case was an application for an injunction for the piracy
contained in a Brighton Directory, which was defeated by the
pirate on the ground that the entry of the work at Stationers'
Hall was defective, as the day of first publication was not speci-
fied in that entry. The Judge consequently refused to grant
an injunction; and this refusal threw the heavy costs of the de-
fendant, as well as those of his own, on the plaintiff, who had
no remedy against the registrar, although his clerk was the sole
cause of difficulty.*
By these cases will be seen the anomaly of the present
Act, which, while it holds out that an entry is optional, and
that a non-entry does not invalidate a copyright, yet if an
author's work is pirated, he must enter it before he can bring
any action for piracy; and if it should happen to be many
years after the publication of a work before a piracy takes
place, the author or proprietor of his work may be non-suited
if his entry does not state the very day of its publication, or
the exact names of the pirate's firm. He must pay the costs on
both sides before he can renew his action.
Having occasion to search the register-book, at Stationers'
Hall, on going there one morning to see if some entries had
been made, under the Act of 54 Geo. III., c. 156, I was in-
formed by the clerk that Mr. Greenhill, the registrar, was not
there, and would not be until the next day; and he had not
the key of the strong room, where those books were kept; but if
I would make an appointment he would write and inform Mr.
Greenhill. I said it was very inconvenient for me to lose my
time, and the Act had provided for the inspection of the books
from 10 to 4 every day. I saw the registrar the next day, and
complained. Shortly afterwards I was treated a second time.
in the same way. I then wrote to the Master and Wardens,†
when I received the following reply:-
* Mathieson v. Harrod, L. Rep. 7, 272; L. J., 129; ch. 19; L. T.,
N.S., 629.
+ The preamble of 5 & 6 Vic., c. 45, shows that where there is any sub-
sisting right under 54 Geo. III., c. 156, that portion of the Act is not re-
pealed; and the right of searching the books under that Act still exists.
48
Fenchurch Street Buildings,
Sept. 30, 1870.
SIR, I am directed by the Master and Wardens of the Sta-
tioners' Company to acknowledge the receipt of your letter,
dated the 27th inst. They regret that you should have experi-
enced any inconvenience in searching their register of 1826,
but would suggest that your reference to the Copyright Act is
hardly relevant to the subject, as that Act refers only to the
books of registry kept in pursuance of its enactments, and not
to books of earlier date. Every facility will, however, be given
to the public for searching the books belonging to the Company,
I am, &c.,
CHAS. ROBT. RIVINGTON,
Clerk to the Company.
I then wrote to the Board of Trade, on the 3rd of November
following, complaining of the conduct of the registrar, to which
communication I received the following reply :-
Office of Privy Council for Trade,
November 16, 1870.
SIR,—I am directed by the Lords of the Committee of Privy
Council for the Board of Trade to acknowledge the receipt of
your letter of the 3rd inst. complaining that the register of
copyrights at Stationers' Hall has not been open for public
inspection at "all convenient times," as required by sec. 11 of
the Act 5 & 6 Vic., c. 45. In reply, I am to state that my
Lords have placed themselves in communication with the
Stationers' Company upon the subject, and have received the
answer, of which I enclose a copy for your information.
I am, Sir, your obedient servant,
LOUIS MALLET.
The following is a copy of Mr. Rivington's answer to my
complaint to the Privy Council for Trade Secretary :-
SIR,—Your letter of the 9th inst., addressed to the Secre-
tary, Stationers' Hall, has been handed to me; and, in reply, I
beg to inform you that Mr. Purday's statement is not quite
49
correct. The books which Mr. Purday desired to search upon
the occasions referred to in his letter, were not the register
books required to be kept under the Copyright Act of 5 & 6
Vic., c. 45, but earlier books of registry belonging to the Sta-
tioners' Company,* which, in consequence of their literary
value, and for their better security, are kept in the Company's
strong room, though access can always be obtained to them by
the public upon short notice to Mr. Greenhill, the registering
officer, appointed under the Copyright Act, or to myself. I
enclose a copy of my letter to Mr. Purday, informing him of
these facts, and would add that the books of entry required to
be kept by the 11th section of the Copyright Act are always
open to the public for inspection, between the hours of 10 in the
morning and 4 in the afternoon, whether the registering officer
is there or not, upon payment of the fee of 1s.
I am, &c.,
CHAS. ROBT. RIVINGTON,
Clerk to the Company.
In reply to the above, I wrote the following:-
To L. Mallet, Esq., Office of Committee of Privy Council for
Trade.
201, Regent Street, Nov. 18, 1870.
SIR,-I have the honour to acknowledge the receipt of your
favour of the 16th inst., enclosing a letter from Mr. Rivington
dated the 14th inst., and in reply to Mr. Rivington I beg to
say that the books which I desired to search and was not able
to do so, in consequence of Mr. Greenhill's absence from his
office, were those containing the registry of copyrights under
the Act of 54 Geo. III., c. 156, passed in 1814, which, with
that of 41 Geo. III., c. 107, and that of 8 Anne, c. 9, werc
repealed by the Act of 5 & 6 Vic., c. 45-" except so far as the
continuance of either of them may be necessary for the carrying
on or giving effect to any proceedings at law or in equity
* It is a question, I presume, whether the property in these books
belongs to the Stationers' Company or the public, who have paid for the
registry therein.
E
50
pending at the time of passing this Act, or for the enforcing
any cause of action, or suit, or any right of contract subsisting."
Now, Sir, as there are still subsisting rights under the Act 54
Geo. III., c. 156, which make it necessary that the books under
that Act should be open to the public inspection as well as
those under the present Act, I cannot conceive that Mr.
Rivington or Mr. Greenhill can have any authority to demand
a special notice for permission to search these books beyond the
payment of the fee mentioned in sec. 11 of the present Act.
Both Acts clearly show that the books shall be open at all
convenient times for inspection, and Mr. Rivington's letter to
you admits these convenient times to be from 10 to 4 daily.
Now, as it is important that the public should have every
proper access to these books, I cannot help feeling that both
Mr. Rivington and the registrar are exceeding their duty in
withholding the facility for searching them. As to Mr. Riving-
ton's assumption of these books being "the property of the
Stationers' Company," that is a matter for other consideration
than mine; but I humbly hope the Lords of the Privy Council
for Trade will not permit the public to be inconvenienced by
any fancied right that the Stationers' Company may set up in
this matter to abridge the freedom of search, which has always
until now been considered due to those in whose interest I
have taken the liberty to address the Board of Trade on this
subject.
Apologising for the trouble I am giving, I have the honour
Your obedient servant,
to be
C. H. PURDAY.
CHAPTER X.
ON SOME NEEDED ALTERATIONS OF THE ACT.
Not very long ago I took a published song down to the
registry of Stationers' Hall to be entered, and although I
showed the clerk the printed copy he absolutely refused to
enter it, on the ground that the document for entry was dated
51
on the day of the publication of the song, and would give me no
other reason than that it was not their rule to receive a work on
the day of publication, as so stated in the form for entry. I
was therefore compelled to take the same document down again
the next day. Now, there could be no possible excuse for this
refusal to enter on the day of publication but the caprice of the
clerk or the direction not to do so from the registrar. The
law has been over stringently exercised as to the excessivė
nicety in its ruling as it respects mere technical inaccuracies in
the wording of an entry. And it does seem a hard case that
the mere alteration of the day of an entry should give a pirate
the opportunity of inflicting upon the rightful owner of a copy-
right the serious costs of an action upon so trifling a matter,
and thus to compel him to amend his case and renew his action
in order to punish such a shameful dereliction of principle as
that of a piracy. This matter requires to be amended as much
as any other portion of the Act of 5 & 6 Vic., c. 45. The
evident intention of the law is to punish offenders; not to
allow quibbles to defeat its object. If the spirit of a law was
oftener attended to rather than the mere technicalities, there
would be much less occasion for litigation. Well might V.C.
Kindersley say he was
"almost ashamed to descend to these
minute particulars," when it would have been much more
reasonable to have ordered the plaintiffs to amend "these
minute particulars," and to have made the costs costs in the
cause (Low v. Routledge).
The settlement of cases upon mere technicalities appears to
be a favourite system in the present day. The case of
Hutchings and Co. v. Wood and Planché, which was an appli-
cation of the plaintiffs for an injunction against the defendants
for the publication and sale of the words of three songs which
the author, Planché, had allowed the original publishers,
D'Almaine and Co., a licence to publish without receiving any
consideration, and which, on the demise of Mackinlay, the
successor of D'Almaine and Co., the executors of Mackinlay
had sold by auction to the plaintiffs, with the plates to which
they were adapted, the music itself being non-copyright. And
52
as Planché had reserved to himself the right of printing the
words, he conceived, on Mackinlay's demise, that he had only
given him a revocable licence to use them personally. His exe-
cutors had no right to sell them without Planche's consent. He
therefore sold them to Mr. Wood, who published one of them
in a work called the "Gems of Melody ;" and although Mr.
Wood offered to the plaintiffs a consideration rather than
have any squabble with them, they refused, insisting upon
bringing the matter before a court of equity. Consequently,
plaintiffs applied for an injunction, which, on partly hearing,
Sir Chas. Hall intimated that if he gave defendants the benefit
of the technicality he should not allow either party costs; he
therefore advised the parties to settle the matter out of court,
which was done by plaintiffs agreeing to have their bill dis-
missed; and they afterwards bought Mr. Wood's right.
A case is now pending in which Messrs. Routledge and Co.
agreed to publish a book entitled "The Church and Home
Metrical Psalter and Hymnal," edited by Charles H. Purday;
and some two years and a half after its publication these
gentlemen took four-fifths of the contents of Mr. Purday's
book, viz., 80 of the tunes out of 100, and 460 of the psalms
and hymns, as arranged, composed, and adapted by him, with
the identical title, size, and price of his book, and in many
cases used the same stereotype; and, in contravention of their
agreement, published another book, under the editorship of the
Rev. W. Windle, rector of St. Stephen's, Walbrook, who, in
his preface, says, "A few words with regard to the tunes.
For the selection of these, and for the adaptation of the hymns
to them, the editor is mainly responsible, while for the harmony
the able assistance of Mr. Cooper, organist to Her Majesty's
Chapel Royal, has been obtained." And then, after stating
how many persons he was indebted to for permission to use
their compositions, among the rest he untruly mentions C. H.
Purday, from whose work, without any permission, he had ab-
stracted all its value, taking credit for Mr. Purday's labours,
suppressing his name from the title-page, and, "in conclusion,"
Mr. Windle says, "this humble contribution to the service of
53
sacred song—a LABOUR OF LOVE on the part of the editor—is
committed to the press with the earnest prayer that the great
Head of the Church will make it effective in the promotion of
His glory," &c.—Signed, "W. W."; for which "labour of love"
he has been paid £100, and Mr. Cooper £50. Messrs. Rout-
ledge having published four editions, consisting of more than
30,000 copies of the piracies of Purday's book, refuse to fulfil
their own agreement to complete the purchase of the copyright,
nor will they desist from the sale of their pirated copies, unless
compelled to do so by a court of justice.
I may also mention a case where a professor offered for sale
a song, with an agreement that it should be sung by a certain
lady all through a country tour, which was accepted by a
music-seller verbally, intending to pay the terms, seven guineas,
when the lady began to sing it; but as she never did sing it,
although the professor came in a great hurry one morning and
desired it might be published, as she was to sing it on such an
evening at Gravesend; the song was consequently got ready
and sent as requested, but was not sung, and the publisher re-
fused to pay the money, was summoned to a county court for
the amount, but the judge non-suited the professor, on the
ground of there being no written memorandum of the sale.
·0·
CHAPTER XI.
VARIETY OF OPINIONS RESPECTING COPYRIGHT.
From observations made by me in the pursuit of this subject,
it is evident the large publishing houses among the bookselling
trade would care but little about the alteration of the present
law as long as it gives them so lengthened a period of copy-
right in an author's work, and reserves nothing to an author's
family, should they need it. Their great object is that an
international law should be brought about with America. But
it appears there is little or no chance of such a convention
taking place unless English authors and their assigns submit
54
to be controlled by principles which appear to English minds
rather one sided and derogatory, especially when English
authors are the great producers of literary works. It is there-
fore only by concession and arrangement that any settlement
of this matter can be put satisfactorily upon anything like a
fair understanding; so as that the present mode of mutual
reprisal may be abandoned, and the unprincipled abettors be
restrained by Government influence and laws on both sides
of the Atlantic.
It seems extremely difficult, from long habit, to show people
that the publication of a book or a piece of music without the
consent of the author is not as much an uprincipled appropria-
tion of another man's property as the taking from him any
other article belonging to him. It is astonishing to find how
few people really understand what a copyright means. Some
persons, even among publishers themselves, think that if they
purchase a manuscript from an author, and they publish it as it
is, and it is not so successful in its original form as they anti-
cipated, they have a right to take any portion of it, make some
addition to it, or get some other person to do so, and republish
it under the same title, without consulting the author, even to
suppressing his name, and thereby shelving the original work;
that they are perfectly justified in so doing, and defy any com-
plaint that the author may make, insisting on their right to do as
they like with his work. There are other publishers who buy
the plates of musical works at auction sales or otherwise, who
re-publish these works in an altered or mutilated form, changing
the author's name for some other, who never saw the work, or
who perhaps, never existed; yet these unscrupulous publishers
assume they have a right to do such shameful tricks. Other
people think if they suggest a title, and enter it at Stationers'
Hall, they may prevent any other person from using it; but if
they rely on such entry they may find their mistake, as the
registrar has no right to enter any unpublished work. Another
publisher thinks he should be at liberty to publish any man's
work if he only pays him a per-centage on the sale of it. This
is quite an American idea.
55
Although laws have been professedly enacted for the protec-
tion of authors, yet there would be no advantage in writing
books if there were no publishers to produce them. And it is
not often that an author is in such circumstances as to enable
him to publish his own works and to make them known. The
publisher therefore takes care to make such a bargain as shall
give him his remuneration for his outlay and risk; and this is by
no means to be deprecated, provided he gives a fair considera-
tion for the time and labour bestowed on a literary or musical
work of importance. Then, how few are the publishers who, if
they get a prize from an author, and realise a large sum thereby,
ever deign to think of sharing any portion of that prize beyond
the amount paid for the manuscript. It is true that the popu-
larity of one work may lead to the sale of others by the same
author. Authors are not unfrequently what are termed “book-
sellers' hacks,” and are often paid a bare subsistence for their
labours. The bookseller, or musicseller, suggests this, that, and
the other work, which he thinks he can make pay, and the
"hack" carries out the ideas suggested, and produces what is
required. The majority of authors frequently live from hand to
mouth; at least, such has been my experience of more than half
a century among music publishers.
It is only extraordinary that, owing to the loose manner in
which memorandums of copyrights are given and received, a
great deal more litigation is not the consequence. It is true
that among authors there will be unprincipled individuals, who
now and then have been known, not only to sell their works
twice over, but to sell works which have been copied from
other people's. And it is also true that there are unprincipled
publishers who refuse to fulfil their agreements with poor
authors. Other publishers have been known to take a poor
author into their employ, paying him just enough to keep
body and soul together, spin his brains, and take all the pro-
duce to themselves.
How often does it happen that authors and musical com-
posers have died penniless, and left their children to the tender
mercies of the public. Others think that the present term of
56
copyright is too long to be disposed of all at once; but they
know publishers will not purchase half its period, and agree to
allow the other half to return to the author or his descend-
ants. Cases have occurred where authors have made provision
for their children by presenting or securing to them the profits
of certain of their books; but by far the greater number of
authors (and musical composers especially) have died, leaving
their families almost destitute; and the history of musical
composers proves this fact to a demonstration, but it would be
hardly delicate to mention names. This has also been the
case with many public singers, both male and female, whose
necessities have been partially relieved by getting up for them
a concert or a subscription.
"I believe," said Serjeant Talfourd, in his speech on the ex-
tension of the term of copyright, "when the opponents of
literary property speak of glory as the reward of genius, they
make ungenerous use of the very nobleness of its impulses,
and show how little they have profited by its high examples.
When Milton, in poverty and in blindness, fed the flame of his
divine enthusiasm by the assurance of a duration equal with its
language, with Lord Camden I agree that 'No thought crossed
him of the wealth which might be (and has been) amassed by
the sale of his poem.
But surely some shadow would have
been cast upon the "clear dream and solemn vision" of his
future glory had he foreseen that, while booksellers were vying
with each other in the splendour of their editions of his works,
his only surviving descendant-a woman-should be rescued
from abject want only by the charity of Garrick, who, at the
solicitation of Dr. Johnson, gave her a benefit at the theatre
which had appropriated to itself all that could be represented
of "Comus." Then we might cite the petitions* of English
"""
* Mr. Serjeant Talfourd, in order to strengthen his own arguments for
the "amending" of the Copyright Law, and the extension of the term of
copyright to authors, obtained a number of petitions, which were pre-
sented to Parliament; but there was one which he "thought too richly
studded with jests to be presented to the House of Commons; yet its wit
embodies too much wisdom to allow of its exclusion from this place" (viz.,
57
authors given by Talfourd in his "Three Speeches” in Parlia-
ment; and the fact that that portion of his Bill which contem-
plated including a foreigner in the participation of English
rights, of which these were the words in clause 11:-" To
provide that as some doubts have been entertained respecting the
right of foreign authors, whose works have been published in a
foreign country, to enjoy property in the copyright thereof in the
British Dominions, it is proposed to secure to them or their assigns,
such copyright, on registering their works at Stationers' Hall
within one year of the first publication in a foreign country."
This clause was rejected in Committee, and was expunged—a plain
proof that the legislature never intended to give a foreign
author the same rights as a British subject. But this has
his "Three Speeches" on the subject "in the House of Commons ",) and
as it was not presented, I have here given it as a literary curiosity :—
The humble Petition of the Undersigned Thomas Hood
Sheweth-
That your petitioner is proprietor of certain copyrights, which the law
treats as copyhold, but which, in justice and equity, should be freeholds.
He cannot conceive how "Hood's Own," without a change in the title-
deeds as well as the title, can become "Everybody's Own" hereafter.
That your petitioner may burn or publish his manuscripts at his own
option, and enjoys a right in and control over his own productions, which
no press, now or hereafter, can justly press out of him.
That as a landed propietor does not lose his right to his estate in per-
petuity by throwing open his grounds for the convenience or gratification
of the public, neither ought the property of an author in his works to be
taken from him-unless all parks become commons.
That your petitioner, having sundry snug little estates in view, would
not object, after a term, to contribute his private share to a general
scramble, provided the landed and moneyed interests, as well as the literary
interests, were thrown into the heap; but that, in the meantime, the fruits
of his brain ought no more to be cast amongst the public than a Christian
woman's apples or a Jewess's oranges.
That cheap bread is as desirable and necessary as cheap books, but it
hath not yet been thought just or expedient to ordain that after a certain
number of crops, all cornfields shall become public property.
That whereas, in other cases, long possession is held to affirm a right to
property, it is inconsistent and unjust that a mere lapse of twenty-eight, or
any other term of years, should deprive an author at once of principal and
58
been done in contravention of the International Act, which
required that the foreign author should be the subject of a
country which reciprocated such rights to English authors. For
eleven years the question of these foreign rights was banded
about by the Courts; some of the judges decided that the
English asignee (not of the foreign author, but of the author's
foreign publisher) had the same rights as English subjects;
and, consequently, if he entered a work at Stationers' Hall,
and paid a nominal sum to the foreign publisher, he was en-
titled to the same privileges as English authors, and their
assigns. Other judges, however, refused to acknowledge
such assumed rights, and denied them to the litigants. Until
the case of Boosey v. Purday, and eventually Jefferys v.
interest in his own literary fund. To be robbed by Time is a sorry encou-
ragement to write for Futurity!
That a work which endures for many years must be of a sterling
character, and ought to become national property—but at the expense of
the public, or at any expense, save that of the author or his descendants.
It must be an ungrateful generation that in its love of cheap copies can
lose all regard for "the dear originals."
That when your petitioner shall be dead and buried, he might, with as
much propriety and decency, have his body stolen as his literary remains.
That by the present law, the wisest, virtuousest, discreetest, best of authors
is tardily rewarded, precisely as the vicious, seditious, or blasphemous
writer is summarily punished—namely, by the forfeiture of his copyright.
That your petitioner hath two children who look up to him, not only as
the author of the "Comic Annual," but as the author of their being.
That the effect of the law as regards the author, is virtually to disinherit
his next of kin, and cut him off with a book instead of a shilling.
That as a man's hairs belong to his head, so his head should belong to
his heirs—whereas, on the contrary, your petitioner hath ascertained, by
nice calculation, that one of his principal copyrights will expire on the
same day that his own son should come of age. The very law of nature
protests against an unnatural law which compels an author to write for
anybody's posterity except his own.
Finally, whereas, it has been urged, "If an author writes for posterity,
let him look to posterity for his reward,”—your petitioner adopts that
very argument, and, on its principle, prays for the adoption of the Bill
introduced by Mr. Serjeant Talfourd, seeing that by the present arrange-
ment posterity is bound to pay everybody or anybody but the true creditor.
59
Boosey, was carried to the highest tribunal of the land, where
the assumed right of English publishers to an exclusive publi-
cation in the works of foreign composers was completely ex-
ploded, and it was clearly shown that no such rights ever
existed under the English Acts of Parliament, nor was it ever
contemplated by these Acts to include any but British subjects,
as such by birth or residence in the British Dominions.* Thus
was the indomitable persistence of the defendant in Chappell v.
Purday, Cocks v. Purday, and Boosey v. Purday, shown to be
perfectly just, equitable, and right, although the battle was
fought, not only against the idea of publication on the same
day giving copyright both to the foreign and the English
publisher, but against the assumption of such a right. The
contrivances of these publishers never had any authority from
the authors themselves; nor did the foreign authors ever
participate in the trifling sums paid for the exclusive pub-
lication of their works by English publishers until national
conventions gave them such rights.
In the case of Boosey v. Purday, upon which an action was
brought for the selling of foreign copies of the opera "Somnam-
bula," imported by Ewer & Co. from Germany, and sold to the
defendant, who resold them openly, under the belief that no
action could be brought for the sale of foreign copies of a work,
written in a foreign language, composed by a foreign author,
and produced in a foreign country. When this case was
before the court, defendant's counsel wished to have a copy of
the entry at Stationers' Hall of this opera, which, on being ap-
plied for, the registrar said that the ten pieces from the opera
were entered separately, and that he should charge 50s. for
them. I refused to pay this, as they all belonged to the same
work; consequently, the registrar and his book were sub-
pœnaed, and 40s. saved.
In the case of Jefferys v. Boosey, Mr. Jefferys had little or
no trouble in working it out, as I had paved the way by taking
a journey to Milan for the purpose, and bringing back full
evidence of the prior publication there, even to the engraving of
* The American law states residence to be at least twelve months.
60
the ten sets of plates by the Milanese engraver-which plates
were brought to England and sold for a shilling a set to Boosey
-in order to show the payment of a valuable consideration to
found a claim for copyright upon; it being patent to the whole
trade, by the signatures on the copies, that a share, or royalty,
was to be paid to Ricordi, the Milan publisher, for all copies
printed therefrom.
In the case of Chappell v. Purday, although the plaintiff
proved neither legal nor equitable right, yet, on going before
the Vice-Chancellor to take the bill off the file, Shadwell decreed
that both parties should pay their own costs; which, on appeal to
L. C. Cottenham, was reversed, Lord Cottenham stating that the
defendant could not be allowed to be put into a worse condition
than he would have been if no trial had taken place.
With respect to the assumption of copyright by foreign com-
posers in England, both Haydn and Mozart were "domiciled"
in London for some time. Haydn wrote his "Twelve
Symphonies" here for Salamon's concerts, but no copyright
was claimed for them. He also wrote his "Canzonets" to
Mrs. Hunter's poetry; and, although copies were signed, they
were not claimed to be copyright for Haydn, whatever they
might have been for Mrs. Hunter in the words; yet the words
of songs at that period were supposed to be open to anybody.
The only opera of Rossini's for which copyright was assumed
was "The Siege of Corinth," by Isaac Willis, which he simply
imported a copy of, and deposited at the British Museum.
D'Almaine also tried on the "William Tell," after its being
dramatised for the English stage, but without effect, as far as
the music was concerned; and no opera of Auber's except
"Lestocq," "Gustavus," and "Fra Diavolo" was attempted to
be claimed as copyright; it being the overture to "Fra Dia-
volo" which was the subject of dispute in the case of Chappell
v. Purday, and which led to a four years' litigation. In the
case of "Lestocq," D'Almaine v. Boosey (1 Y. and Col., 288),
plaintiff published the airs for the flute; he also assumed copy-
right in "Gustavus," entering a foreign copy; and in "Fra
Diavolo" claimed right by entry, in case he should buy it !
61
CHAPTER XII.
LIBERALITY OF MANAGERS AND PUBLISHERS.
6
Mr. Planché, in his "Recollections" (a most amusing work),
says:
"On the morning after the fiftieth representation of my
drama of Charles the Twelfth,' my wife received a very hand-
some silver tea-service, with a note from Mr. Price, the
manager, begging her acceptance of it, as a small acknow-
ledgment of the great success of my drama.' This drama con-
tained Barnett's popular song, 'Rise, Gentle Moon.' In con-
trast to this I may mention that the late Charles E. Horn sold
to Mr. Isaac Willis his song, Cherry ripe,' for five guineas;
which song was sung by Madame Vestris, and became ex-
tremely popular, and by the sale of which Mr. Willis realised a
little fortune. Meeting Mr. Horn one day in Bond-street, Mr.
Willis said, 'Horn, your song has been very successful, and I
want to make you a present, come and breakfast with me,' on
such a day. Horn mentioned the matter to some of his friends,
who congratulated him; and speculated upon what it should be.
One said, 'A gold watch and chain;' another, 'A silver tea-
service ;' a third, ' A purse of gold,' and so on; all believing it
would be something very handsome; so Horn, when the day
came, had raised his expectations considerably. The breakfast
over, 'Well, Horn,' said Willis, I promised you a present,
and here it is,' unfolding half a dozen silver tea-spoons, with
some full-blown cherries engraved thereon. Poor Horn was
dreadfully chop-fallen, and as he said, 'I slunk out of the house
without even saying Thank ye.”—(Edit.)
With respect to the drama of "Charles the Twelfth,” Mr.
Planché tells us, "A far greater benefit, not to me alone, but
to English dramatic authors in general, resulted ultimately from
its great success.' The piece not being printed and pub-
lished, which, if it had been, would have entitled any manager
62
to perform it without the author's consent-Mr. Murray, of the
Theatre Royal, Edinburgh, wrote to inquire upon what terms I
would allow him to produce it. I named the very moderate
sum of £10, which he declined paying, on the plea that since
the introduction of half price in the provinces it would barely
cover the expenses of producing after-pieces. This was all
very well; but Mr. Murray obtained a surreptitious MS. copy
in the face of his excuse, and produced the pieces, without per-
mission, at whole price, leaving me to my remedy. I did not
bring any action against him; but I asked Poole, Kenney, Lunn,
Peake, and some other working dramatists to dine with me
and talk the matter over; when it was agreed to take imme-
diate steps to obtain the protection of an Act of Parliament,
which was eventually carried through both Houses by the in-
fluence of the Hon. Geo. Lamb and Lytton Bulwer, and the
result was the Act of 3 Wm. IV., which received the royal
assent, June 10, 1833." Mr. Planché also states that on the
production of his drama, "The Brigand," he had written the
melody and words of the song, which was published by Latour,
entitled “Love's Ritornella, or as he calls it, "Gentle
Zitella,” which Mr. T. Cooke had been paid £25 for arranging.
It became immensely popular; and brought Mr. Latour a
profit of £1,000, while he (Mr. Planché) never got a sixpence
for it, Mr. Latour's excuse being that he had sold his business
to Mr. Chappell, and that Mr. Planché must apply to Mr.
Chappell for his remuneration; and when Mr. Planché went
to Mr. Chappell, he was told that Mr. Chappell had paid so
large a price to Mr. Latour, that Mr. Planché must look to Mr.
Latour for his remuneration, as Mr. Chappell had agreed to
give Mr. Latour £500 more for his business, in consequence of
the popularity of "Love's Ritornella." Thus Mr. Planché
got the oyster-shells, and the publishers the oyster. It is
true that Mr. Planché has been paid a small sum lately for
the reversion of this song by the present publisher.
29
It had been long the custom, says Mr. Planché, for an author
to allow the composer of his opera to publish the words with
the music (or rather he might have said "for musicsellers to
63
take the liberty to publish the words with the music without
the consent of the authors.") Words were not considered of
any value, and in a literary point of view there might in too
many instances have been some truth in the assertion. Still
without the words, poor as they might be, the music of an opera
would be comparatively of no value, and could not have been
published. That fact never appeared to have occurred to any
one, or, if it had, no author had thought it worth while to moot
the question. In those days successful dramas had a certain
sale; and there were booksellers who would give a very fair
price for a new play, and a much larger one for an opera, as the
sale of the book of the songs in the house would alone net a
sufficient sum to pay the author, and the expenses of printing
at least, without reckoning the money taken over the counter
for copies of the complete libretto.
But booksellers were becoming chary of purchasing copyrights
of dramas, unless at such low prices as to enable them to vend
them in a small size at 6d. or a ls., instead of, as formerly, in
8vo at 3s. or 5s. The lyric drama also, assuming gradually a
more strictly operatic form, as the works of Bishop, Rodwell,
T. Cooke, and the English adaptations of foreign composers
superseded those of Shield, Arnold, Mazzinghi, Reeves, Dibdin,
and others of the earlier musical composers, which consisted of
little else than songs, duets, a glee or two, and two or three
short choruses. While the larger works of the more modern
school necessitated a larger book, which contained all the
libretto, every word of which was printed by the musicsellers
and published with the music, without the least compensation
to the bookseller who had purchased the libretto of the author.
Mr. Miller, Mr. Dolby, and other theatrical booksellers, who
had been accustomed to pay the dramatists £50, £60, and £100
for these copyrights, no longer offered such sums, which by
degrees were getting few, and beautifully less, while the
musicsellers were making large fortunes by the sale of the
songs, for the words of which they had not paid a single
sixpence. The case of "Gentle Zitella," though the most
flagrant, says Mr. Planché, was by no means the first. The
64
ballad of "Rise, Gentle Moon," which was published by the
composer, commanded a large sale without my receiving the
slightest consideration for it. I determined therefore to be the
victim of tyrant custom no longer; and I told George Rodwell,
who was just about to publish the vocal pieces of my operetta,
"The Mason of Buda," that I should expect some payment;
I cared not about the amount, provided it was a sufficient
recognition of my right as author of the libretto.
My protest was contemptuously disregarded, and the music
with my words was published in defiance of it by D'Almaine.
I walked into the city, not to my lawyer, but to Mr. Cumberland,
who was then publishing his series of plays, called "The
Theatre," explained the case to him, and sold and assigned in
due form, all my rights and interests, vested and contingent, in
the libretto of the operetta of "The Mason of Buda." On my
return home I informed D'Almaine and Co., of the step I had
taken, and that as they had declined to deal with me, they
would now have to deal with Mr. Cumberland. My letter was
speedily followed by one from Cumberland's solicitor, who pro-
hibited the further sale of the music, and demanded an account.
How the matter was settled between D'Almaine and Cumber-
land, I never heard; but I was warmly thanked by Fitzball, to
whom D'Almaine sent in a great pucker and paid him for a
host of things which he would never have been paid for, but
for this movement. "I had the gratification also of feeling
in this case, as well as in that of the Dramatic Authors Act, that
I was not simply struggling for my own benefit, but for that of
all my extremely ill-treated brethren, whose claims were invari-
ably the last considered by managers or publishers."
As an evidence of the value of the words of popular songs, I
may show that they have not only been accessory to the popu-
larity of the music to which they have been attached, but they
have saved the copyright of the music itself. It is well known
that Barry Cornwall (Mr. Proctor) wrote the words of above
forty of the Chevalier Neükomm's songs; and that he never
had one penny for them until shortly before the sale of Cramer
& Co.'s catalogue. The music of these songs had been long out
65
of copyright, until I one day suggested to Mr. Wood the pro-
priety of obtaining the copyright of the words, which would
secure both. To this he agreed, and I obtained an assignment
from Mr. Proctor, who was then in his eighty-second year, and
at the sale, by Puttick & Simpson, some of these songs, in-
cluding "The Sea," fetched about £200. It was a similar
case with "The Brave Old Oak," and "Good-bye, Sweetheart,"
the one realising £480, the other £400; "Only to Love,"
by Santley, fetched £264.
To show the value of musical copyright, many other works.
realised large prices after they had been published some years;
for instance-Arditi's "Il Bacio," £728; Macfarren's "Beat-
ing of my own Heart," £375; Wallace's "Fireside Song,"
£172; "Sleeping I dreamed," £137; the opera of “Lurline,”
£2,400; the opera of "Maritana," £2,250; Balfe's duet
"The Sailor sighs," £324; Linley's "Little Nell," £187;
Smart's "The Birds are telling," £300; "She wore a Wreath
of Roses," Knight, £500. John Thomas's and Oliphant's
Welsh Melodies, with Welsh and English words, 3 vols.,
realised the large sum of £1,500. Costa's oratorio "Eli”
sold for £1,500; Sterndale Bennett's "Woman of Samaria,"
£590; Balfe's opera "Rose of Castile," £1,250; Annie's
Tryste," Aytoun, £94; "Norah Darling," Balfe, £125; Bar-
nett's "Sea Flowers," trio, and song "When first I met Thee,"
£114; Blumenthal, "A Day-dream," £135; "The Requital,"
£310; Bordese, " David Singing before Saul," £82 10s.; Cos-
ta's oratorio "Naaman," £725; "Through the Wood," &c.,
Horn, £120; Benedict's opera "The Brides of Venice," £135;
Weber's opera "Oberon," words only, copyright, £333; "Why
do I weep for Thee?" Wallace, £152 10s., and "Sweet and
Low," £254. "The May Queen" was sold after four years
at £1,865. These are only a few of the cases where large sums
have been realised by the sale by auction of musical works.
Contrasted with these, we may mention the sums paid to
Handel for his operas and oratorios, by Walsh; viz., 20 guineas
each. Walsh is among the number of those illiberal publishers
who seemed to take every mean advantage of authors and com-
F
66
J
ous.
posers in their power; the consequence was that Handel was
compelled to obtain a royal licence to secure himself, if possible,
from the piratical publication of many of his works, even against
Walsh, his own publisher. Handel therefore employed another
engraver, which Walsh not liking, he actually re-engraved the
same works in opposition, without payment to Handel. Walsh,
it appears, although extremely rich, was mean and parsimoni-
In the article in the biography of musicians, it is said
that Walsh obtained Geminiani's MS. of his Op. 2 surrepti-
tiously, engraved it, and was about to print it; but thinking
it would be better to have the author's corrections, he gave him
the alternative to correct it or have it printed without. This
Geminiani treated as an insult, and threatened Walsh with an
injunction; which Walsh compromised, and produced the work
with the corrections and sanction of the author. Thus it would
appear, notwithstanding royal licenses and Acts of Parliament,
there were pirates in those days as well as at present; but they
were not quite so numerous, if as unscrupulous.
CHAPTER XIII.
INTERNATIONAL COPYRIGHT,
Letter from Mr. Purday to Mr. Macfie in 1869.
The Act of 1 & 2 Vic., c. 69,* was passed into a law under
the title of "An Act for securing to Authors in certain cases
the benefit of International Copyright," the date of which was
July 31, 1838. The 14th section is in these words: "And be
it enacted, that the author of any book to be, after the passing
of this Act, first published out of Her Majesty's dominions, or
his assigns, shall have no copyright therein within Her Majesty's
dominions, otherwise than such (if any) as he may become
entitled to under this Act." Section 9 says that no protection
of copyright shall be given to a foreign author, unless such pro-
* This Act was amended by 7 Vic., c. 12, which, although it was
extended to other works besides books, still made reciprocity necessary to
acquire copyright.
67
tection shall be reciprocated to an English author by the country
to which the foreign author belongs. Now, nothing can be
clearer than that the Act of 5 & 6 Vict., c. 45, never contem-
plated giving protection to a foreign author; but, on the con-
trary, that it was passed solely for the benefit of English
authors. At last the whole matter was brought before the
House of Lords, in the case of Jefferys v. Boosey, where it
was decreed that a foreign author was not an author within the
meaning of the Acts of Parliament, and could neither claim any
copyright himself nor assign any to an English subject, unless
he was resident in the British dominions at the time he sold his
work, and published it there before there was any publication.
abroad. This decision, after eleven years' litigation by various
parties,* my brother, being defendant, was perfectly convincing
that, if the subject came to be thoroughly investigated, no such
claims as were set up by the monopolists could be maintained
either at common law or in equity. The House of Lords, however,
were not called upon to decide what was meant by the term resi-
dence. This decision gave rise to an attempt to obtain an Eng-
lish copyright in an American author's book, which succeeded.
The scheme was this: An American authoress of little repute
wrote a novel, one copy of the manuscript of which, it is said,
was handed over, for a consideration, to an English bookseller,
to publish in England; the work was got ready on this side of
the Atlantic as well as on the other side, and, after agreeing
as to the date of entry at Stationers' Hall, and the publication
of the same in London, the lady was desired to go over the
Victoria Bridge into Canada, one of the British dominions, and
remain there a few hours or days, while the publication took
place in London; then she was to go back again for the pro-
tection of the same work, as a copyright, in her own country.
Meanwhile, an English publisher, hearing that such an arti-
fice was about to be attempted, procured an American copy
of the said work, and republished it in a cheap form. The con-
sequence was that an application for an injunction was applied
for by the first party, which was granted, and appealed against
* Chappell v. Purday, Cocks v. Purday, Boosey v. Purday.
68
to the Lords Justices, who gave it as their opinion that the
word "author" in the Act of Parliament was to be interpreted
in its widest sense, and that there was no limitation to that
word in the Act of Parliament; therefore, it was maintained
that any author could have a copyright in England who com-
plied with the requisitions of the Act; and this scheme was con-
firmed by Lord Chancellor Cairns, who remarked that none of
the former decisions had stated that it was other than necessary
to be in the British dominions during the time of the publica-
tion of the work. This device may have facilitated the desire
for an international law upon a righteous foundation, then
loudly advocated in America, but now repudiated.
In the judgment given in the House of Lords, in the case of
Boosey's assumption to the exclusive right of printing the opera
of Bellini, the subject of residence in England was debated, and
Lord St. Leonards used these remarkable words: "Now the
American Legislature have no such difficulty. They have
expressly enacted that copyright there shall be confined to
natives or persons resident within the United States. Those
are the express words of their statute." And we may remark,
farther, that unless an alien author has resided at least twelve
months in America, and has made a declaration in these words,
"I do declare on oath that it is bona fide my intention to become
a citizen of the United States," &c., he cannot obtain the privi-
lege of copyright in anything he may publish there. This con-
flict of opinion must necessarily end, therefore, in a new Act
of Parliament, which has been long needed to settle this and
other much-vexed questions of copyright.
Letter to Mr. Macfie on Convention with America.
24, Great Marlborough Street, June 15, 1869.
Dear Sir,-I think your suggestion of the payment of a
royalty upon the publication of an author's work, if made mu-
tual in both America and Great Britain, would go far to recon-
cile the two nations to abandon the present unfair reprisals;
more especially if it were left to the option of any publisher to
reproduce such works in the form most suited to his particular
69
trade. Some publishers choose to publish in one form, and
some in another, more or less expensive, according to the taste
or wants of their customers. It is true, there might be some
difficulty in arranging the per-centage per copy upon such a
scheme; but that might be regulated according to the price and
style of getting up of the work, which should always be deter-
mined upon before the work is issued.*
The question of copyright in music is one which presents.
features appertaining to itself exclusively. One feature which
it shares along with the other fine arts is this great fact: that
music is a universal language, and addresses itself equally to all
nations. Its range, therefore, is far wider than literature. It
needs no translation.
The taste for music is more widely diffused than that for
painting and sculpture, from which it differs in a way that
causes very considerable embarrassment when the question of
copyright comes to be particularly dealt with. Like paintings
and statues, music may be reproduced in a permanent form; but,
unlike them, the chief value of its copyright privilege is repro-
duction in sounds, and, therefore, in a form unsubstantial and
transient. He, therefore, who would deal satisfactorily with
this branch of the wide question of copyright has to provide
for a demand, and overcome difficulties, such as do not belong to
literary and artistic copyright. But, still further, music—say
that of an opera-may be separated into parts without serious
diminution of its revenue-bearing value. Once more, there is the
libretto; it belongs to the range of literature. Questions, there-
fore, arise, and must be provided for, with respect to the af
finity of that part with the music, its reproduction in the form
of translation, and its being, as it frequently is, the work
* A fact transpired only a few days since of an order being sent from
one of our Colonial towns for some of the musical works published in
Bond-street, on which it was stated that they must be "American printed
copies." It is said that the Americans have the means of disposing of
30,000 or 40,000 copies of any popular book or song they choose to repro-
duce. This, of course, is a fine premium for supplanting the English
publisher in the sale of his own copyright works in his own colonies.
70
and property of an author other than the composer of the
music.
There is still so much uncertainty, approaching to confusion,
as to what really is the law, especially with regard to inter-
national copyright, in this branch, that thorough revision and
immediate international negotiations are absolutely necessary.
The laws of copyright should be divested of all ambiguity and
superfluous legal verbiage. In fact, they should be made so
plain that “he that runs may read," and understand them.
The payment of a royalty on foreign works is not a new thing
here. Chappell pays 1s. a copy, besides a considerable sum for
the copyright, of the last work of Rossini-viz., the "Messe
Solennelle," for the exclusive selling of the work, and for the
right of performing it here. Any other information I can give
you I shall be happy to afford.
I am, dear Sir, yours obediently,
To R. A. Macfie, Esq., M.P.
C. H. PURDAY.
To show how little the knowledge of and interest in the law
of copyright has been understood by the legislature for the pro-
tection of authors, an Act was passed 22nd July, 1847 (10 & 11
Vic., c. 95), by which our colonies might import and sell copy-
right works reprinted abroad to the manifest disadvantage of
the authors and their assigns, by simply paying an ad valorem
duty of 20 per cent. on their importation into the colonies,
which duty was to be collected by the Custom-house authorities,
and transmitted to the authors of these books. But to enable
the Custom-house authorities to ascertain what works were
copyright or what were not, a table of prohibitions is given in
the 8 & 9 Vic., c. 86, which says :
"Books wherein the copy-
right shall be subsisting, 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 that such copyright subsists, such notice also
stating when such copyright shall expire." Quite ridiculous.
Then again the Alien Law (7 & 8 Vic., c. 66) was brought
71
forward-in Low v. Routledge-to assume that as the Act of
5 & 6 Vic., c. 45, had interpreted a copyright as personal pro-
perty, any alien was entitled to copyright as well as a British
subject, by publishing in England, although the 1 & 2 Vic., c. 89,
and 7 Vic., c. 12, declare that a foreign author has no claim to
copyright in England unless he belongs to a country that
reciprocates such rights. How are these contradictions to be
reconciled?
By a return made to the Board of Trade some few years ago
of the amount of the ad valorem duty on English copyright
works reprinted in America or other foreign countries, and im-
ported into and sold in Canada and other British colonies, in
accordance with the Act of 10 & 11 Vic., c. 95, it appears that
payments were made to the following authors, viz. :-Three-
pence to Wm. Howitt, fourpence to Robert Chambers, and
several other literary celebrities in the same proportion,
amounting altogether to 20s. for as many years. How far the
Custom-house authorities were accountable for this ridiculous
sum it is not difficult to divine, as they must either have been
utterly ignorant or entirely neglectful of their duty in per-
mitting these pirated books to be imported without collecting
the amount of duty thereon.
As to music, there is not the least mention of any having
passed the Customs, although the following colonies were ad-
mitted to the like privilege with Canada, viz. :- Antigua,
Bahamas, Barbadoes, Bermuda, British Guiana, Cape of Good
Hope, St. Christopher, Grenada, Jamaica, St. Lucia, Mauri-
tius, Natal, Nevis, New Brunswick, Newfoundland, Nova
Scotia, Prince Edward's Island, and St. Vincent's. Thus all
the important colonies, excepting those of Australia, had these
privileges.
Consequently the measures taken to collect the duty are
completely inoperative; and Mr. Lovell (a Montreal pub-
lisher), in a letter to Mr. Rose, says, "At present only a few
hundred copies of pirated works pay duties, and many thou-
sands pass into the country without paying a single fraction,
thus having the effect of seriously injuring the publishing
F
72
trade of Great Britain, to the consequent advantage of the
United States." On looking over the entries of the Custom-
house, he says that "1,000 copies of a popular reprint of a
copyright English work were passed and absolutely sold within
a few days by one bookseller alone, in the month of April,
1868, and for three months from that period only a few copies
of some periodical works were entered." What has been done
since we are not informed.
By the 28 & 29 Vic., c. 2 (passed in 1865), it is enacted that
any colonial law which is or shall be in any respect repugnant
to the provisions of any Act of Parliament extending to the
colony to which such law may relate, shall be read subject to
such Act, and shall to the extent of such repugnancy, but not
otherwise, be and remain absolutely void and inoperative.
Under such circumstances as the above, what can be done to
remedy such a state of things except a convention?
CHAPTER XIV.'
TERM OF COPYRIGHT IN THE UNITED STATES OF
AMERICA AND OTHER COUNTRIES.
AMERICA.
It would seem that after the struggle in America for inde-
pendence had been successfully waged and settled, different
laws for the security of literary property were instituted in
different States; consequently, what was copyright in one State
was not respected in another. Congress, therefore, in the
second session, 1790, passed an Act on the model of that of
8 Anne, c. 19, which was amended in 1802; but both were re-
pealed by an Act passed Feb. 3, 1831, by which copyright was
secured to an author, being a citizen of the United States (or
resident therein), for the term of twenty-eight years; and if
either he or she, his wife, or children, survived that period, then
for a further term of fourteen years.
On February, 16th, 1837, a report was made, and a Bill was
subsequently brought in to extend to authors of Great Britain
73
the same privileges as American authors enjoyed, but nothing
appears to have been done to follow up the matter.
Several efforts have been made since to bring the Americans
to some tangible understanding on the subject of international
copyright, without success. They will deal only with authors,
and insist upon printing and publishing their works in America.
The above Act in 1831 was amended and enlarged by sub-
sequent Acts (passed in 1834, 1846, 1856, 1859, 1861, 1866,
and 1867), which continued in force down to July, 1870, when
an Act was passed to revise, consolidate, and amend the statutes
relating to copyrights and patents, repealing the previous
enactments on the subject.
The present Act confers copyright only on those who are
citizens of the United States, or resident therein. The word
"resident" is interpreted to mean permanently resident; so that
a person temporarily residing in America, even though he has
declared his intention of becoming a citizen, cannot take or
hold a copyright,* nor can the assignee of a work composed by
a non-resident alien have a copyright in it,† in the United
States. Piracy is punished by penalties, as in other countries.
FRANCE.
In France, as in England, the first protection that literary
property received was by means of privileges; but with this
difference, that the infringement of those privileges in the
former country was visited with much heavier penalties than
in the latter for the printing a work, the sole right to
which belonged to another, was looked upon as little better than
a theft, and punished accordingly.
:
Several laws were promulgated from that of Louis XIV. to
that of the Code Napoléon in 1810—the one which is still in
operation-by which the property in a work was secured to an
author "for his life," to his widow "for her life," and, after their
decease, to their children "for twenty years." If there are no
children, then the other heirs or assignees shall only enjoy the
* Carry v. Collier (56 Nile's Reg., 262.)
† Keene v. Wheatley (9 Amer. Law Reg., 45.)
74
exclusive privilege for ten years from the death of the author.
Besides an action for damages for piracy, all copies shall be
confiscated for the author's profit, and a penalty imposed of not
more than 2,000 francs, or less than 100, against the offending
party.*
RUSSIA.
In Russia we shall find what no other code contains, viz., an
enactment conferring on authors certain degrees for literary
success, titles of rank and honour; and the author or trans-
lator of a literary work shall have the sole right of printing and
disposing of it during his lifetime; and his heirs shall enjoy
the same for the term of twenty-five years after his demise,
and for a further term of ten years, if they shall have published
an edition within five years before the expiration of the first
term. In every case a party guilty of piracy shall pay the pro-
prietor of the work the difference between the actual cost of the
pirated edition, and the selling price of the original; and shall
forfeit to the use of the proprietor all the copies of such unlaw-
ful reprint, and, until definitive judgment shall be pronounced,
the edition accused of being pirated shall be restrained from
being sold. The judgment shall determine the amount of
damages resulting from the offence.
The copyright of a work which the author has not parted
with cannot be taken in execution by his creditors, whether it
has been published or not, nor can the creditors avail them-
selves of the benefit of it in case of the bankruptcy of the book-
seller who shall have published it for the author. This law of
Russia may challenge comparison with any legislative enact-
ments made by most European Governments.
PRUSSIA.
By the law of Prussia of the date of July 11th, 1837, the
copyright was put upon a more favourable and juster basis than
previously. Section 5 declares that an author shall enjoy the
sole right of printing his work "for his life."
* No foreign author's work is allowed to be published in France without
the consent of the author, no matter how long such work may have been
printed in his own country.
75
Section 6 confers on the heirs of an author the same right
"for a period of thirty years," to be reckoned " from his death."
The same rights are given for a posthumous work; and after
that period every work shall be common to anybody to print.
Section 38 makes provision for a reciprocity of rights in
foreign states, and in Germany; but prevents the importation
of piratical works of German copyrights printed abroad, in
France, Belgium, and Switzerland.
GERMANY.
A convention was made between Prussia and England in
1846 for reciprocal rights, and with France and other Con-
tinental States since. Anybody may make arrangements from
the "melodies" of a German composer's work, if they are bonâ
fide distinct compositions for piano, violin, flute, or any other
instrument ;* but must not reprint a song or other vocal com-
position as originally composed, with the words.
HOLLAND AND BELGIUM.
Before the French Revolution an author's copyright was per-
petual, and might be transmitted to his heirs or assigns for
ever. By the law of January 25th, 1817, copyright was
limited to the author's life, and to his heirs or representatives
for twenty years after his death. The penalty for piracy was
confiscation of all copies and a fine of 1,000 florins, or not
less than 100, which was to be given to the poor of the district
where the offender resided; and, in case of a second offence, he
was disabled from carrying on the trade of printer or book-
seller, notwithstanding the imposition of the penalties.
AUSTRIA.
An Imperial ordinance in 1835 declared copyright to be on
the same footing as the Germanic Diet, with the same penal-
ties for piracy. But Austria has never come into an interna-
tional copyright convention with England, nor has Russia,
Norway, or Sweden. Conventions are now in operation with
Prussia, France, Belgium, Italy, Spain, Hesse-Darmstadt, An-
halt, and Hamburg.
* An effort is now making to repeal this enactment, and require consent.
76
GREECE.
In Greece, under the present régime, the term of copyright
is fifteen years.
SPAIN.
In Spain the law of copyright was perpetual; it is now limited
to the author's life, and fifty years after his death to his heirs.
The penalties for piracy, with summary mode of punishing
it, are much less expensive, and more effectually carried out,
in all other countries than in England, and its venality is
treated with more contumely and disgrace to the perpetrator.
·0·
CHAPTER XV.
ON THE QUESTION OF FOREIGN COPYRIGHT.
Referring once more to the assumption by the principal
musicsellers of former days, in the exclusive publication of the
works of foreign composers, Mr. Lonsdale, of Bond Street (who
was the victim of a prosecution for the publication of a piece of
dance-music some thirty years ago), had the curiosity after-
wards to extract from the Stationers' Hall Registry upwards of
100 works of foreign composers, entered there under the impres-
sion that such entry gave prima facie copyright thereby,-as
Mr. D'Almaine said (at the trial of Chappell v. Purday), when
asked why he entered the opera of "Fra Diavolo" as his pro-
perty, "In case I should purchase it." Among these entries were
about eighty operas written by foreign composers, and produced
in foreign countries, in a foreign language, by Adam, Auber,
Bellini, Bertin, Boieldieu, Carafa, Donizetti, Gabussi, Gomis,
Halevy, Herold, Kreutzer, Mabellini, Marschner, Mercadante,
Meyerbeer, Mozart, Nicolai, Niedermeyer, Pacini, Paer, Per-
siani, Ricci, Rossi, Rossini, Spohr, Thomas, Vaccaj, Weber,
Winter, and others, not a fourth part of which were published
in England, or ever intended to be so by those who entered
them. These entries were made between 1825 and 1841.
There being at that period no convention with foreign coun-
77
tries, or any other registry but that used for the entry of Eng-
lish copyrights; consequently they were all wrong entries!
Wrong entries are constantly being made the cause of litiga-
tion; but, whether from ignorance or neglect at Stationers'
Hall, the result is fatal to litigants.
The first attempt to assume a copyright in the works of
foreign composers of music appears to have been the case
already given, of Birchall v. Longman and Heron.* Then
came that of Clementi v. Walker (2 Barn. and Cres., 861), on
a composition of Kalkbrenner, proved to be first published in
Paris. Then the case of D'Almaine v. Boosey (1 Y. and C.,
288), respecting an opera by Auber, "Lestocq."
Mr. Murray encouraged the American author Washington
Irving by paying him large sums of money for the exclusive
publication of his works, which he afterwards found he could
not maintain any copyright of in England. Colburn and others
followed, with the like result; but for a time no one chose
to dispute the matter by any litigation, on account of the cost.
At last, however, these assumptions became so common that
for several years the mere putting on the works of foreign
composers "This work is copyright" deterred many of the
music trade from reprinting them, until the contrary decisions
of the courts made it necessary that some proper understand-
ing should be arrived at. This brought about a determination
to have the matter settled by the highest tribunal of the land,
viz., the House of Lords. And the judgment in Boosey v.
Jefferys being diametrically opposite to that of Boosey v. Pur-
day alarmed all the publishers. A public meeting was called
at the Hanover Square Rooms, presided over by Sir E. Bul-
wer Lytton, on July 1, 1851 (about which time the subject of
international copyright was taken up by the leading journals
of the day), at which meeting resolutions were taken, and
speeches made, deprecating the conflicting decisions; and a de-
termination was come to to apply to Parliament for an altera-
tion of the law. But in the interim it was resolved that the
case of Boosey v. Jefferys should be taken up to the House of
* See ante, p. 33.
78
Lords, which tribunal settled the much-vexed question by de-
claring that, as English laws were made for English subjects,
a foreign author was not an author within the protection of
English laws, and could neither hold nor dispose of a copyright
in England, unless he became a resident in the British Do-
minions. But the term of residence was not given.
The following is from a leading article in the Times of
Nov. 26, 1851, on the convention with France:-
"The most hopeless subject of negotiation with the Govern-
ments of other countries has long appeared to be an inter-
national copyright law. Intellectual produce' has been the
only description of goods excluded from equitable conditions of
exchange. With regard to hogsheads of sugar, bags of coffee,
and bales of cotton, there could exist no rational doubt that,
sooner or later, the commercial transactions of the world would
be placed upon a rational footing. The advocates of exclusion
and monopoly invariably fabricated an economic system in
accordance with their own views, and endeavoured to invest it
with the most fascinating attributes of philosophy and justice.
There was error in their calculations, but it was error under
the colour of reason, and wrong with the semblance of right.
The property in literary works has been regarded from a
different point of view. The various Governments of Europe.
and the United States of America have, from time immemorial,
virtually declared that a work of literature or art, the property
of a single individual in a single nation, was a fair mark for
piracy and theft. Genius has been outlawed. The property it
should have owned, whether in its most splendid or most trivial
productions, has, by the comity of nations, been treated in the
same way as the goods of a convicted felon. All this has been
done in the broad light of day, under the sanction of the most
distinguished statesmen of the most civilised nations of the
world. Ignorance must not be pleaded in bar of the indignation
which such a policy is calculated to inspire in any mind not
destitute of the first impressions of right and justice.
"The time has long since passed away when it was considered
fair to rise in public and maintain that a sufficient copyright
79
<
law should not form part of the municipal institutions of each
particular country. The United States would protect the
property of Mr. Prescott in his History of Peru;' France that
of M. Thierry in his Chronicles of the Merovingian Kings;'
England that of Mr. Macaulay in his History of the Times of
James II. and his Successors.' Each Government acted
respectively against the piratical attacks upon the property of
its own subjects by its own subjects. But here the defence
stopped. Mr. Macaulay's history would be reprinted in a
cheaper form in the United States; that of Mr. Prescott-
with certain possibilities in his favour-in England; and the
chronicles of M. Thierry might be re-issued at the pleasure of
the booksellers in either country. Still worse, copies might be,
and actually were, multiplied at a cheap rate in Brussels by
compositors versed in the French language, and then dissemi-
nated over the Continent, to the prejudice of the author's legiti-
mate rights. In each State the obligation of the Government
to maintain the rights of its own subjects against its own sub-
jects was fully recognised; but at this point all stopped short.
Nor, in fairness, can the reprehension be confined to the lead-
ing statesmen of the time, no matter what their country, or
what their political connections. The real blame lay with the
great bulk of the population, whether in Europe or in America.
There has too long existed a profound immorality of thought
with regard to the productions of literary genius. Men have
said, 'It is for our interest to have the readiest means of access
to the works of literary men. Their labours cannot be the sub-
ject of property any more than the wild fowls of the air. They
are feræ naturæ, irreclaimable, and therefore the subjects of
dominion to the first person who can reduce them into posses-
sion.' Such has been the spirit in which the various nations
of the world have acted time out of mind with regard to literary
property. How shortsighted the policy has been the example
of Belgium will best evince. The effect of the habitual piracy
practised by the Brussels publishers on the works of French
authors has simply been the extinction of original literary
genius throughout Belgium."
80
In a work called the "History of Ancient America," which
fell into my hands some years ago, written by George Jones,
M.R.S.I., F.S.V., published in 1843 by Longman & Co.,
London; Harper & Co., New York; Dunker, Berlin, and
Klinsieck, Paris, the following "Notice to booksellers, pro-
prietors of circulating libraries, and the public," is attached.
6
"This is to give notice that the Original History of Ancient
America' (of which this is the first volume) is copyright and
legally secured to the proprietor, both in England and America.
The penalties, therefore, for any infringement will be en-
forced by the publishers, according to the new Act of Parlia-
ment and the Acts of the Congress of the United States. By
the former, especially as applied to England and her colonies,
any person having in his possession, for sale or hire, any
foreign edition of this English copyright is liable to a heavy
penalty; and any copy found in the possession of a traveller
from abroad will be forfeited. London, June, 1843." This
notice is supposed to have been a dodge of Brother Jonathan ;
as we do not believe Messrs. Longman & Co. would have lent
themselves to so ridiculous a humbug.
Some forty years ago, Mr. Gardiner, of Leicester, brought
out a book at his own expense, entitled "The Music of
Nature," a thick 8vo, in which he attempted to prove that
"what is passionate and pleasing in the art of singing, speaking,
and performing on musical instruments is derived from the
sounds of the animated world." Of this work, containing some-
what of the marvellous, he printed an edition of 500 copies;
but having, contrary to his expectation, disposed of all the
copies, and finding there was still a demand for more, learning
that it had been published in America, he sent over for copies,
paying 6s. a copy in sheets, binding them up in accordance
with that published by himself, cancelling the American title,
and adding that published for him by Longman & Co., and
sold the work as the original edition.
When I was in business in Great Marlborough Street, a
person came into my shop one day for a song, which I handed
to him, and, on asking the price, he remarked, "We get these
81
things much cheaper in our country;" to which I replied (from
his manner of speech), "America, I suppose?" "Yes." 1
then said, "Well you may; for you pay nothing for the copy-
right. You take our works and publish them whether we like
it or not." 66
Well," said he, "and you take ours." "Oh !" I
said, "but you have nothing to take." Not liking this reply, he
put down the song and walked out, looking as red as a turkey-
cock. Few Americans like to be told the truth in this matter.
Some years ago Captain Marryatt, the author, went to
America and tried to obtain a copyright for his works there;
but was told if he liked to renounce his allegiance to Her
Majesty the Queen of England and become an American citizen
he could have the same rights as other American authors. He
replied that he had no desire to be strung up on the yard-arm
of his own vessel as a traitor. He would therefore decline
the honour of American citizenship.
In 1869 an attempt was made on both sides of the Atlantic,
by discussing the matter of international copyright between the
United States and England, to come to some understanding. A
considerable amount of recrimination was used without effecting
any good. Having occasion to write to my friend the late Dr.
Mason of New York, I mentioned the subject of copyright
conventions, and received a reply, which I sent to the Book-
seller in August, 1869:-
Sir,-On Saturday last I received a letter from Dr. Lowell
Mason, of New York, the prime mover of Musical Educa-
tion in America for the last fifty years, and the best class-
teacher on that subject that it has been my happiness to be
acquainted with. His method of teaching is both philosophical
and simple. As a national method, it is by far the best I have
ever seen; and its adoption in this country would be a most
valuable boon to our national as well as to our general schools.
His plan is founded upon the system of Pestalozzi, which
system is better adapted to bring out the ideas of the children
themselves, and thus really to thoroughly educate them, than
any other system whatever. He has not yet published his book,
but he has so imbued his scholars with its practical use and
G
82
working that those who are well versed in his method want
nothing but the "black board" and a piece of chalk to teach
with. He uses the Universal Notation, and makes the learning
to read music one of the pleasantest of gratifications, and at
the same time he imparts the most complete and effectual know-
ledge of that delightful art, so that it can never be forgotten by
those who have once gone through his course.
He is now pre-
paring his plan for the Press, although in his seventy-eighth
year; and he tells me he hopes his work will shortly be
published.
In my last letter to him I broached the subject of interna-
tional copyright, and animadverted upon that subject rather
strongly, urging against the American booksellers the taking
the works of our authors and republishing them, without even
an acknowledgment, in most cases. It is true they could not
help admitting their authorship, but they utterly ignored their
right to pay anything for them. He says in reply, "As to the
international copyright question: my son, who is a bookseller,
was present when my wife read to me your letter (he himself,
being nearly blind, was unable to read it). He said, I have
been familiar with the book business, and with booksellers and
publishers, for about twenty years, and I have never heard from
one single person the utterance of the least disinclination to
reciprocate a just and fair law on that subject. I think, on the
contrary, it has been universally desired in this country.' Now,
if so, where are the greedy booksellers of whom you speak ?
The fact is, if I mistake not, the English claimed all, and they
would allow the Americans nothing; but, now that they see
there is something here, they are beginning to yield somewhat,
and the old will is being subdued. Our late civil war has had
no small influence in bringing about a different estimation in
England of Yankeedom than had before prevailed." Thus, you
see, sir, it is only needful that we show to the Americans our
willingness to meet them fairly, and to urge on our ministers
to make a strong move in the matter, especially as the present
American Ambassador is so clever a literary man; and there
is very little doubt but that an international copyright will be
83
speedily and easily accomplished. By lending your aid to so
excellent an object you will be doing an important service to
all concerned in that great desideratum.
I am, &c.,
CHARLES H. PURDAY.
Mr. Justin McCarthy wrote a letter to the London Echo
on the subject of international copyright, in which he pays an
unmerited compliment to American publishers, as a class, for
their honourable treatment of English authors whose works they
reprint. "There are not many examples, probably, in human
affairs," says he, "of men thus systematically paying, as a trade
practice, money which no law of their country binds them to
pay." Indeed, we believe the sentiment of the trade on this
subject is actually in advance of the sentiment of the public,
and when we get an honest copyright law, as we doubtless
shall in time, the booksellers will be the leaders of the reform.
A great deal of the popular dislike—or perhaps it would be
more correct to say apathy-towards the proposed measure
springs from two misconceptions; it is believed, first, that
international copyright would raise the price of books to the
same high standard which prevails in London; and, secondly,
that the manufacture of books on this side of the water would
be checked, and we should import what we now make. Neither
result would be likely to follow. The royalty to an author does
not sensibly enchance the cost of a book to the purchaser. It
is but a small sum on each volume—say, ten cents on a book
which sells for a dollar-and the publisher can afford to pay
that for the security which a copyright law gives him. As the
case now stands English reprints are not cheaper on the average
in our works than American books. If English books are dear,
it is because English publishers find it for their advantage to
print small editions in expensive style and charge a high price.
If American books are cheap, it is because we have a large com-
munity of readers who prefer inferior type and paper with a
correspondingly reduced price. Copyright or no copyright, our
market would certainly be supplied with the quality of goods
which the public taste required.
84
Neither does international copyright necessarily imply that
the manufacture of reprints in this country must be stopped.
It only provides that when we reprint a book we shall
pay for
it, and acquire by such payment a right of property in it.
Whether foreign works designed for circulation in the United
States shall be printed in London and Edinburgh, or in New
York, Boston, and Philadelphia, does not depend in the least
upon the tenure of literary property. It is an economical
question with which the tariff will have a great deal more to do
than the copyright bill.-New York Tribune.
-0
CHAPTER XVI.
ON AMERICAN IDEAS OF CONVENTION.
From an article in the Fortnightly,* contributed by Dr.
Appleton, we find the subject of international copyright with
America is again mooted in all its phases; and every objection
brought forward that can possibly be urged against anything
like a liberal view of it taken by the American protectionists.
If Brother Jonathan could have it all his own way, he might be
induced to try how the matter would work; but the "allmighty
dollar" has more influence on the American mind than the
pretence that high prices in scientific works written by English
authors would drive Yankee mechanics to take up cheap and
immoral literature in their place, because of the few shillings
they might have to pay more in a year for better works, or
rather better copies of scientific works.
Protectionist economy and political economy may be very
different matters. It is not always the selfish principle that
makes a man or a country rich; on the contrary, it is "liberality
begets liberality." Not that we ask the Americans to be liberal;
what we ask of them is to be honest.
"The fundamental idea of Mr. Carey's social science in his
statement is that of the decentralisation of industry. A com-
* February, 1877. Chapman and Hall,
85
munity, he holds, should aim at producing all the commodities
it needs, so as to be independent of its neighbours. Now
international copyright, supposing it established, would either
place the monopoly of the American market for English books.
in the hands of the great English firms, thus making America
dependent upon her neighbour, or else it would place it in the
hands of five or six of the most important firms in the three
Atlantic cities, New York, Boston, and Philadelphia; thus
conflicting with the principle of internal decentralisation. As
to the payment of English authors, he admits "he does not
agree with those who protest against international copyright
on the score that such payment would increase the price of
those reprints."
(C
"If nothing better than this can be said,” he exclaims (in his
“Letters on International Copyright”),
we may as well at
once plead guilty to the charge of piracy and commence a new
and more honest course of action. Evil may not be done that
good may come of it, nor may we steal an author's brains that
our people may be cheaply taught. We stand in need of no
such morality as this. We can afford to pay for what we want;
but even were it otherwise, our motto, here and everywhere,
should be the old French one: Fais ce que doy, advienne que
pourra." But we may ask if this motto Brother Jonathan quotes
is either believed in by him or ever carried out in reality.
It is the old adage, "Don't do as we do, but do as we say,"
not, “Do what is right, come what may." This last is not
Brother Jonathan's principle in dealing with English copyrights,
or anything else English.
(From the "Standard" Feb. 2, 1877.)
In the new number of the Fortnightly Review Dr. Appleton
ably states some of the difficulties standing in the way of an
adjustment of the vexed question of international copyright.
Opinion in the United States, says Dr. Appleton, appears to be
divided, roughly speaking, according to geographical area. The
New England States, to which the greater number of eminent
American authors belong, are in favour of an international
86
copyright wholly unfettered and unrestricted. A few of the
Boston publishers entertain similar views. On the other side,
however, is the "Philadelphia School," led by Mr. Carey, a
distinguished economist and a powerful advocate of protection.
He is strongly opposed to international copyright in any shape
or form, and he is backed up by several important interests in
the Middle and Western States. Chief among these of course
are the large publishing houses, much of whose trade consists
of the reprinting of English books, and who fear that with
English competition they would be unable to maintain their
ground. The paper-makers, printers, and type-founders are
influenced by the same considerations; and lastly, but by no
means least, there are the Western farmers, whose experience
of the working of the Patent Laws impels them to object to any
change which is calculated to enlarge the rights of foreigners,
either as authors or inventors. But although these several
classes are opposed to international copyright, they are not
altogether satisfied with things as they are. The publishers
are put to great inconvenience and sometimes to useless expense
in their efforts to anticipate competition, and as a natural con-
sequence of the haste with which the work has to be done it is
seldom of a satisfactory character. Excellence of workmanship
is scarcely to be expected where the principal consideration is
to be the first in the market. The continuance of the existing
order of things, therefore, is almost as injurious to trade inter-
ests as it is detrimental to the just rights of authors. Yet the
probability of any agreement upon the subject being arrived at
by those whose interests are immediately concerned is exceed-
ingly remote. The proposal which appeared to command the
most general approval was that an English author should be
allowed to copyright his book in the United States if it was
wholly remanufactured there. This plan, it was hoped, would meet
the wishes of the printers and publishers; but it was at once.
objected that an English house having an American branch
and an American partner would be able to control the market
and drive the American houses from the field. Mr. Sherman's
bill suggested a compromise, in accordance with which a foreign
87
author could obtain copyright for his book in the United States,
and then any publisher could produce it, paying the author a
royalty upon the selling price of each copy. The New York
houses, however, such as Harper & Co., contended that no-
body would undertake the cost of printing, publishing, and
advertising a book which every house was at liberty to publish.
Finding it impossible to harmonise the various conflicting views,
the Congressional committee reported to that effect, and added
that "any project for an international copyright will be found
upon mature deliberation to be inexpedient." This was merely
shirking the difficulty, and the efforts that have since been
made to bring about an understanding which shall be satisfactory
to all parties prove that sooner or later a basis will be discovered
upon which negotiations can be carried to a successful issue.
But we are inclined to think that this is a question which the
United States Government is morally bound to take up. The
matter ought no longer to be left in the hands of individual
members of Congress, however influential or however earnest
their intentions. The Government of a country is the
guardian of public morality, and it is unworthy of a great
people to violate the principles of justice by taking advantage
of the mere absence of legislation. The more respectable
American publishers feel this, and are anxious to remove the
stigma which now rests upon them as a class. They deal
liberally with English authors, although they are fully aware of
the risks they run from unprincipled men, whose only aim is to
put money into their own pockets. But, we repeat, it is to the
Government of the United States that both they and we are
entitled to look for redress. A strong Government, desirous
of standing well in the eyes of the world, could easily frame an
Act which would answer all reasonable objections, and override
those less worthy of consideration. We trust that when the
Royal Commission, now sitting at Westminister, has reported,
the American Government may be moved to take such action
as will vindicate the honour of the country and the honesty of
her citizens.
88
CHAPTER XVII.
AN ACT TO AMEND THE LAW OF COPYRIGHT
(5 & 6 Vic., c. 45).
Whereas it is expedient to amend the law relating to copy-
right, and to afford greater encouragement to the production of
literary works of lasting benefit to the world: be it enacted
by the Queen's most excellent Majesty, by and with the advice
and consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by authority of the
same, that from the passing of this Act an Act passed in the
eighth year of the reign of her Majesty Queen Anne, intituled
"An Act for the Encouragement of Learning, by vesting the
Copies of Printed Books in the Authors or Purchasers of such
Copies during the times therein-mentioned ;" and also an Act
passed in the forty-first year of the reign of his Majesty King
George the Third, intituled "An Act for the further Encourage-
ment of Learning in the United Kingdom of Great Britain
and Ireland, by securing the Copies and Copyright of Printed
Books to the Authors of such Books or their Assigns, for the
time therein-mentioned ;" and also an Act passed in the fifty-
fourth year of the reign of his Majesty King George the Third,
intituled “An Act to amend several Acts for the Encourage-
ment of Learning, by securing the Copies and Copyright of
Printed Books to the Authors of such Books or their Assigns,"
be and the same are hereby repealed, except so far as the con-
tinuance of either of them may be necessary for carrying on or
giving effect to any proceedings at law or in equity pending at
the time of passing this Act, or for enforcing any cause of
action or suit, or any right or contract then subsisting.
2. And be it enacted, that in the construction of this Act the
word "book" shall be construed to mean and include every
volume, part or division of a volume, pamphlet, sheet of letter-
press, sheet of music, map, chart, or plan separately published;
that the words "dramatic piece" shall be construed to mean
and include every tragedy, comedy, play, opera, farce, or other
scenic, musical or dramatic entertainment; that the word
89
"copyright" shall be construed to mean the sole and exclusive
liberty of printing or otherwise multiplying copies of any
subject to which the said word is herein applied; that the
words "personal representative" shall be construed to mean
and include every executor, administrator, and next of kin
entitled to administration; 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
boɔk, and whether acquired by sale, gift, bequest, or by operation
of law or otherwise; that the words "British Dominions" shall
be construed to mean and include all parts of the United
Kingdom of Great Britain and Ireland, the islands of Jersey
and Guernsey, all parts of the East and West Indies, and all
the colonies, settlements, and possessions of the crown which
now are or hereafter may be acquired; and that whenever in
this Act, in describing any person, matter, or thing, the word
importing the singular number or the masculine gender only is
used, the same shall be understood to include and to be applied
to several persons as well as one person, and females as well as
males, and several matters or things as well as one matter or
thing, respectively, unless there shall be something in the
subject or context repugnant to such construction.
3. And be it enacted, 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 assigns; 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 copy-
right in 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.
90
4. And whereas it is just to extend the benefits of this Act
to authors of books published before the passing thereof, and in
which copyright still subsists, be it enacted, that the copyright
which at the time of passing this Act shall subsist in any book
theretofore published (except as hereinafter mentioned) shall
be extended and endure for the full term provided by this Act
in cases of books thereafter published, and shall be the property
of the person who at the time of passing of this Act shall be
the proprietor of such copyright: Provided always, that in
all cases in which such copyright shall belong in whole or
in part to a publisher or other person who shall have acquired
it for other consideration than that of natural love and affection,
such copyright shall not be extended by this Act, but shall
endure for the term which shall subsist therein at the time of
passing of this Act, and no longer, unless the author of such
book, if he shall be living, or the personal representative of
such author, if he shall be dead, and the proprietor of such
copyright, shall, before the expiration of such term, consent and
agree to accept the benefits of this Act in respect of such book,
and shall cause a minute of such consent in the form in that
behalf given in the schedule to this Act annexed to be entered
in the book of registry hereinafter directed to be kept, in
which case such copyright shall endure for the full term by this
Act provided in cases of books to be published after the passing
of this Act, and shall be the property of such person or persons
as in such minute shall be expressed.
5. And whereas it is expedient to provide against the sup-
pression of books of importance to the public, be it enacted,
That it shall be lawful for the Judicial Committee of Her
Majesty's Privy Council, on complaint made to them that the
proprietor of the copyright in any book after the death of its
author has refused to republish or to allow the republication of
the same, and that by reason of such refusal such book may be
withheld from the public, to grant a license to such complainant
to publish such book, in such manner and subject to such con-
ditions as they may think fit, and that it shall be lawful for
such complainant to publish such book according to such license.
91
6. And be it enacted, that a printed copy of the whole of
every book which shall be published after the passing of this
Act, together with all maps, prints, or other engravings belong-
ing thereto, finished and coloured in the same manner as the
best copies of the same shall be published, and also of any
second or subsequent edition which shall be so published with
any additions or alterations, whether the same shall be in
letter-press, or in the maps, prints, or other engravings belonging
thereto, and whether the first edition of such book shall have
been published before or after the passing of this Act, and also
of any second or subsequent edition of every book of which
the first or some preceding edition shall not have been delivered
for the use of the British Museum, bound, sewed, or stitched
together, and upon the best paper on which the same shall be
printed, shall within one calendar month after the day on which
any such book shall first be sold, published, or offered for sale
within the bills of mortality, or within three calendar months
if the same shall first be sold, published, or offered for sale in
any other part of the United Kingdom, or within twelve calen-
dar months after the same shall first be sold, published, or
offered for sale in any other part of the British Dominions, be
delivered, on behalf of the publisher thereof, at the British
Museum.
7. And be it enacted, that every copy of any book which
under the provisions of this Act ought to be delivered as
aforesaid shall be delivered at the British Museum between the
hours of ten in the forenoon and four in the afternoon on any
day except Sunday, Ash Wednesday, Good Friday, and Christ-
mas Day, to one of the officers of the said museum, or to some
person authorised by the trustees of the said museum to receive
the same, and such officer or other person receiving such copy
is hereby required to give a receipt in writing for the same,
and such delivery shall to all intents and purposes be deemed
to be good and sufficient delivery under the provisions of this
Act.
8. And be it enacted, that a copy of the whole of every
book, and of any second or subsequent edition of every book
92
containing additions and alterations, together with all maps.
and prints belonging thereto, which after the passing of this
Act shall be published, shall, on demand thereof in writing,
left at the place of abode of the publisher thereof, at any time
within twelve months next after the publication thereof, under
the hand of the officer of the Company of Stationers who shall
from time to time be appointed by the said company for the
purposes of this Act, or under the hand of any other person
thereto authorised by the persons or bodies politic and corpo-
rate, proprietors and managers of the libraries following:
(videlicet) the Bodleian Library at Oxford, the Public Library
at Cambridge, the Library of the Faculty of Advocates at
Edinburgh, the Library of the College of the Holy Undivided
Trinity of Queen Elizabeth near Dublin, be delivered, upon the
paper of which the largest number of copies of such book or
edition shall be printed for sale, in the like condition as the
copies prepared for sale by the publisher thereof respectively,
within one month after demand made thereof in writing as
aforesaid to the said officer of the said Company of Stationers
for the time being, which copies the said officer shall and he is
hereby required to receive at the hall of the said Company, for
the use of the library for which such demand shall be made
within such twelve months as aforesaid; and the said officer is
hereby required to give a receipt in writing for the same, and
within one month after any such book shall be so delivered to
him as aforesaid to deliver the same for the use of such library.
9. Provided also, and be it enacted, that if any publisher
shall be desirous of delivering the copy of such book as shall be
demanded on behalf of any of the said libraries at such library,
it shall be lawful for him to deliver the same at such library,
free of expense, to such librarian or other person authorised to
receive the same (who is hereby required in such case to receive
and give a receipt in writing for the same), and such delivery
shall to all intents and purposes of this Act be held as equiva-
lent to a delivery to the said officer of the Stationers' Company.
10. And be it enacted, that if any publisher of any such book
or of any second or subsequent edition of any such book, shall
93
neglect to deliver the same, pursuant to this Act, he shall for
every such default forfeit, besides the value of such copy of
such book or edition which he ought to have delivered, a sum
not exceeding five pounds, to be recovered by the librarian or
other officer (properly authorised), of the library for the use
whereof such copy should have been delivered, in a summary
way, on conviction before two justices of the peace for the
county or place where the publisher making default shall reside,
or by action of debt or other proceeding of the like nature, at
the suit of such librarian or other officer, in any court of record
in the United Kingdom, in which action, if the plaintiff shall
obtain a verdict, he shall recover his costs reasonably incurred,
to be taxed as between attorney and client.
11. And be it enacted, that a book of registry, wherein may
be registered, as hereinafter enacted, the proprietorship in the
copyright of books, and assignments thereof, and in dramatic
and musical pieces, whether in manuscript or otherwise, and
licenses affecting such copyright, shall be kept at the hall of the
Stationers' Company by the officer appointed by the said
company for the purposes of this Act, and shall at all con-
venient times be open to the inspection of any person, on pay-
ment of one shilling for every entry which shall be searched for
or inspected in the said book; and that such officer shall,
whenever thereunto reasonably required, give a copy of any
entry in such book, certified under his hand, and impressed with
the stamp of the said Company, to be provided by them for that
purpose, and which they are hereby required to provide, to any
person requiring the same, on payment to him of the sum of
five shillings; and such copies so certified and impressed shall
be received in evidence in all courts, and in all summary
proceedings, and shall be primâ facie proof of the proprietor-
ship or assignment of copyright or license as therein expressed,
but subject to be rebutted by other evidence, and in the case of
dramatic or musical pieces shall be prima facie proof of the
right of representation or performance, subject to be rebutted as
aforesaid.
12. And be it enacted, that if any person shall wilfully
94
make or cause to be made any false entry in the registry book
of the Stationers' Company, or shall wilfully produce or cause
to be tendered in evidence any paper falsely purporting to be a
copy of any entry in the said book, he shall be guilty of an
indictable misdemeanor, and shall be punished accordingly.
13. And be it enacted, that after the passing of this Act, it
shall be lawful for the proprietor of copyright in any book here-
tofore published, or in any book hereafter to be published, to
make entry in the registry book of the Stationers' Company of
the title of such book, the time of the first publication thereof,
the name and place of abode of the publisher thereof, and the
name and place of abode of the proprietor of the copyright of the
said book, or of any portion of such copyright, in the form in
that behalf given in the schedule to this Act annexed, upon
payment of the sum of five shillings to the officer of the said
Company; and that it shall be lawful for every such registered
proprietor to assign his interest, or any portion of his interest
therein, by making entry in the said book of registry of such
assignment, and of the name and place of abode of the assignee
thereof, in the form given in that behalf in the said schedule,
on payment of the like sum; and such assignment so entered
shall be effectual in law to all intents and purposes whatsoever,
without being subject to any stamp or duty, and shall be of the
same force and effect as if such assignment had been made by
deed.
14. And be it enacted, that if any person shall deem himself
aggrieved by any entry made under colour of this Act in the
said book of registry, it shall be lawful for such person to apply
by motion to the Court of Queen's Bench, Court of Common
Pleas, or Court of Exchequer, in term time, or to apply by
summons to any judge of either of such courts in vacation, for
an order that such entry may be expunged or varied; and that
upon any such application by motion or summons to either of
the said courts, or to a judge as aforesaid, such court or judge
shall make such order for expunging, varying, or confirming
such entry, either with or without costs, as to such court or
judge shall seem just; and the officer appointed by the
95
Stationers' Company for the purposes of this Act shall, on the
production to him of any such order for expunging or varying
any such entry, expunge or vary the same according to the
requisitions of such order.
15. And be it enacted, that if any person shall, in any part
of the British Dominions, after the passing of this Act, print or
cause to be printed, either for sale or exportation, any book in
which there shall be subsisting copyright, without the consent
in writing of the proprietor thereof, or shall import for sale or
hire any such book so having been unlawfully printed from
parts beyond the sea, or, knowing such book to have been so
unlawfully printed or imported, shall sell, publish, or expose to
sale or hire, or cause to be sold, published, or exposed to sale
or hire, or shall have in his possession, for sale or hire, any
such book so unlawfully printed or imported, without such con-
sent as aforesaid, such offender shall be liable to a special action
on the case at the suit of the proprietor of such copyright, to
be brought in any Court of Record in that part of the British
Dominions in which the offence shall be committed: provided
always, that in Scotland such offender shall be liable to an
action in the Court of Session in Scotland, which shall and
may be brought and prosecuted in the same manner in which
any other action of damages to the like amount may be brought
and prosecuted there.
16. And be it enacted, that after the passing of this Act, in
any action brought within the British Dominions against any
person for printing any such book for sale, hire, or exportation,
or for importing, selling, publishing, or exposing to sale or hire,
or causing to be imported, sold, published, or exposed to sale
or hire, any such book, the defendant, on pleading thereto,
shall give to the plaintiff a notice in writing of any objections
on which he means to rely on the trial of such action; and if
the nature of his defence be, that the plaintiff in such action
was not the author or first publisher of the book in which he
shall by such action claim copyright, or is not the proprietor of
the copyright therein, or that some other person than the
plaintiff was the author or first publisher of such book, or is the
96
proprietor of the copyright therein, then the defendant shall
specify in such notice the name of the person who he alleges to
have been the author or first publisher of such book, or the
proprietor of the copyright therein, together with the title of
such book, and the time when and the place where such book
was first published, otherwise the defendant in such action shall
not at the trial or hearing of such action be allowed to give any
evidence that the plaintiff in such action was not the author or
first publisher of the book in which he claims such copyright as
aforesaid, or that he was not the proprietor of the copyright
therein; and at such trial or hearing no other objection shall
be allowed to be made on behalf of such defendant than the
objections stated in such notice, or that any other person was
the author or first publisher of such book, or the proprietor of
the copyright therein, than the person specified in such notice,
or give in evidence in support of his defence any other book than
one substantially corresponding in title, time, and place of pub-
lication with the title, time, and place specified in such notice.
17. And be it enacted, that after the passing of this Act it
shall not be lawful for any person, not being the proprietor of
the copyright, or some person authorised by him, to import
into any part of the United Kingdom, or into any other part
of the British Dominions, for sale or hire, any printed book
first composed or written or printed and published in any part
of the said United Kingdom, wherein there shall be copyright,
and reprinted in any country or place whatsoever out of the
British Dominions; and if any person, not being such pro-
prietor or person authorised as aforesaid, shall import or bring,
or cause to be imported or brought, for sale or hire, any such
printed book, into any part of the British Dominions, contrary
to the true intent and meaning of this Act, or shall knowingly
sell, publish, or expose to sale or let to hire, or have in his
possession for sale or hire, any such book, then every such
book shall be forfeited, and shall be seized by any officer of
Customs or Excise, and the same shall be destroyed by such
officer; and every person so offending, being duly convicted
thereof before two justices of the peace for the county or place.
97
in which such book shall be found, shall also for every such
offence forfeit the sum of ten pounds and double the value of
every copy of such book which he shall so import or cause to
be imported into any part of the British Dominions, or shall
knowingly sell, publish, or expose to sale or let to hire, or shall
cause to be sold, published, or exposed to sale or let to hire, or
shall have in his possession for sale or hire, contrary to the
true intent and meaning of this Act, five pounds to the use of
such officer of Customs or Excise, and the remainder of the
penalty to the use of the proprietor of copyright in such book.
18. And be it enacted, that when any publisher or other
person shall, before or at the time of the passing of this Act,
have projected, conducted, and carried on, or shall hereafter
project, conduct, and carry on, or be the proprietor of any
encyclopædia, review, magazine, periodical work, or work pub-
lished in a series of books or parts, or any book whatsoever,
and shall have employed or shall employ any person to compose
the same, or any volumes, parts, essays, articles, or portions
thereof, for publication in or as part of the same, and such
work, volumes, parts, essays, articles, or portions shall have
been or shall hereafter be composed under such employment,
on the terms that the copyright therein shall belong to such
proprietor, projector, publisher, or conductor, and paid for by
such proprietor, projector, publisher, or conductor, the copy-
right in every such encyclopædia, review, magazine, periodical
work, and work published in a series of books or parts, and in
every volume, part, essay, article, and portion so composed and
paid for, shall be the property of such proprietor, projector,
publisher, or other conductor, who shall enjoy the same rights
as if he were the actual author thereof, and shall have such
term of copyright therein as is given to the authors of books
by this Act; except only that in the case of essays, articles, or
portions forming part of and first published in reviews, maga-
zines, or other periodical works of a like nature, after the term
of twenty-eight years from the first publication thereof respec-
tively the right of publishing the same in a separate form shall
revert to the author for the remainder of the term given by this
H
98
Act: provided always, that during the term of twenty-eight
years the said proprietor, projector, publisher, or conductor
shall not publish any such essay, article, or portion separately
or singly without the consent previously obtained of the author
thereof, or his assigns: provided also, that nothing herein con-
tained shall alter or affect the right of any person who shall
have been or who shall be so employed as aforesaid to publish
any such his composition in a separate form, who by any
contract, express or implied, may have reserved or may here-
after reserve to himself such right; but every author reserving,
retaining, or having such right shall be entitled to the copyright
in such composition when published in a separate form, accord-
ing to this Act, without prejudice to the right of such proprietor,
projector, publisher, or conductor as aforesaid.
19. And be it enacted, that the proprietor of the copyright
in any encyclopædia, review, magazine, periodical work, or other
work published in a series of books or parts, shall be entitled
to all the benefits of the registration at Stationers' Hall under
this Act, on entering in the said book of registry the title of
such encyclopædia, review, periodical work, or other work
published in a series of books or parts, the time of the first
publication of the first volume, number, or part thereof, or of
the first number or volume first published after the passing of
this Act in any such work which shall have been published
heretofore, and the name and place of abode of the proprietor
thereof, and of the publisher thereof, when such publisher shall
not also be the proprietor thereof.
20. And whereas an Act was passed in the third year of
the reign of His late Majesty, to amend the law relating to
dramatic literary property, and it is expedient to extend the
term of the sole liberty of representing dramatic pieces given
by that Act to the full time by this Act provided for the con-
tinuance of copyright: And whereas it is expedient to extend
to musical compositions the benefits of that Act, and also of
this Act, be it therefore enacted, that the provisions of the
said Act of His late Majesty, and of this Act, shall apply to
musical compositions, and that the sole liberty of representing
99
or performing, or causing or permitting to be represented or
performed, any dramatic piece or musical composition, shall
endure and be the property of the author thereof, and his
assigns, for the term in this Act provided for the duration of
copyright in books; and the provisions herein before enacted in
respect of the property of such copyright, and of registering the
same, shall apply to the liberty of representing or performing
any dramatic piece or musical composition, as if the same were
herein expressly re-enacted and applied thereto, save and
except that the first public representation or performance of
any dramatic piece or musical composition shall be deemed
equivalent, in the construction of this Act, to the first publication
of any book: Provided always, that in case of any dramatic
piece, or musical composition in manuscript, it shall be sufficient
for the person having the sole liberty of representing or per-
forming, or causing to be represented or performed the same, to
register only the title thereof, the name and place of abode of
the author or composer thereof, the name and place of abode of
the proprieter thereof, and the time and place of its first repre-
sentation or performance.
21. And be it enacted, that the person who shall at any
time have the sole liberty of representing such dramatic piece or
musical composition shall have and enjoy the remedies given and
provided in the said Act of the third and fourth years of the
reign of his late Majesty King William the Fourth, passed to
amend the laws relating to dramatic literary property, during
the whole of his interest therein, as fully as if the same were
re-enacted in this Act.
22. And be it enacted, that no assignment of the copyright
of any book consisting of or containing a dramatic piece or
musical composition shall be holden to convey to the assignee.
the right of representing or performing such dramatic piece
or musical composition, unless an entry in the said registry
book shall he made of such assignment, wherein shall be ex-
pressed the intention of the parties that such right should pass
by such assignment.
23. And be it enacted, that all copies of any book wherein
Uor M
100
there shall be copyright, and of which entry shall have been
made in the said registry book, and which shall have been
unlawfully printed or imported without the consent of the
registered proprietor of such copyright, in writing under his
hand first obtained, shall be deemed to be the property of the
proprietor of such copyright, and who shall be registered as
such; and such registered proprietor shall, after demand thereof
in writing, be entitled to sue for and recover the same, or
damages for the detention thereof, in an action of detinue,
from any party who shall detain the same, or to sue for and
recover damages for the conversion thereof in an action of
trover.
:
24. And be it enacted, that no proprietor of copyright in
any book which shall be first published after the passing of this
Act shall maintain any action or suit, at law or in equity, or any
summary proceeding, in respect of any infringement of such
copyright, unless he shall, before commencing such action, suit,
or proceeding, have caused an entry to be made in the book of
registry of the Stationers' Company, of such book, pursuant to this
Act provided always, that the omission to make such entry
shall not affect the copyright in any book, but only the right to
sue or proceed in respect of the infringement thereof as afore-
said provided also, that nothing herein contained shall preju-
dice the remedies which the proprietor of the sole liberty of
representing any dramatic piece shall have by virtue of the Act
passed in the third year of the reign of his late Majesty King
William the Fourth, to amend the laws relating to dramatic
literary property, or of this Act, although no entry shall be
made in the book of registry aforesaid.
25. And be it enacted, that all copyright shall be deemed
personal property, and shall be transmissible by bequest, or, in
case of intestacy, shall be subject to the same law of distribution
as other personal property, and in Scotland shall be deemed to
be personal and moveable estate.
26. And be it enacted, that if any action or suit shall be
commenced or brought against any person or persons whomso-
ever for doing or causing to be done anything in pursuance of
101
this Act, the defendant or defendants in such action may plead
the general issue, and give the special matter in evidence; and
if upon such action a verdict shall be given for the defendant,
or the plaintiff shall become nonsuited, or discontinue his
action, then the defendant shall have and recover his full costs,
for which he shall have the same remedy as a defendant in any
case by law hath; and 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; provided that such
limitation of time shall not extend or be construed to extend to
any actions, suits, or other proceedings, which, under the
authority of this Act, shall or may be brought, sued, or com-
menced for or in respect of any copies or books to be delivered
for the use of the British Museum, or of any one of the four
libraries herein before mentioned.
27. Provided always, and be it enacted, that nothing in this
Act contained shall affect or alter the rights of the two Univer-
sities of Oxford and Cambridge, the Colleges or houses of
learning within the same, the four Universities in Scotland, the
College of the Holy and Undivided Trinity of Queen Elizabeth,
near Dublin, and the several Colleges of Eton, Westminster, and
Winchester, in any copyrights heretofore and now vested or
hereafter to be vested in such Universities and Colleges respec-
tively, anything to the contrary herein contained notwith-
standing.
28. Provided also, and be it enacted, that nothing in this
Act contained shall affect, alter or vary any right subsisting at
the time of the passing of this Act, except as herein expressly
enacted; and all contracts, agreements and obligations made
and entered into before the passing of this Act, and all remedies
relating thereto, shall remain in full force, anything herein
contained to the contrary notwithstanding.
29. And be it enacted, that this Act shall extend to the
United Kingdom of Great Britain and Ireland, and to every
part of the British Dominions.
Dorm
102
30. And be it enacted, that this Act may be amended or
repealed by any Act to be passed in the present session of
Parliament.
SCHEDULE to which the preceding Act refers.
No. 1.
FORM of MINUTE OF CONSENT to be entered at Stationers'
Hall.
WE, the undersigned A. B. of
the author of a certain
book intituled Y. Z. [or the personal representative of the
author, as the case may be], and C. D. of
do hereby
certify, that we have consented and agreed to accept the bene-
fits of the Act passed in the fifth year of the reign of her
Majesty Queen Victoria, cap.
for the extension of
the term of copyright therein provided by the said Act, and
hereby declare that such extended term of copyright therein is
the property of the said A. B. or C. D.
Dated this
Witness
day of
18.
(Signed) A. B.
C. D.
To the registering officer appointed by the Stationers'
Company.
No. 2,
FORM of REQUIRING ENTRY of PROPRIETORSHIP.
I, A. B. of do hereby certify, that I am the proprietor
of the copyright of a book intituled Y. Z., and I hereby require
you to make entry in the register book of the Stationers'
Company of my proprietorship of such copyright, according to
the particulars underwritten.

Title of Book.
Name of Publisher,
and Place of
Publication.
Name and Place of
Abode of the
Proprietor of the
Copyright.
A.B.
Date of
First Publication.
Y.Z.
Dated this
Witness, C. D.
Maou
day of
18.
(Signed) A. B.
103
No. 3.
ORIGINAL ENTRY of PROPRIETORSHIP of COPYRIGHT of a
Book.

Time of Making Title of Book.
the Entry.
Name of the
Publisher, and
Place of
Publication.
Name and Place
of Abode of
the Proprietor
of the
Copyright.
Y.Z.
A.B.
C.D.
Date of First
Publication.
No. 4,
FORM of CONCURRENCE of the PARTY assigning in any Book
previously registered.
I, A. B. of , being the assignor of the copyright of the
book hereunder described, do hereby require you to make
entry of the assignment of the copyright therein.

Title of Book.
Assigner of the Copyright. Assignee of Copyright.
Y.Z.
A.B.
C.D.
Dated this
day of
18.
(Signed) A. B.
104
No. 5.
FORM of ENTRY of ASSIGNMENT of COPYRIGHT in any Book
previously registered.
Date of Entry.
Title of Book.
Assigner of the
Copyright.
Assignee of
Copyright:
[Set out the Title
of the Book, and
refer to the Page
of the Registry
Book in which
the original Entry
of the Copyright
thereof is made.]
A.B.
C.D.
CHAPTER XVIII.
ON THE STATUTORY REQUISITES TO BE OBSERVED UNDER
THE PRESENT ACT, 5 & 6 VIC., c. 45.
Registration, according to sec. 11, provides a book at Sta-
tioners' Hall, "where may be entered," according to a certain.
form in that section, the proprietorship of a copyright; which
entry, on payment of 5s., may be made; and a copy of which
entry, on payment of 5s. more, shall be prima facie proof
of assignment, and be received as evidence in all courts and
summary proceedings, subject to be rebutted by evidence to the
contrary.
Sec. 13 shows that such entry must state the title of the work,
the name and place of abode of the proprietor of the copyright,
and the name and place of abode of the publisher, and the date
of publication; and that it shall be lawful for every registered
proprietor to assign his interest or any portion of his interest.
in such assignment on payment of 5s.; and such assignment
so entered shall be effectual in law without being subject to
any stamp duty, &c.
No copyright, however, is acquired by the registration, nor
105
will any entry of a work be made before publication. And al-
though no person need make entry, except he wants to bring an
action for infringement of his copyright, it will be time enough
to enter when such infringement is made, before he takes action
to punish the wrong-doer. But when entry is to be made, care
must be taken to be strictly accurate, or it may compel the pro-
prietor to amend his case before it can be proceeded with. The
form of entry is to be found in the Schedule No. 2, at the end of
the Act. It has been decided that if there is the slightest
omission in the description of the entry, it may cause a non-
suit; and although the plaintiff may have a regular assignment
to prove his proprietorship, yet that will not avail unless his
work be entered as the Act directs, viz.: the very day of publi-
cation, the exact names and addresses of the publisher and pro-
prietor, and the particulars of the title of the work.
The statute authorises any person to make an entry as pro-
prietor; but it does not say what such person may require to do
in order to satisfy the keeper of the Register before he will
make such registration (18 Scotch Session Cas. 915).
In a periodical work it is only necessary to register the first
part, number, or volume (see sec. 19). But a title only cannot
be secured by entry (Hogg v. Maxwell, L. Rep., 2 chap., App.
316.)
A copy of every work published must be deposited at the
British Museum within one month of its publication within the
bills of mortality, or if published in any other part of the United
Kingdom, within three months of its publication, under a
penalty of £5 and the value of the book, for default of delivery
(see secs. 6, 7, and 8).
The provisions of the Act as to registration will be found in
sections 11, 12, 13, 14, 19, 22, and 24. Entries of assign-
ments, and licenses of copyright, and proprietorship thereof
may be made in the Register at Stationers' Hall. To register
a copyright, form No. 2 is generally used; but to register an
assignment, form No. 4 must be filled up and signed by the
assignor. There are five different forms, which are given
in the schedule at the end of the Act, but no form for the
106
right of performing a drama or musical composition. Form
No. 1 is called a "Minute of Consent," and is intended to
secure the extension of the term of copyright in works pub-
lished before the present Act, in which there is still subsisting
copyright. (See sec. 4 for an explanation of this "Minute
of Consent," which author and assignee must both sign.)
For the right of representation or performance of a drama,
tragedy, comedy, play, opera, farce, or any other dramatic piece
or musical composition, a separate entry must be made, unless
the assignment states that such right is purchased with the
copyright (see sec. 20 and 22). It has been settled by the
Bench that the singing of any song or musical composition,
if performed in a concert room, without the written permission
of the proprietor, makes the performer liable to a penalty of
40s.; and this penalty has been frequently exacted, as well
for the words as the music, to the great disgust of singers,
who were innocent of any such penalty, or requisite in the
performance of such composition. It is only lately that such
penalties have been imposed on singers and musical performers.
For although the Dramatic Act of 3 and 4 Wm. IV., c. 15, has
been in operation forty-five years, and the Act 5 and 6 Vict.,
c. 45, thirty-five years, yet no idea was entertained that the
singing a song or performing an overture at a concert could be
the subject of an action against the performer for a penalty
unless a written permission was first obtained from the proprietor
thereof. The result will end in singers and performers avoiding
such works as will make them liable to these prosecutions.
TRANSFER OF COPYRIGHT.
Copyright is personal property, and may be conveyed by will
or gift, but the transfer must be in writing.
If a copyright be the property of a female before marriage,
it becomes, as well as her other personalty, the property of her
husband after marriage.
In case of intestacy a copyright devolves by operation of law
upon the executors or administrators, who, as such, possess all
the rights that the original owner enjoyed.
107
To transfer a copyright from an author to any other person
there must be a written memorandum, but that memorandum
need not be a lengthy document. The House of Lords ruled
in the case of Kyle v. Jefferys, that a simple receipt upon a
penny stamp, with these words, viz.: "Received of Mr. Jefferys
the sum of two guineas for the copyright of the words of a song
entitled The Old Arm Chair,' written by me, Eliza Cook,"
was as good an assignment as need be. (21 Scotch Sess. Ca.,
N.S., 8; 18 Scotch Sess., N.S., 906.) The general assignment
of a copyright is usually somewhat similar to the following:
I, A. B. (name in full) of (place of residence) in consideration
of receiving the sum of (here state the amount) paid to me this
day by C. D. (name in full) of (address in full) hereby assign
all my copyright and interest to the said C. D., of and in a
work entitled (here name the work in full), written (or composed)
by me (with the right of performing or representing the same).
As witness my hand this
day of
A. B.
If in the purchase of a work it is desired to have the
right of performance, as well as the copyright, it should be so
stated on the memorandum of assignment, adding the words
"with the right of performing or representing the same."
When an author sells his copyright, he should be careful to
read the document on which he makes his assignment, that he
may clearly understand the terms on which he disposes of it.
An author may license his work to be published for any portion
of the forty-two years given by the present Act, if it be so agreed
upon between the author and the publisher, and after the ex-
piration of such licence the copyright shall return to the author.
In case of there being any number of copies not sold during the
term of the licence to publish, the author may stipulate in his
agreement that such unsold copies shall be offered to him at
the cost of printing and paper, with a small per-centage beyond
their cost, if so agreed between him and his publisher; if not,
the publisher will be entitled to sell the remaining copies for his
own benefit.
108
CHAPTER XIX.
ON WHAT AMOUNTS TO A PIRACY.
By the French law a piracy is treated as a worse crime than
that of entering a neighbour's house and stealing his goods, and
is very summarily dealt with.
1. By the English law it has been decided that the taking
another man's title, by which that man is injured in the sale of
his work, is a piracy. It is considered that the title of a work
is a kind of trade mark which is used to distinguish his work
from others, and which no other person can use without
damaging his property.
2. A Scotch judge has said :-A person might as well steal
books as appropriate their contents and transcribe them into
his own publication, (Lord McKenzie, in Walford v. Johnstone,
20 Sess. Cas., 120.)
3. The case and dicta on this point seem to warrant the con-
clusion that any unauthorised use of a copyright in a later
publication is an infringement of the earlier, unless the use in-
volves a fair amount of thought and judgment.
4. In allusion to a literary copyright work then before him,
Lord Eldon said that it was equally competent to any other
person to set about a similar work bona fide his own (Hogg v.
Kirby, 8 Ves., 222).
5. Again, in Longman v. Winchester, Lord Eldon states the
question before him, "whether it is not perfectly clear that in
a vast proportion of the work of these defendants, no other
labour has been applied than copying the plaintiff's work. To the
extent, therefore, in which the defendant's publication has been
supplied from the other work, the injunction must go; but I
have said nothing that has a tendency to prevent any person
from giving to the public a work of this kind, if it be the fruit
of original labours, but if it is a mere copy of an original work
109
this Court will interpose against that invasion of copyright."
(16 Ves., 269.)
6. Sir R. Kindersley, V.C., has defined unfair use cf an
original work to be the extraction of its vital part. (Murray v.
Bogue, Drew, 369.)
7. Lord Cottenham has said, "When it comes to a question
of quantity it must be very vague: one writer may take all the
vital part of another's book, though it might be a small propor-
tion of the book in quantity; it is not only quantity but value.
that is always looked to. It is useless to refer to any case as to
quantity." (Bramwell v. Halcomb, 3 M. & Cr. 738.)
8. Lord Jefferys (in Alexander v. McKenzie) said, "If it is
quite plain that the similarity of the substance of a second
work is not a mere coincidence, which is the result of similar
observation, but if the second work is substantially a transcrip-
tion of the first, with merely colourable alterations, then there
is an undoubted infringement of the copyright in the first work,
and the alterations only make the case worse, as they indicate
that the party has resorted to a device like that used in stolen
goods, of altering the marks on them to prevent identification.”
(9 Sess. Cas., N.S., 758.)
9. Lord Erskine remarked (in Carey v. Kearsley, 4 Esp., 168),
"In short, to borrow the language of J. Story, we must, in de-
ciding questions of this sort, look to the nature and objects of
the selections made, the quantity and value of the material used,
and the degree in which the use may prejudice the sale or
diminish the profits, or supersede the objects of the orginal
work."
10. Wood, V.C. (now Lord Hatherley, C.) said (in Jarrold
v. Houlston, 3 K. & J., 716), "If, knowing that a person, whose
work is protected by copyright, has with considerable labour
compiled a work from various sources, in themselves not
original, but which he has digested and arranged, you being
minded to compile a work of a like description, instead of
taking the pains of searching into all the common sources and
obtaining your subject matter from them, avail yourself of the
labour of your predecessor, adopt his arrangements, or adopt
them with a slight degree of colourable variation, and thus save
110
yourself the pains and labour by availing yourself of the pains
and labour which he has employed, that I take to be an ille-
gitimate use."
11. Copyright may also be infringed by the importation for
sale or hire, in any part of the British Dominions, of pirated
copies printed abroad. This is now prohibited by statute, under a
penalty of £10 for every offence, and double the value of every
copy imported, besides the forfeiture of such copy. (See 5 & 6
Vic., c. 45, sec. 17.)
12. Piracy is the infringement of copyright. It would not
be easy, perhaps, to give any other definition of piracy which
would apply to the infringements of property in all the different
subjects in which our law now confers a copyright; but the
leading and distinguishing features of piracy is, that it repro-
duces the pirated work in such a manner as to interfere with
the profit and enjoyment which the proprietor derives from it.
13. "It is enough," said Lord Ellenborough (in Roworth v.
Wilks, 1 Camp. 98), "that the publication complained of is in
substance a copy, whereby a work vested in another is pre-
judiced." James, V.C. (in Bramwell v. Halcomb, 3 M. & Cr.,
738), says, "The plaintiff has a right to say this, that no one
is permitted, whether with or without acknowledgment, to take
a material and substantial portion of his work for the purpose
of making or improving a rival publication:"
AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS.
In entering into agreements respecting the sale of copyright,
care should be taken to make the provisions so clear that dis-
putes may not arise from want of a proper understanding of
what is intended by the parties to be conveyed, as decisions
have been given by the judges which bore on the face of them
hardships, in consequence of the loose manner in which agree-
ments had been drawn up, which have sometimes led to the
disallowance of both costs and damages.
An agreement between an author and a publisher that the
latter should publish at his own risk and expense a work be-
longing to an author, on terms of an equal division of the profits
111
after all expenses had been paid, may be regarded in the double
light of a licence and a partnership—a licence for the publica-
tion of the work, and then a joint adventure between the author
and the publisher in copies so published. The publisher cannot
be considered in such a case as merely the agent of the author,
as a mere agent never embarks in the risk of the undertaking.
(Stevens v. Benning, 6 D. M. & G., 231; Reade v. Bentley,
4 R. & J., 663.)
If a person contracts to supply another with a composition
in such a form as to enable the latter to publish it as his own,
a Court of Equity will not restrain the publication of the MS.
in an altered or mutilated form. (Cox v. Cox, 11 Hare, 118.)
If a publisher puts forth an inaccurate edition of an au-
thor's work, purporting to be executed by him (the author),
the author may maintain an action against the publisher for
injury to his reputation, even where the publisher is owner of
the copyright. (Archbold v. Sweet, 1. M. & Rob., 162.)
A publisher agreeing to publish a work on certain conditions
must fulfil those conditions, and has no right after publishing
such work to republish any portion thereof to the detriment of
the author's work without the consent of the author, unless it
is so stated in the agreement.
If it is sought to put an end to an agreement to share the
profits of publication between an author and a publisher, a
difficulty may sometimes arise in the choice of the time for
making the requisite application. If the author seeks to de-
termine the contract, and to prevent the publication of any
subsequent edition by the publisher, he must take steps for the
purpose before any additional expense is incurred by the pub-
lisher in respect of such subsequent edition. If expense has
been incurred before notice is given, the publisher has a right to
be indemnified for it by the profits on the sale; but where no
expense has been incurred in respect thereof, the author has a
right to determine the joint undertaking and to prevent fur-
ther publication of his work, even though the publisher has
stereotyped the work previous to the publication of the last
published edition (4 R. & J., 656.)
112
If a proprietor of a copyright prints a number of copies of a
work, and afterwards sells the plates from which the work is
printed, and with the plates he sells some of the copies by
auction, he is not bound to let the purchaser have any more
than those sold with the plates, but may reserve copies for sale
afterwards, unless there is some stipulation to the contrary in
the conditions of sale (Taylor v. Pillow, L. Rep., 7 Eq., 418.)
It has been decided by the L. C. J. Cockburn, that a piano-
forte score of an opera is an independent musical composition,
separate from and distinct from the full score. It is incorrect
to register such pianoforte score as the composition of the
original composer. It must, therefore, be registered under the
name of the arranger as well as the composer; to legally claim
copyright in it. (Wood v. Boosey L. Rep., 3 Q. B., 233.) Not
that it is believed this decision will be followed in any future
case of the kind. It is quite a mistake to call the arranger of
an opera the composer thereof.
CHAPTER XX.
AN ACT TO ENABLE HER MAJESTY TO CARRY INTO EFFECT
A CONVENTION WITH FRANCE ON THE SUBJECT OF
COPYRIGHT, &c.—(15 & 16 Vic., c. 12.)
Whereas an Act was passed in the seventh year of the reign
of Her present Majesty, intituled "An Act to amend the Law
relating to International Copyright," hereinafter called "The
International Copyright Act:" And whereas a convention has
lately been concluded between Her Majesty and the French
Republic, for extending in each country the enjoyment of copy-
right in works of literature and the fine arts first published in
the other, and for certain reductions of duties now levied on
books, prints, and musical works published in France: And
whereas certain of the stipulations on the part of Her Majesty
contained in the said treaty require the authority of Parliament:
And whereas it is expedient that such authority should be given,
and that Her Majesty should be enabled to make similar stipu-
113
lations in any treaty on the subject of copyright which may
hereafter be concluded with any foreign power: Be it enacted
by the Queen's most excellent Majesty, by and with the advice
and consent of the Lords spiritual and temporal, and Commons,
in this present Parliament assembled, and by the authority of
the same, as follows:
1. The eighteenth section of the said Act of the seventh
year of Her present Majesty, chapter twelve, shall be repealed,
so far as the same is inconsistent with the provisions hereinafter
contained.
2. Her Majesty may, by Order in Council, direct that the
authors of books which are, after a future time, to be specified
in such order, published in any foreign country, to be named in
such order, their executors, administrators, and assigns, shall,
subject to the provisions hereinafter contained or referred to,
be empowered to prevent the publication in the British
Dominions of any translations of such books not authorised by
them, for such time as may be specified in such order, not ex-
tending beyond the expiration of five years from the time at
which the authorised translations of such books hereinafter
mentioned are respectively first published, and in the case
of books published in parts, not extending as to each part
beyond the expiration of five years from the time at which
the authorised translation of such part is first published.
3. Subject to any provisions or qualifications contained in
such order, and to the provisions herein contained or referred
to, the laws and enactments for the time being in force for the
purpose of preventing the infringement of copyright in books
published in the British Dominions shall be applied for the
purpose of preventing the publication of translations of the
books to which such order extends which are not sanctioned by
the authors of such books, except only such parts of the said
enactment as relate to the delivery of copies of books for the
use of the British Museum, and for the use of the other libraries
therein referred to.
4. Her Majesty may, by Order in Council, direct that authors
of dramatic pieces which are, after a future time, to be specified
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in such order, first publicly represented in any foreign country,
to be named in such order, their executors, administrators, and
assigns, shall, subject to the provisions hereinafter mentioned
or referred to, be empowered to prevent the representation in
the British Dominions of any translation of such dramatic
pieces not authorised by them, for such time as may be speci-
fied in such order, not extending beyond the expiration of five
years from the time at which the authorised translations of
such dramatic pieces hereinafter mentioned are first published
or publicly represented.
5. Subject to any provisions or qualifications contained in
such last-mentioned order, and to the provisions hereinafter
contained or referred to, the laws and enactments for the time
being in force for ensuring to the author of any dramatic piece
first publicly represented in the British Dominions the sole
liberty of representing the same shall be applied for the pur-
pose of preventing the representation of any translations of
the dramatic pieces to which such last-mentioned order extends
which are not sanctioned by the authors thereof.
6. Nothing herein contained shall be so construed as to
prevent fair imitations or adaptations to the English stage of
any dramatic piece or musical composition published in any
foreign country.
7. Notwithstanding anything in the said International
Copyright Act or in this Act contained, any article of political
discussion which has been published in any newspaper or
periodical in a foreign country may, if the source from which
the same is taken be acknowledged, be republished or translated
in any newspaper or periodical in this country; and any
article relating to any other subject which has been so published
as aforesaid may, if the source from which the same is taken
be acknowledged, be republished or translated in like manner,
unless the author has signified his intention of preserving the
copyright therein, and the right of translating the same,
in some conspicuous part of the newspaper or periodical in
which the same was first published, in which case the same
shall, without the formalities required by the next following
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115
section, receive the same protection as is by virtue of the
International Copyright Act or this Act extended to books.
8. No author, or his executors, administrators, or assigns,
shall be entitled to the benefit of this Act, or of any order in
Council issued in pursuance thereof, in request of the trans-
lation of any book or dramatic piece, if the following requisi-
tions are not complied with (that is to say) :-
1. The original work from which the translation is to be
made must be registered and a copy thereof deposited in
the United Kingdom in the manner required for original
works by the said International Copyright Act, within
three calender months of its first publication in the
foreign country:
2. The author must notify on the title-page of the original
work, or if it is published in parts on the title-page of
the first part, or if there is no title-page on some con-
spicuous part of the work, that it is his intention to
reserve the right of translating it:
3. The translation sanctioned by the author, or a part there-
of, must be published either in the country mentioned
in the Order in Council by virtue of which it is to be
protected or in the British Dominions, not later than one
year after the registration and deposit in the United
Kingdom of the original work, and the whole of such
translation must be published within three years of such
registration and deposit:
4. Such translation must be registered and a copy thereof
deposited in the United Kingdom within a time to be
mentioned in that behalf in the order by which it is pro-
tected, and in the manner provided by the said Interna-
tional Copyright Act for the registration and deposit of
original works:
5. In the case of books published in parts, each part of the
original work must be registered and deposited in this
country in the manner required by the said international
copyright within three months after the first publication
thereof in the foreign country:
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116
6. In the case of dramatic pieces, the translation sanctioned
by the author must be published within three calendar
months of the registration of the original work:
7. The above requisitions shall apply to articles originally
published in newspapers or periodicals, if the same be
afterwards published in a separate form, but shall not
apply to such articles as originally published.
9. All copies of any works of literature or art wherein there
is any subsisting copyright by virtue of the International Copy-
right Act and this Act, or of any Order in Council made in
pursuance of such Acts or either of them, and which are printed,
reprinted, or made in any foreign country except that in which
such works shall be first published, and all unauthorised trans-
lations of any book or dramatic piece the publication or public
representation in the British Dominions of translations whereof
not authorised as in this Act mentioned shall for the time being
be prevented under any Order in Council made in pursuance of
this Act, are hereby absolutely prohibited to be imported into
any part of the British Dominions, except by or with the consent
of the registered proprietor of the copyright of such work or of
such book or piece, or his agent authorised in writing; and the
provision of the Act of the sixth year of her Majesty, “to
amend the Law of Copyright," for the forfeiture, seizure, and
destruction of any printed book first published in the United
Kingdom wherein there shall be copyright, and reprinted in
any country out of the British Dominions and imported into
any part of the British Dominions by any person not being
the proprietor of the copyright or a person authorised by
such proprietor, shall extend and be applicable to all copies of
any works of literature and art, and to all translations the im-
portation whereof into any part of the British Dominions is
prohibited under this Act.
10. The provisions hereinbefore contained shall be incorpo-
rated with the International Copyright Act, and shall be read
and construed therewith as one Act.
11. And whereas Her Majesty has already, by Order in
Council under the said International Copyright Act, giving
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117
effect to certain stipulations contained in the said convention
with the French Republic; and it is expedient that the re-
mainder of the stipulations on the part of Her Majesty in the
said convention contained should take effect from the passing
of this Act without any further Order in Council; during the
continuance of the said convention, and so long as the Order
in Council already made under the said International Copyright
Act remains in force, the provisions hereinbefore contained
shall apply to the said convention, and to translations of books
and dramatic pieces which are, after the passing of this Act,
published or represented in France, in the same manner as if
Her Majesty had issued her Order in Council in pursuance of
this Act for giving effect to such convention, and had therein
directed that such translations should be protected as herein-
before mentioned for a period of five years from the date of the
first publication or public representation thereof respectively,
and as if a period of three months from the publication of such
translation were the time mentioned in such Order as the time
• within which the same must be registered and a copy thereof
deposited in the United Kingdom.
12. And whereas an Act was passed in the tenth year of
Her present Majesty, intituled "An Act to amend an Act of
the seventh and eight years of Her present Majesty, for
reducing, under certain circumstances, the duties payable upon
Books and Engravings:" And whereas by the said convention
with the French Republic it was stipulated that the duties on
books, prints, and drawings published in the territories of the
French Republic should be reduced to the amounts specified in
the schedule to the said Act of the tenth year of Her present
Majesty, chapter fifty-eight: And whereas Her Majesty has,
in pursuance of the said convention, and in exercise of the
powers given by the said Act, by Order in Council declared
that such duties shall be reduced accordingly: And whereas
by the said convention it was further stipulated that the rates
of duty should not be raised during the continuance of the said
convention; and that if during the continuance of the said
convention any reduction of those rates should be made in
118
favour of books, prints, or drawings published in any other
country, such reduction shall be at the same time extended to
similar articles published in France: And whereas doubts are
entertained whether such last-mentioned stipulations can be
carried into effect without the authority of Parliament: Be it
enacted, That the said rates of duty so reduced as aforesaid
shall not be raised during the continuance of the said conven-
tion; and that if during the continuance of the said conven
tion any further reduction of such rates is made in favour of
books, prints, or drawings published in any other foreign
country, Her Majesty may, by Order in Council, declare that
such reduction shall be extended to similar articles published
in France: such order to be made and published in the same
manner and to be subject to the same provisions as orders
made in pursuance of the said Act of the tenth year of Her
present Majesty, chapter fifty-eight.
13. And whereas doubts have arisen as to the construction
of the schedule of the Act of the tenth year of Her present
Majesty, chapter fifty-eight :
It is hereby declared, That for the purposes of the said Act
every work published in the country of export, of which part
has been originally produced in the United Kingdom, shall be
deemed to be and be subject to the duty payable on "Works
originally produced in the United Kingdom, and republished in
the country of export," although it contains also original matter
not produced in the United Kingdom, unless it shall be proved
to the satisfaction of the Commissioners of Her Majesty's Customs
by the importer, consignee, or other person entering the same,
that such original matter is at least equal to the part of the work
produced in the United Kingdom, in which case the work shall
be subject only to the duty on " Works not originally produced
in the United Kingdom."
14. And whereas by the four several Acts of Parliament
following: (that is to say,) an Act of the eighth year of the
reign of King George the Second, chapter thirteen; an Act of
the seventh year of the reign of King George the Third, chapter
thirty-eight: an Act of the seventeenth year of the reign of King
119
George the Third, chapter fifty-seven; and an Act of the seventh
year of King William the Fourth, chapter fifty-nine, provision
is made for securing to every person who invents, or designs
engraves, etches, or works in mezzotinto or chiara-oscuro, or
from his own work, design, or invention, causes or procures to
be designed, engraved, etched, or worked in mezzotinto or
chiaro-oscuro, any historical print or prints, or any print or
prints of any portrait, conversation, landscape, or architecture,
map, chart, or plan, or any other print or prints whatsoever,
and to every person who engraves, etches, or work in mezzotinto
or chiaro-oscuro, or causes to be engraved, etched, or worked any
print taken from any picture, drawing, model, or sculpture,
notwithstanding such print has not been graven or drawn from
his own original design, certain copyrights therein defined: And
whereas doubts are entertained whether the provisions of the said
Acts extend to lithographs and certain other impressions, and it
is expedient to remove such doubts :
It is hereby declared, That the provisions of the said Acts
are intended to include prints taken by lithography, or any
other mechanical process by which prints or impressions of
drawings or designs are capable of being multiplied indefinitely,
and the said Acts shall be construed accordingly.
CHAPTER XXI.
STATUTORY REQUISITES IN ORDER TO SECURE
INTERNATIONAL COPYRIGHT.
To obtain copyright in the British Dominions of any book,
dramatic or musical composition, first produced in a foreign.
country with which a copyright convention has been established
with Great Britain, it is necessary that such book, &c., shall be
entered at Stationers' Hall within three months of its first
production or publication in the foreign country where it shall
have been originally produced; and that one copy of such book,
dramatic or musical composition, shall be delivered to the
120
registering officer at Stationers' Hall; but it is not stated
within what time such delivery should be made. The registrar
of the said Company to whom such copy is delivered is to give
a receipt in writing for the same, and shall, within one month
after receiving it, deposit the same at the British Museum. In
the registration of such book, dramatic or musical composition,
it is necessary that the title (that is, the full title) thereof, the
name and place of abode of the author or composer thereof, the
name and place of abode of the proprietor of the copyright
thereof, and the time and place of the first publication, repre-
sentation, or performance thereof should be all stated on the
document presented for registration; and it would be well to
present the copy of the work at the same time, so that the
registrar may compare the work with the document to be
registered; as it has been decided in the case of Wood v.
Boosey (7 B. and S., L. Rep., 2 Q.B.), and affirmed by the
Exchequer Chamber (9 B. and S., 175), that an arrangement of
a pianoforte score of an opera composed by Nicolai, but arranged
by Brissler, of Berlin, should not have been entered under the
composer's name, but under that of the arranger, to secure a
copyright. To avoid any such difficulty in future, if the piano-
forte-score of an opera should have on the title-page the name of
the arranger, as well as that of the composer, let both be entered.
With respect to translations, section 6 of 15 Vic., c. 12,
has been repealed, and a short Act (38 Vic., c. 12) has been
passed to provide for the extension of the period by which
authorised translation may now be secured for five years after
such translation has been published or publicly represented, See
also sec. 11 of 15 Vic., c. 12, where it states that French trans-
lations are to be protected without any further Order in Council.
The act of 15 Vic., c. 12 applies also to copyright in prints
taken by lithography, or by any other mechanical process by
which prints or impresssions of drawings or designs are capable
of being multiplied.
Reciprocal protection is given to works first published in the
British Dominions if entered after the same manner in the
offices of foreign Governments appointed by them.
121
But if the right of translation is reserved, it must be so
stated on a conspicuous part of the work to which protection is
required in any foreign country where international convention
is mutual. In the case of Wood v. Boosey, it appears some-
what anomalous that the courts should have decided that the
omission of Brissler's name in the entry should have invalidated
the copyright, when the re-entry of the work-as in the case of
Low v. Routledge-would have set the matter right, if (as by the
14th sec. of 5 and 6 Vic., c. 45) the judges have power to order
that an entry may be varied upon application.-(See sec. 13.)
CHAPTER XXII.
AN ACT TO AMEND THE LAW RELATING TO INTERNATIONAL
COPYRIGHT.-(38 Vic., c. 12.)
Whereas by an Act passed in the fifteenth year of the reign
of Her present Majesty, chapter twelve, intituled “An Act to
enable Her Majesty to carry into effect a convention with
France on the subject of copyright; to extend and explain the
International Copyright Acts; and to explain the Acts relating
to copyright in engravings," it is enacted, that "Her Majesty
may, by Order in Council, direct that authors of dramatic
pieces which are, after a future time, to be specified in such
order, first publicly represented in any foreign country, to be
named in such order, their executors, administrators, and
assigns, shall, subject to the provisions thereinafter mentioned
or referred to, be empowered to prevent the representation in
the British Dominions of any translation of such dramatic
pieces not authorised by them, for such time as may be specified
in such order, not extending beyond the expiration of five
years from the time at which the authorised translations of
such dramatic pieces are first published and publicly repre-
sented:"
And whereas by the same Act it is further enacted, "that,
subject to any provisions or qualifications contained in such
order, and to the provisions in the said Act contained or referred
122
to, the laws and enactments for the time being in force for
ensuring to the author of any dramatic piece first publicly repre-
sented in the British Dominions the sole liberty of representing
the same shall be applied for the purpose of preventing the
representation of any translations of the dramatic pieces to
which such order extends, which are not sanctioned by the
authors thereof :"
And whereas by the sixth section of the said Act it is
provided, that "nothing in the said Act contained shall be so
construed as to prevent fair imitations or adaptations to the
English stage of any dramatic piece or musical composition
published in any foreign country:"
And whereas it is expedient to alter or amend the last-
mentioned provision under certain circumstances:
Be it therefore enacted by the Queen's most excellent
Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present Parlia-
ment assembled, and by the authority of the same, as follows;
viz.,
1. In any case in which, by virtue of the enactments herein-
before recited, any Order in Council has been or may hereafter
be made for the purpose of extending protection to the transla-
tions of dramatic pieces first publicly represented in any foreign
country, it shall be lawful for Her Majesty by Order in
Council to direct that the sixth section of the said Act shall
not apply to the dramatic pieces to which protection is so
extended; and thereupon the said recited Act shall take effect
with respect to such dramatic pieces and to the translations
thereof as if the said sixth section of the said Act were hereby
repealed.
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CHAPTER XXII.
AN ACT FOR AMENDING THE LAW RELATING TO COPY-
RIGHT IN WORKS OF THE FINE ARTS, AND FOR
REPRESSING THE COMMISSION OF FRAUD IN THE
PRODUCTION AND SALE OF SUCH WORKS.—(25 & 26 Vic.,
c. 68.)
Whereas by law, as now established, the author of paintings,
drawings, and photographs have no copyright in such their
works, and it is expedient that the law should in that respect
be amended: Be it therefore enacted by the Queen's most
excellent Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as
follows:
1. The author, being a British subject or resident within the
Dominions of the Crown, of every original painting, drawing,
and photograph which shall be or shall have been made either
in the British Dominions or elsewhere, and which shall not
have been sold or disposed of before the commencement of this
Act, and his assigns, shall have the sole and exclusive right of
copying, engraving, reproducing, and multiplying such painting
or drawing, and the design thereof, or such photograph, and the
negative thereof, by any means and of any size, for the term of
the natural life of such author and seven years after his death;
provided that when any painting or drawing, or the negative of
any photograph, shall for the first time after the passing of this
Act be sold or disposed of, or shall be made or executed for or on
behalf of any other person for a good or a valuable consideration,
the person so selling or disposing of or making or executing the
same, shall not retain the copyright thereof, unless it be ex-
pressly reserved to him by agreement in writing, signed, at or
before the time of such sale or disposition, by the vendee or
assignee of such painting or drawing, or of such negative of a
124
photograph, or by the person for or on whose behalf the same
shall be so made or executed, but the copyright shall belong to
the vendee or assignee of such painting or drawing, or of such
negative of a photograph, or to the person for or on whose
behalf the same shall have been made or executed; nor shall
the vendee or assignee thereof be entitled to any such copyright,
unless, at or before the time of such sale or disposition, an
agreement in writing, signed by the person so selling or disposing
of the same, or by his agent duly authorised, shall have been made
to that effect.
2. Nothing herein contained shall prejudice the right of any
person to copy or use any work in which there shall be no
copyright, or to represent any scene or object, notwithstanding
that there may be copyright in some representation of such
scene or object.
3. All copyright under this Act shall be deemed personal
or moveable estate, and shall be assignable at law, and every
assignment thereof, and every licence to use or copy by any
means or process the design or work which shall be the subject
of such copyright, shall be made by some note or memorandum
in writing, to be signed by the proprietor of the copyright, or
by his agent appointed for that purpose in writing,
4. There shall be kept at the hall of the Stationers' Com-
pany, by the officer appointed by the said company for the
purposes of the Act passed in the sixth year of Her present
Majesty, intituled "An Act to amend the Law of Copyright,” a
book or books, entitled "The Register of Proprietors of Copy-
right in Paintings, Drawings, and Photographs," wherein shall be
entered a memorandum of every copyright to which any person
shall be entitled under this Act, and also of every subsequent
assignment of any such copyright; and such memorandum shall
contain a statement of the date of such agreement or assignment
and of the names of the parties thereto, and of the name and
place of abode of the person in whom such copyright shall be
vested by virtue thereof, and of the name and place of abode of
the author of the work in which there shall be such coypright,
together with a short description of the nature and subject of
125
such work, and in addition thereto, if the person registering
shall so desire, a sketch, outline, or photograph of the said work;
and no proprietor of any such copyright shall be entitled to the
benefit of this Act until such registration, and no action shall be
sustainable nor any penalty be recoverable in respect of anything
done before registration.
5. The several enactments in the said Act of the sixth year
of Her present Majesty contained, with relation to keeping the
register book thereby required, and the inspection thereof, the
searches therein, and the delivery of certified and stamped
copies thereof, the reception of such copies in evidence, the
making of false entries in the said book, and the production in
evidence of papers falsely purporting to be copies of entries in
the said book, the application to the courts and judges by per-
sons aggrieved by entries in the said book, and the expunging
and varying such entries, shall apply to the book or books to be
kept by virtue of this Act, and to the entries and assignments
of copyright and proprietorship therein under this Act, in such
and the same manner as if such enactments were here expressly
enacted in relation thereto, save and except that the forms of
entry prescribed by the said Act of the sixth year of Her pre-
sent Majesty may be varied to meet the circumstances of the
case, and that the sum to be demanded by the officer of the said
Company of Stationers for making any entry required by this
Act shall be one shilling only.
6. If the author of any painting, drawing, or photograph in
which there shall be subsisting copyright, after having sold or
disposed of such copyright, or if any other person, not being the
proprietor for the time being of copyright in any painting,
drawing, or photograph, shall, without the consent of such pro-
prietor, repeat, copy, colourably imitate, or otherwise multiply
for sale, hire, exhibition, or distribution, or cause or procure to
be repeated, copied, colourably imitated, or otherwise multiplied
for sale, hire, exhibition, or distribution, any such work or the
design thereof, or, knowing that any such repetition, copy, or
other imitation has been unlawfully made, shall import into any
part of the United Kingdom, or sell, publish, let to hire, exhibit,
126
or distribute, or offer for sale, hire, exhibition, or distribution,
or cause or procure to be imported, sold, published, let to hire,
distributed, or offered for sale, hire, exhibition, or distribution,
any repetition, copy, or imitation of the said work, or of the
design thereof, made without such consent as aforesaid, such
person for every such offence shall forfeit to the proprietor of the
copyright for the time being a sum not exceeding ten pounds;
and all such repetitions, copies, and imitations made without
such consent as aforesaid, and all negatives of photographs made
for the purpose of obtaining such copies, shall be forfeited to
the proprietor of the copyright.
7. No person shall do or cause to be done any or either of
the following acts: that is to say
First, no person shall fraudulently sign or otherwise affix, or
fraudulently cause to be signed or otherwise affixed, to or
upon any painting, drawing, or photograph, or the negative
thereof, any name, initials, or monogram :
Secondly, no person shall fraudulently sell, publish, exhibit,
or dispose of, or offer for sale, exhibition, or distribution,
any painting, drawing, or photograph, or negative of a
photograph, having thereon the name, initials, or monogram
of a person who did not execute or make such work:
Thirdly, no person shall fraudulently utter, dispose of, or put
off, or cause to be uttered or disposed of, any copy or
colourable imitation of any painting, drawing, or photo-
graph, or negative of a photograph, whether there shall
be subsisting copyright therein or not, as having been
made or executed by the author or maker of the original
work from which such copy or imitation shall have been
taken :
Fourthly, where the author or maker of any painting, draw-
ing, or photograph, or negative of a photograph, made either
before or after the passing of this Act, shall have sold or
otherwise parted with the possession of such work, if any
alteration shall afterwards be made therein by any other
person, by addition or otherwise, no person shall be at
liberty, during the life of the author or maker of such
127
work, without his consent, to make or knowingly to sell or
publish or offer for sale, such work or any copies of such
work so altered as aforesaid, or of any part thereof, as or
for the unaltered work of such author or maker :
Every offender under this section shall, upon conviction, for-
feit to the person aggrieved a sum not exceeding ten pounds,
or not exceeding double the full price, if any, at which all such
copies, engravings, imitations, or altered works shall have been.
sold or offered for sale; and all such copies, engravings, imita-
tions, or altered works shall be forfeited to the person, or the
assigns or legal representatives of the person whose name,
initials, or monogram shall be so fraudulently signed or affixed
thereto, or to whom such spurious or altered work shall be so
fraudulently or falsely ascribed as aforesaid: Provided always,
that the penalties imposed by this section shall not be incurred
unless the person whose name, initials, or monogram shall be so
fraudulently signed or affixed, or to whom such spurious or
altered work shall be so fraudulently or falsely ascribed as
aforesaid, shall have been living at or within twenty years next
before the time when the offence may have been committed.
8. All pecuniary penalties which shall be incurred, and
all such unlawful copies, imitations, and all other effects and
things as shall have been forfeited by offenders, pursuant to this
Act, and pursuant to any Act for the protection of copyright
engravings, may be recovered by the person hereinbefore and
in any such Act as aforesaid empowered to recover the same
respectively, and hereinafter called the complaint or the
complainer, as follows:
In England and Ireland, either by action against the party
offending, or by summary proceeding before any two
justices having jurisdiction where the party offending
resides :
In Scotland, by action before the Court of Session in ordinary
form, or by summary action before the sheriff of the county
where the offence may be committed or the offender resides,
who, upon proof of the offence or offences, either by confession
of the party offending, or by the oath or affirmation of one
128
or more credible witnesses, shall convict the offender, and
find him liable to the penalty or penalties aforesaid, as also
in expenses; and it shall be lawful for the sheriff, in pro-
nouncing such judgment for the penalty or penalties and
costs, to insert in such judgment a warrant, in the event
of such penalty or penalties and costs not being paid, to levy
and recover the amount of the same by poinding: Provided
always, that it shall be lawful to the sheriff, in the event of
his dismissing the action and assoilzieing the defender, to
find the complainer liable in expenses, and any judgment
so to be pronounced by the sheriff, in such summary appli-
cation shall be final and conclusive, and not subject to
review by advocation, suspension, reduction, or otherwise.
9. In any action in any of Her Majesty's superior Courts
of Record at Westminster and in Dublin for the infringement
of any such copyright as aforesaid, it shall be lawful for the
court in which such action is pending, if the court be then
sitting, or if the court be not sitting then for a judge of such
court, on the application of the plaintiff or defendant respectively
to make such order for an injunction, inspection, or account, and
to give such direction respecting such action, injunction, inspec-
tion, and account, and the proceeeings therein respectively, as
to such court.or judge may seem fit.
10. All repetitions, copies, or imitations of paintings, draw-
ings, or photographs, wherein or in the design whereof there
shall be subsisting copyright under this Act, and all repetitions,
copies, and imitations of the design of any such painting or
drawing, or of the negative of any such photograph, which, con-
trary to the provisions of this Act, shall have been made in any
foreign state, or in any part of the British Dominions, are
hereby absolutely prohibited to be imported into any part of the
United Kingdom, except by or with the consent of the pro-
prietor of the copyright thereof, or his agent authorised in
writing; and if the proprietor of any such copyright, or his
agent, shall declare that any goods imported are repetitions,
copies, or imitations of any such painting, drawing, or photo-
graph, or of the negative of any such photograph, and so pro-
129
hibited as aforesaid, then such goods may be detained by the
officers of Her Majesty's Customs.
11. If the author of any painting, drawing, or photograph, in
which there shall be subsisting copyright, after having sold or
otherwise disposed of such copyright, or if any other person, not
being the proprietor for the time being of such copyright, shall,
without the consent of such proprietor, repeat, copy, colourably
imitate, or otherwise multiply; or cause or procure to be repeated,
copied, colourably imitated, or otherwise multiplied for sale,
hire, exhibition, or distribution, any such work or the design
thereof, or the negative of any such photograph, or shall import
or cause to be imported into any part of the United Kingdom,
or sell, publish, let to hire, exhibit, or distribute, or offer for
sale, hire, exhibition, or distribution, or cause or procure to be
sold, published, let to hire, exhibited, or distributed, or offered
for sale, hire, exhibition, or distribution, any repetition, copy, or
imitation of such work, or the design thereof, or the negative of
any such photograph, made without such consent as aforesaid,
then every such proprietor, in addition to the remedies hereby
given for the recovery of any such penalties, and forfeiture of
any such things as aforesaid, may recover damages by and in a
special action on the case, to be brought against the person so
offending, and may in such action recover and enforce the
delivery to him of all unlawful repetitions, copies, and imitations,
and negatives of photographs, or may recover damages for the
retention or conversion thereof: Provided that nothing herein
contained, nor any proceeding, conviction, or judgment, for any
act hereby forbidden, shall affect any remedy which any person
aggrieved by such act may be entitled to either at law or in
equity.
12. This Act shall be considered as including the provisions
of the Act passed in the session of Parliament held in the
seventh and eighth years of Her present Majesty, intituled
“An Act to amend the Law relating to International Copyright,"
in the same manner as if such provisions were part of this
Act.
K
130
STATUTORY REQUIREMENTS AND PENALTIES OF
ACT 25 & 26 VIC., c. 68.
Before the passing of this act artists of paintings, drawings,
and photographs had no security in law against copies being
made of such works, and no copyright therein. It was deemed
expedient therefore to protect such works from being copied
without the consent of the proprietors thereof.
Sec. 1 enacts that any person selling or disposing of a
painting, drawing, or negative of a photograph, or executing
such work for a good and valuable consideration shall not retain
the copyright of the same unless it be expressly reserved by
him in writing at or before the time of sale, signed by the
assignee, or by an agent duly authorised by him to enter into
an engagement so to do.*
Sec. 2 enacts that any person may copy or use any work in
which there is no copyright, or may represent any scene or
object, notwithstanding that there may be a copyright in some
representation of such scene.
Sec. 3.-All assignment of, or licences to copy, any copyright
works must be in writing.
Sec. 4.- No person shall have the benefits, or sue for the
penalties of this Act, unless registration be made at Stationers'
Hall before suing.
Sec. 5.-Registration may be made on payment of one shilling.
Sec. 6.-Persons having pirated copies in their possession
for sale or hire are liable to prosecution and penalties.
Sec. 7 enacts that fraudulent signatures or colourable copies,
either by drawing or photography, are subject to prosecution,
and all pirated copies shall be forfeited to the proprietors, with
the negatives of photographs, &c.
Sec. 8.-Actions may be brought for piracies in England,
Ireland, or Scotland.
Sec. 10.-Copies or imitations made in foreign countries
may not be imported into any part of the United Kingdom,
except with the consent of the proprietor.
Sec. 11.-The author may not copy or sell any copies of his
work after he has sold the original, without the consent of the
proprietor.
* An engraver or photographer who engraves a copyright or takes a
photograph therefrom should have a written permission to do so from the
proprietor, or in case of any dispute on the subject, he may lose the reward
of his labour.
INDEX OF CONTENTS.
CHAP. I.-Discovery of Printing First Promoters of Transition from
Printers to Authors-Roman Law (Just. II., i. 33)-Caxton born;
his apprenticeship; how he learnt Printing; where he died-Faques
first Regius Impressor to Henry VII.-Richard III.-Act to encourage
Importation of Books-Henry VIII, c. 25, prohibited their Importa-
tion-Gough, Printer, Stationer, and Author-Wolfe, King's Printer,
Patent for Literary Labour-Restriction on Price of Books-Stationers'
Company Chartered-King's Patent to Palegrave.
CHAP. II.—Origin of Stationers' Company, and some account of Register—
First Book entered-Star Chamber Decree as to Printers - Queen
Elizabeth grants Patents-All Books to be Sanctioned by Privy
Council-Farming Rights-Printers limited to Twenty-Stationers'
Company to search all Printing Offices-Every Book Licensed-Bye-
Laws of Company-Purchase of Premises at Stationers' Hall-Burnt
down in Great Fire-Renewal of Charter-Curious Omission in 7th
Commandment-Refusal of George Wither's Psalms, by Stationers'
Company.
CHAP. III.—Star Chamber Decrees and, Bye-Laws-Star Chamber
Abolished-Attempts to allow Free Tratte in Books-Milton's Speech
thereon-Act 13 & 14 Chas. II. emacts all Books to be Licensed and
Entered-Disputes of Company-Copyright in "Paradise Lost".
Rescript of Lord Mayor-Commemoration of St. Cecilia-Bye-Law
and Forfeits-First Action for Piracy-Monopoly for Printing
Almanacs-Prosecution of Carnan Defeated-Royal Patent of Anne-
Legal Title By Entry-Dispute of King's Patent with Atkyns-—
Licensing Monopoly Renewed.
CHAP. IV.—On Act of Anne-Exaction of Nine Copies of Books for Public
Libraries.
CHAP. V.-Operation of Acts-Application to Repeal "Library Tax”—
Extension of Term of Copyright.
CHAP. VI.—Bill to reduce the "Library Tax "-Petition of Authors for its
Abolition-Prices of Expensive Works-Another Petition, without
effect-Another Bill twelve years after had the desired effect by
Act 6 & 7 Wm. IV.-List of Acts down to 5 & 6 Vic.-Act 15 Vic,, c. 12,
and Act 25 & 26 Vic., c. 68.—Fine Arts.
CHAP. VII.-Act 54 Geo. III., c. 156-Receipt of Beethoven and Case of
Birchall v. Longman-Act 6 & 7 Wm. IV., c. 110 reducing "Library
Tax" from eleven to five Copies-Compensation to the denuded
Libraries-Sir Walter Scott's Attempt to obtain Copyright in Paris-
Arguments against Extension of Copyright-Distinction between
Patent-right and Copyright-Reasons for reserving term for Authors'
Families-Penalties for Non-Eutry at Stationers' Hall.
132
INDEX.
CHAP. VIII.-Observations on Act 5 & 6 Vic., c. 45.
CHAP. IX. Correspondence on the Registry and Right of Search at
Stationers' Hall.
CHAP. X.-Refusal of Clerk to Enter on Day of Publication-Law over-
strained for small Inaccuracy of Entry-Decisions on mere Techni-
calities Alteration of Law much needed-Case of Hutchings & Co.
v. Wood and Planché-Case of Routledge & Co.
CHAP. XI. Variety of Opinions on Copyright-Publishers' "Hacks"-
Contracts of Authors and Publishers Necessity to provide for
Author's Families-Denuded Clause in Talfourd's Bill-Petition of
T. Hood-Conflicting Decisions of Judges.
M
CHAP. XII.—Planché's Recollections-Liberality of Managers and Pub-
lishers Planché applies for Dramatic Rights Obtains the Act
3 & 4 Wm. ÌV., c. 15-Protests against the Common Refusal of
Music Publishers to use Author's Words to Music without payment-
Obtains for Authors Remuneration, and Recognition of such Rights-
Evidence of Value of Words of Songs-Value of Popular Songs and
Operas, &c.
CHAP. XIII.-International Copright Act, 1 & 2 Vic., c. 69—Letter from
Mr. Purday to Mr. Macfie-Settlement of question of Foreign Copy-
right Jefferys v. Boosey-Unsettlement of Question in Lowe v.
Routledge-Further Correspondence on a Convention with America
-Act of 10 & 11 Vic., c. 95.
CHAP. XIV.-Term of Copyright in Various Counties.
CHAP. XV.-Question of Copyright in Foreign Author settled-First
attempt to invest Foreign Author with English Copyright-Murray
and Others paid large sums to American Authors Conflicting
Decisions in Courts-Public Meeting of Authors and Publishers
Extract from Leader in Times-Impudent Advertisement of Harper
& Co.-Gardiner imports Copies of his own Book from America-
Another attempt at Convention with America.
CHAP. XVI.-American ideas on International Copyright from Fortnightly
Review-Leader from Standard, &c.
CHAP. XVII.-Act of 5 & 6 Vic., c. 45.
CHAP. XVIII.—On Statutory Requisites of 5 & 6 Vic., c. 45—Transfer of
Copyright.
· CHAP. XIX.—On What amounts to a Piracy-with Cases.
CHAP. XX.-On Conventions with France and other Countries-15 & 16
Vic., c. 12, with Statutory Requisite for securing Copyright.
CHAP. XXI.—Act £8 Vic., c. 12, to Amend part of foregoing Convention.
CHAP. XXII.—Act to Amend the Law relating to the Fine Arts (25 & 26
Vic., c. 68)—Statutory Requisites to secure Copyright in same.
George Wilson, Printer, 53, Lamb's Conduit Street, W.C.


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