No. II. 8 Anne, c. 19.

Upon this principle the property has been protected in a road book, Carnan v. Bowles, 2 Bro. Ch. 80-Cary v. Longman, 1 East. 358-Cary v. Faden, 5 Vesey, 24;-in Tables of Chronology, Trusler v. Murray, 1 East. 363. n. ;—in maps and charts (depending upon 8 Geo. II. c. 13 post), see 12 Vesey, 274;-an East India calendar, Mathewson v. Stockdale, 12 Vesey, 270-(in that case, Lord Erskine, granting the injunction, said he had compared the books, and found that, in a long list of casualties, removals, and deaths, there was not the least variation, even as to the situation in the pages): so in the case of a court calendar, Lord Eldon, observing, that from the identity of the inaccuracies it was impossible to deny that the one was copied verbatim & literatim from the other-Longman v. Winchester, 16 Vesey, 269. In King v. Reed, 8 Vesey, 223. upon an application for an injunction with respect to tables of interest, the Lord Chancellor directed the plaintiff to bring an action. It falls within my own knowledge, that an action was brought, and the case was, at the trial, referred to arbitration, as to the question of the one work being a copy from the other.

In matters of this description, the fact of copying is made out as in Longman v. Winchester, by an identity of errors. I remember a Nisi Prius case in which the plaintiff was nonsuited, with respect to the tables of interest above alluded to, upon the ground that the errors of calculation pointed out as shewing the identity of the work destroyed, so far as they went, its utility; and that, therefore, for a work having such imperfection, no copyright could be claimed: but this case was never brought before the Court, and was expressly disputed in the second action; and it certainly seems very difficult to conceive, that the property of a long and laborious work should be defeated by a few accidental errors in particular calculations.

In Cary v. Kearsley, 4 Ésp. 168. Lord Ellenborough is reported to have held, that the identity of names in a typographical work was not sufficient to support a count for printing and publishing the plaintiff's work generally, but to have admitted that such evidence might support a count for transcribing particular parts.

[Query if it did not actually appear that the work was not wholly printedfor if the general appearance was the same, a variety of instances in which errors were transcribed might be evidence to satisfy the jury as to cop; ing the whole.]

[22] It is settled in many of the cases, and is fully agreed, that an action is maintainable, not only in respect of the whole of a work, but in respect of the parts of it which have been printed and transcribed—and an action lies for printing the new additions and corrections of an old work.-Cary v. Longman, 1 East, 358— Mason v. Murray, cited ibid.

[23] It is agreed that a fair abridgement of a work is not protected by the statute, but that works colourably shortened are within the statute, and are an evasion of it.Gyles v. Wilcox, 2 Atk. 141. The same doctrines were stated as settled Law in Bell v. Walker, 1 Bro. Ch. 451.

[24] In the before-mentioned case of Cary v. Kearsley, 4 Esp. 168. Lord Ellenborough said, that it is lawful to adopt the works of a cotemporary writer and incorporate them in a new work, provided this be done bona fide and not with a view to steal the original copyright; but in Roworth v. Wilkes, 1 Camb. 94. where 75 out of 118 pages of a work of the plaintiff, on Fencing, had been transcribed by the defendant into the Encyclopedia Londinensis, his Lordship held, that an action was maintainable, stating the question to be, whether the defendant's publication would serve as a substitute for that of the plaintiff. A review, he observed, would not in general serve as a substitute for the work reviewed, and even then, if it communicates the same knowledge with the original work, it is an undeniable violation of literary property. The intention to pirate is not necessary to support the action; it is enough that the publication complained of is in substance a copy whereby a work vested in another is prejudiced.

[25] In Sayre v. Moore, East. 161. n. which was an action upon 17 Geo. III. c. 57. (infra,) for pirating charts, but was treated as depending upon the same principles as questions of copyright, it appeared in evidence, that the defendant had used four charts published by the plaintiff, in making one large map, but that there were very important differences between them much in favour of the defendant's, and the evidence shewed the plaintiff's charts to be founded upon a wrong principle. In his charge to the jury, Lord Mansfield said, "in all these cases," (speaking of cases of copyright,)" the question of fact to come before the jury is whether the alteration be colourable or not? there must be such a similitude as to make it probable and reasonable to suppose that one is a transcript of the other, and nothing more than a transcript. So in the case of different prints; no doubt different men may take engravings from the same picture. The same principle holds with regard

to charts; whoever has it in his intention to publish a chart may take advantage of all prior publications." "You are told, that there are various and very material alterations. The chart of the plaintiff is upon a wrong principle, inapplicable to navigation. The defendant, therefore, has been correcting errors, and not servilely copying. If you think so, you will find for the defendant; if you think it is a mere servile imitation, and pirated from the other, you will find for the plaintiff." And in Mathewson v. Stockdale, 12 Vesey, 275. Lord Eldon said, "I admit, that no man can monopolize such subjects as the English Channel, the Island of St. Domingo, or the events of the world; and every man may take what is useful from the original work, improve, add, and give to the public the whole comprising the original work, with the additions and improvements, and in such a case there is no invasion of any right."

In Butterworth v. Robinson, 5 Vesey, 709. an injunction was granted in the first instance, upon a bill filed, to restrain the selling an abridgement of cases in the courts of law-it being stated, that the work was not a fair abridgement; and that, except in colourably leaving out some parts of the cases, such as the arguments of counsel, it was a verbatim copy of several of the reports of cases in the courts of law, and among them of the Term Reports, of which the plaintiff was proprietor, comprising not a few cases only, but all the cases published in that work-the chronological order of the original work being changed to an alphabetical arrangement, under heads and titles, to give it the appearance of a new work. The Lord Chancellor said, he had looked at one or two cases with which he was well acquainted, and it appeared to him an extremely illiberal publication. No very conclusive inference can be drawn from this ex parte opinion. The case was not brought before the Court again, and in fact, (whether by compromise or otherwise,) the publication went on, and is completed in five volumes, and is an abridgement of all the cases in Courts of Law, from the beginning of the reign of Geo. 3d, to the conclusion of the Term Reports. Such a work, selecting what is material from a large body of reports, and arranging the matter collected so as to render it more commodious for practical reference, whether the arrangement of the titles be alphabetical or systematic, appears to have very much the features of an original work. The motion, in the preceding case, does not seem to dispute the right of selecting passages from books of reports, (including entire judgments,) in treatises upon particular subjects; and I cannot see any material distinction between a liberty to extract all cases respecting bankruptcy, poor laws, insurance, and any other given number of subjects separately, and a liberty to publish a general work embracing the whole of the subjects which have come under legal discussion. In fact, if all works were suppressed, of which a considerable portion consisted of mere transcripts from books of reports, the law libraries would be very much thinned, and would be deprived of several works which are attended with considerable convenience and utility.-See Dodsley v. Kinnersley, Ambler, 403. in which Sir Thomas Clarke, M. Ŕ. refused an injunction for restraining the publishing an abstract of the Prince of Abyssinia in a Magazine. He observed, that no certain line can be drawn to distinguish a fair abridgement, and that every case must depend upon its own circumstances-some stress was laid upon the plaintiff having himself published extracts in the Annual Register.

[26] In Cary v. Faden, 5 Vesey, (being one of the many cases which have been before the Court, respecting Cary's improved Road Book,) Lord Loughborough refused an injunction, seemingly on the ground that a great part of the plaintiff's work was a copy of the preceding work of Patterson, in which (as appears from the case) the copyright had not expired; but from the general tenor of the case, it is clear that a party has, in such cases, a copyright in his own additions, which has indeed been repeatedly decided, with regard to the identical work.

[27] In the before-mentioned case of Cary v. Kearsley, 4 Esp. 168. it seems to have been the opinion of Lord Ellenborough, that the first publisher of a book, the copy of which he obtains by a breach of trust, may maintain an action against a stranger for printing it.

[28] In Walcot v. Walker, 7 Vesey 1. which depended upon an agreement between the parties, Lord Eldon, after referring to some opinion of Lord Chief 'Justice Eyre not in print, said "if the doctrine of the Chief Justice was right, and he thought it was, that publications might be of such a nature that the author could maintain no action at law, it was not the business of that Court, even upon the submission in the answer, to decree either an injunction or an account of the profits of works of such a nature that the author could maintain no action at law, for the invasion of that which he calls his property, but which the policy of the law would not permit him to consider as his property. It was the duty of the Court to know, whether an action at law would lie or not, for if not, the Court ought not to give an account of the unhallowed profits of libellous publications. Declaring that at pre

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c. 19.

No. II.

8 Anne, c. 19.

sent, he was in total ignorance of the nature of the work, and whether the plaintiff could have a property in it or not; he would see the publications and determine upon the nature of them, whether there was question enough to send to law, as to the property in the copies; for if not, he would not act upon the submission in the answer. If, upon inspection, the work appeared innocent, he would act upon that submission; if criminal, he would not act at all; and if doubtful he would send that question to law.

It is observable that, in that case, there was no suggestion made to the Court, of any illegality in the contents of the work, and it does not distinctly appear, whether the Court took the matter up as a general rule, that no relief shall be given in respect of any publication, until after a personal examination, as to whether the contents are libellous; or whether the interposition was on account of a previous impression respecting the ludicrous writings published under the fictitious name of Peter Pindar, and to which the particular question immediately related.

In Hime v. Dale, 2 Campb. N. P. 27. n. it was contended, that on the principle stated in the last case, there could be no copyright in the well known song of Abra. ham Newland, because the lines,

"Though Justice, 'tis known,

Can see through a mill-stone,

She can't see through Abraham Newland." was a libel upon the administration of justice.

It might be supposed, that the argument was merely offered for the sake of a jest, but it seems to have received a serious answer from the Court,-Lord Ellenborough saying, that if the composition appeared on the face of it to be a libel, so gross as to affect the public morals, he should advise the jury to give no damages; and his Lordship and Mr. J. Lawrence both forcibly expressed the opinion that the song was not a libel. With respect to the question itself, it certainly does appear to be a correct principle, that a court of justice shall not give relief in favour of the publication of a libel any more than for any other breach of the law, but too much astuteness may be sometimes shewn, in giving the character of a libel to flying squibs, which are only calculated to raise a harmless laugh.

[29] In cases of an invasion of copyright, the remedy is either by action for the penalties upon the Statute, by action on the case for damages, or by injunction in equity. Upon the two former no observations will be requisite, a short examination of the latter will conclude the present note. It is clear that the proceeding by injunction is the most ready and effectual remedy which can be resorted to on the part of the plaintiff, but that a great degree of caution in the application of that proceeding, in the first instance, is requisite for preventing injustice to the defendant, whose loss does not from the nature of it admit of reparation, if the injunction should, upon further investigation, be found to have been erroneously applied, and the judges of courts of equity have in many cases expressed a strong sense of the importance of this principle.

In Hill v. the University of Oxon, 1 Vern. 275. the Lord Keeper North refused an injunction in favour of the right of the King's printer, against the claim of the Universities to print Bibles for sale, until he had established his right at law; observing, that in case the right should be found with the defendants, they would by such a prohibition receive a prejudice that he could not compensate nor make good to them; and Lord Clare, in the recent case of Grierson v. Jackson, above referred to, followed the same course.

In the general discussion of the common law right of literary property, in Millar v. Taylor, 4 Bur. 2303. 1 Bl. Rep. 675. a great stress was laid upon the different injunctions which had been granted by courts of equity, in favour of such right.Lord Mansfield (who had had very great experience in the Court of Chancery) said, that he looked at the injunctions which had been granted or continued before hearing, as equal to any final decree; for, that such injunction never is granted upon motion, unless the legal property of the plaintiff is made out, nor continued after answer, unless it remains clear. The Court of Chancery never grants injunctions in cases of this kind, when there is any doubt.-Sir Joseph Yates, on the contrary, in combating the general common law right, expressed his opinion, that the injunctions, being temporary only, decided nothing at all.-Lord Cambden, in his speech in Donaldson v. Beckett, already referred to, expressed himself upon this part of the argument as follows:-" All the injunction cases have been ably given; though I shall only add, in general terms, that they can prove nothing if a thousand injunctions had been granted, unless the Chancellor at the time he granted them had pronouneed a solemn opinion, that they were grounded upon the common law. Lord Hardwicke, after twenty years' experience, in the last case of the kind that came before him, declared that the point had never yet been determined.-Lord

Northington granted them on the idea of a doubtful title. I continued the practice on the same foundation, so did the present Lord Chancellor. Where then is the Chancellor who has declared, ex cathedrá, that he decided upon the common law right? Let the decision be produced in direct terms.'

I am not aware of any other general opinions being expressed as to the degree of judgment which ought to be entertained in favour of the right, in order to induce the granting or continuing an injunction previous to the hearing, prior to the case already cited of the Universities of Oxford and Cambridge v. Richardson, 1 Vesey, 689. in which Lord Eldon, after citing the observations of Lord Mansfield, and declaring that he could not accede to the proposition so unqualified, adverted and assented to the doctrine established in some recent cases respecting patents, in which the Court of Chancery had injoined the Defendants, during the pendency of the proceedings at law, upon the ground that they had had possession of the invention under colour of the title a patent questionable in that degree gave them; and, upon the same matter coming before the House of Lords, in Bruce v. Bruce, cited 13 Vesey, 505. he intimated the same opinion.-Lord Erskine quoting that opinion says, "Lord Eldon, when I pressed him with the cases that are now pressed upon me, to shew that injunctions proceeding upon legal right ought to have their foundation in a legal title, receiving consummation by a legal judgment, answers, that the Court granting the injunction until the hearing did not decide ultimately between the parties." The opinion of Lord Eldon in favour of supporting, by injunction, the supposed possession of patent inventions, accompanied by colour of right, is also expressed and acted upon in Harmar v. Playne, 14 Vesey, 130. which, with my impressions respecting it, I have stated in the note to the preceding

number.

In Hogg v. Kirby, 8 Vesey, 224. Lord Eldon, referring to the view taken of the subject by Lord Mansfield in Millar and Taylor, says, that in these cases which are very well expounded in that case, a Court of Equity takes upon itself to determine, as well as it can, the right in this period, and with a conviction, that if then the cause was hearing they would act upon the same rule. The Court takes upon itself, that which may involve it in mistake to determine the legal question. It is the decision of a judge sitting in equity, upon a legal question, and therefore not having all the authority of a decision of a court of law, but giving an opinion, and pledged to maintain it, unless there should be occasion to alter it.

Lord Erskine, in Gurney v. Longman, 13 Vesey, 505. (respecting the publication of Lord Melville's Trial), said, "I am so much convinced by the arguments for the defendant as to the effect of an injunction, upon a publication of this temporary nature, calculated merely for the gratification of present curiosity, that, unless I had a strong impression that at the hearing I should continue of the same opinion, and should grant a perpetual injunction, I would not grant the injunction now, which I only do as there is no probability that new facts will appear by the answer."

In case there should be any difference between the views which have been taken upon this subject, and which is still open to discussion, the justice of the case is apparently much in favour of that opinion, which is adverse to granting this extraordinary mode of relief upon less satisfactory grounds than such as would induce an absolute decision upon the direct question of right, supposing that question to have been the proper and immediate subject of the inquiry.

[No. III. ] 8 George II. c. 13.-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, during the Time therein mentioned.

WHEREAS divers persons have by their own genius industry pains

No. II.

8 Anne,

c. 19.

8 Geo. II.

c. 13.

and expence invented and engraved or worked in mezzotinto or chiaro oscuro sets of historical and other prints in hopes to have reaped Preamble.

⚫ the sole benefit of their labours: And whereas printsellers and other See 3 Wils. 60.

persons have of late, without the consent of the inventors designers and proprietors of such prints, frequently taken the liberty of copying engraving and publishing or causing to be copied engraved and published base copies of such works designs and prints to the very great prejudice and detriment of the inventors designers and proprietors thereof;"

No. III.

8 Geo. II. c. 13.

Property of

Prints vested in

the Inventor

for Fourteen
Years.

Proprietor's
Name to be

affixed to each

Print. Penalty on Printsellers

or others pirating the same.

For remedy thereof, and for preventing such practices for the future, may it please your Majesty that it may be enacted; and be it enacted by the King'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, That from and after the twenty-fourth day of June which shall be in the year of our Lord one thousand seven hundred and thirty-five every person who shall invent and design engrave etch or work in mezzotinto or chiaro oscuro, or from his own works and inventions (1.) shall cause to be designed and engraved etched or worked in mezzotinto or chiaro oscuro any historical or other print or prints shall have the sole right and liberty of printing and reprinting the same for the term of fourteen years to commence from the day of the first publishing thereof, which shall be truly engraved (2.) with the name of the proprietor on each plate, and printed on every such print or prints; and that if any printseller or other person whatsoever, from and after the said twenty-fourth day of June one thousand seven hundred and thirty-five within the time limited by this Act shall engrave etch or work as aforesaid or in any other manner copy and sell or cause to be engraved etched or copied and sold in the whole or in part by varying adding to or diminishing from the main design, or shall print reprint or import for sale or cause to be printed reprinted or imported for sale any such print or prints or any parts thereof without the consent of the proprietor or proprietors thereof first had and obtained in writing signed by him or them respectively in the presence of two or more credible witnesses, or knowing the same to be so printed or reprinted without the consent of the proprietor or proprietors shall publish sell or expose to sale or otherwise or in any other manner dispose of or cause to be published sold or exposed to sale or otherwise or in any other manner disposed of any such print or prints without such consent first had and obtained as aforesaid, then such offender or offenders shall forfeit the plate or plates on which such print or prints are or shall be copied, and all and every sheet or sheets (being part of or whereon such print or prints are or shall be so copied or printed) to the proprietor or proprietors of such original print or prints, who shall forthwith destroy and damask the same; and further that every such offender or offenders shall forfeit five shillings for every print which shall be found in his her or their custody either printed or published and exposed to sale or otherwise disposed of contrary to the true intent and meaning of this Act; the one moiety

(1.) The Act is not confined to inventions, strictly speaking, but means the designing or en graving any thing that is already in nature; and Lord Hardwicke granted an injunction as to prints of medicinal plants, saying, that the defendant, to make out the case he aims at, must shew that they are, in any other book or herbal, in the same manner and form as they are represented here-Blackwall v. Harper, 2 Atk. 93.; but in the subsequent case of Jeffreys v. Baldwin, Ambler, 164. his Lordship refused an injunction with respect to a drawing of herring busses, saying, that "the case was not within the statute, which was made for the encouragement of genius and art; if it was, any person who employs a printer or engraver would be so too. The statute is, in this respect, like the statute of new inventions, from which it is taken." But any objection of this kind seems to be removed by stat. 7 Geo. 3. c. 38. post. As to the degree of originality which brings a case within the statute; see note to the preceding number, and Roworth v. Wilkes, 1 Campb. 94.

(2.) Both the date and the name must be engraved to entitle the party to the penalties under the statute.-Sayer v. Dicey, 3 Wils. 60.

An

action on the case may be maintained by the publisher or his assignee, and this comme semble independently of the authority of statute 17 Geo. 3. c. 57. post. In Thomson v. Symonds, 5 T. R. 41. it seems to be taken for granted, that to support such action, it is necessary that the date and name of the publisher shall be engraved as directed; but in Haworth v. Wilkes, 1 Campb. N. P. 94. Lord Ellenborough held, that although the plaintiff's name was not engraved, if there had been a piracy, he was entitled to a verdict ; for the interest being vested, the law gives a remedy. He assimilated the case to Beckford v. Hood, 7 T. R. 620. decided on statute 8 Anne, c. 19. (V. the preceding number,) but query, if there is not an evident difference in the language of the statutes-and whether, in this statute, the engraving the name, &c. is not an express condition to the vesting of the right; whereas, in that act, the direction for entering at Stationers' Hall is a separate and distinct provision. It is however to be observed, that, in Blackwall v. Harper, 2 Atk. 92. Lord Hardwicke considers the provision for engraving the name and date as only directory and only necessary to make the penalty incur.