Author: MacGillivray, Evan James, 1873-1955
Copyright — United States
Copyright — Great Britain
A Treatise Upon the Law of Copyright in the United Kingdom and the Dominions of the Crown,
and in the United States of America Containing a Full Appendix of All Acts of Parliament International Conventions, Orders in Council, Treasury Minute and Acts of Congress Now in Force.
[i]
A TREATISE UPON
THE LAW OF COPYRIGHT
[ii]
[iii]
A TREATISE UPON
THE LAW OF COPYRIGHT
IN THE UNITED KINGDOM AND THE DOMINIONS
OF THE CROWN, AND IN THE UNITED
STATES OF AMERICA
CONTAINING A FULL APPENDIX OF ALL ACTS OF PARLIAMENT
INTERNATIONAL CONVENTIONS, ORDERS IN COUNCIL
TREASURY MINUTE AND ACTS OF CONGRESS
NOW IN FORCE
By E. J. MACGILLIVRAY, LL. B. (Cantab.)
OF THE INNER TEMPLE, BARRISTER-AT-LAW
MEMBER OF THE FACULTY OF ADVOCATES IN SCOTLAND
LONDON
JOHN MURRAY, ALBEMARLE STREET
1902
[iv],
[v]
TO
THOMAS EDWARD SCRUTTON, Esq., K. C.
IN GRATITUDE FOR
MUCH INSTRUCTION AND KINDNESS
[vi]
[vii]
PREFACE
The foundations of this work were laid by my endeavours to understand what is perhaps the most complicated and obscure series of statutes in the statute book. In working from time to time at the Law of Copyright I found great want of a text-book which should be exhaustive of the case law, and at the same time contain a concise and clearly arranged epitome of the statutory provisions. This want I have tried to supply for myself in the present compilation, and it is now published in the hope that it may prove useful to others. The present law is bad both in substance and form, but it is the more essential that those who have anything to do with literary or artistic property should comprehend it in so far as it is comprehensible. There are probably more pitfalls for the unwary in dealing with Copyright than with any other branch of the law.
We have for some time been on the eve of a general codification and amendment of the Law of Copyright. It is, however, an eve of long and indefinite duration. It is now twenty-eight years since the Royal Commission on Copyright was appointed, and still nothing has been done to ameliorate the lamentable condition in which the Commissioners then found the law. Dissensions among those who are interested in Copyright, failure to come to a satisfactory arrangement with the colonies, and want of time at the disposal of the legislature are mainly responsible for this delay. In the meantime it is well that all those who are interested in Copyright should make themselves conversant [viii] with the law as it now is, so that when the time for legislation does at last come the result may be the more satisfactory.
I have added to this work Part II., dealing with Copyright in the United States, and I hope it may prove useful not only to English but to American lawyers and publishers.
I have to acknowledge much assistance in the preparation of this work and many invaluable suggestions from my friends, Mr. Langridge, of the Middle Temple, and Mr. Mackinnon, of the Inner Temple.
E. J. MACGILLIVRAY.
3 Temple Gardens,
June 1902.
[ix]
CONTENTS
PAGE | |
Table of English, Scotch, Irish, Indian, and Colonial Cases | xix |
Table of Cases in the United States | xxxi |
PART I | |
---|---|
THE LAW OF COPYRIGHT IN THE UNITED KINGDOM | |
AND THE DOMINIONS OF THE CROWN | |
CHAPTER I | |
INTRODUCTORY | 3 |
CHAPTER II | |
WHAT BOOKS ARE PROTECTED | |
Sec. 1. What is an Original Book | 10 |
Definition of a Book | 10 |
Essential Elements of a Book | 11 |
Physical Form | 11 |
Literary Matter | 13 |
Originality | 15 |
Examples of what are Books | 16 |
Sec. 2. Publication | 36 |
Divestitive Publication | 37 |
Investitive Publication | 38 |
First Publication within the British Dominions | 40 |
Sec. 3. Author’s Nationality | 42 |
Sec. 4. Immoral Works | 46 |
Sec. 5. Registration | 46 |
Before Action | 46 |
The Requisite Entry | 49 |
The Actual Title | 49 |
The Time of First Publication | 51 |
The Name and Place of Abode of the Publisher | 52 |
The Name and Place of Abode of the Proprietor | 52 |
Certificate of Registration | 53 |
False Entries | 54 |
Rectification of Register | 54[x] |
Sec. 6. Delivery of Copies to Libraries | 55 |
Sec. 7. Duration of Protection | 56 |
Sec. 8. Copyright in Lectures | 57 |
CHAPTER III | |
THE OWNER OF THE COPYRIGHT IN BOOKS | |
Sec. 1. The Crown | 59 |
Sec. 2. The Universities | 61 |
Sec. 3. The Author | 62 |
Sec. 4. The Employer | 66 |
Under Section 18 | 66 |
Scope of Section | 67 |
Under such Employment | 68 |
On Terms that Copyright shall belong to such Proprietor | 68 |
Joint Employers | 71 |
Payment | 71 |
Author’s Separate Rights | 72 |
Employer’s Rights where Section 18 does not apply | 73 |
Sec. 5. The Assignee | 74 |
Before Publication | 74 |
After Publication | 77 |
Partial Assignment | 80 |
Assignment distinguished from Licence | 81 |
Sec. 6. The Licensee | 82 |
Sec. 7. The Executors or Administrators | 83 |
Sec. 8. The Trustee in Bankruptcy | 83 |
CHAPTER IV | |
INFRINGEMENT OF COPYRIGHT IN BOOKS | |
Sec. 1. Prohibited Acts, and Remedies | 84 |
Causing to be Printed | 85 |
Damages | 86 |
Account of Profits | 86 |
Injunction | 86 |
Delivery up of Copies | 89 |
Customs Act | 91 |
Every Offence | 91 |
Limitation of Action | 91 |
Pleading | 92 |
Evidence | 94 |
Discovery | 94 |
Mode of Trial | 94 |
Costs | 95 |
Sec. 2. What is a Piratical Copy | 96 |
What is a Copy | 97 |
A Substantial Part must be Taken | 97[xi] |
No Animus Furandi need be Proved | 100 |
Taking not necessarily for Profit | 101 |
Copying may be Indirect and Unintentional | 102 |
Custom of Trade | 102 |
Fair Use | 103 |
No one can Monopolize a Field of Labour | 103 |
No Infringement to take Facts | 104 |
No Infringement to take the General Scheme of another’s Work | 105 |
Every Author must do his own work | 105 |
Work with a Different Object | 109 |
Extract for purpose of Criticism | 111 |
Improvement or Addition of New Matter no Excuse | 112 |
Dramatization of a Novel | 114 |
Abridgments | 114 |
Translations | 116 |
Licence | 118 |
Abandonment | 119 |
Acquiescence and Delay | 119 |
Provision against the Suppression of Books | 119 |
CHAPTER V | |
PERFORMING RIGHTS | |
Sec. 1. Nature of Performing Right | 120 |
Sec. 2. Performing Right at Common Law | 121 |
Sec. 3. What is a Dramatic Work | 123 |
Sec. 4. What Dramatic Works are Protected, and Duration of Protection | 126 |
Sec. 5. What is a Musical Composition | 130 |
Sec. 6. What Musical Works are Protected, and Duration of Protection | 130 |
Sec. 7. Registration of Performing Rights | 131 |
Musical Compositions | 133 |
Sec. 8. Assignment of Performing Rights | 134 |
Sec. 9. Infringement of Dramatic Performing Rights | 135 |
Public Performance | 135 |
Substantial Part | 138 |
Causing to be Represented | 139 |
Knowledge | 142 |
Innocent Agents | 142 |
Licence | 142 |
Sec. 10. Infringement of Musical Performing Rights | 142 |
Substantial Part | 142 |
Public Performance | 143 |
Causing to be Represented | 143 |
Sec. 11. Remedies for Infringement of Dramatic Performing Rights | 144 |
Sec. 12. Remedies for Infringement of Musical Performing Rights | 145[xii] |
CHAPTER VI | |
COPYRIGHT IN ENGRAVINGS | |
Sec. 1. What Works are Protected | 146 |
What is an Original Engraving | 146 |
Originality | 147 |
Maps, Charts, and Plans | 148 |
Engravings in a Book | 149 |
Must the Engraving be made within the British Dominions | 150 |
The Engraving must be First Published within the British Dominions | 150 |
Date of First Publication and Proprietor’s Name | 151 |
Name of Proprietor | 151 |
Immoral Works | 152 |
Duration of Protection | 152 |
Sec. 2. The Owner of the Copyright | 152 |
The Engraver | 152 |
The Employer | 153 |
The Assignee | 154 |
Sec. 3. Infringement of the Copyright | 155 |
Prohibited Acts and Remedies | 155 |
Guilty Knowledge | 156 |
Limitation of Action | 156 |
Costs | 156 |
Copying for Private Use | 156 |
What is a Piratical Copy | 156 |
Licence a Defence | 159 |
CHAPTER VII | |
COPYRIGHT IN SCULPTURE | |
Sec. 1. What Works are Protected | 161 |
What is an Original Sculpture | 161 |
The Sculpture must be First Published within the British Dominions | 162 |
Publication | 162 |
Author’s Nationality | 162 |
Proprietor’s Name and Date | 162 |
Proprietor’s Name | 163 |
Date | 163 |
Immoral Works | 163 |
Duration of Protection | 163 |
Sec. 2. The Owner of the Copyright | 164 |
The Artist | 164 |
The Employer | 164 |
The Assignee | 164[xiii] |
Sec. 3. Infringement of the Copyright | 164 |
Prohibited Acts and Remedies | 164 |
Guilty Knowledge | 165 |
Limitation of Action | 165 |
Copying for Private Use | 165 |
What is a Piratical Copy | 165 |
CHAPTER VIII | |
COPYRIGHT IN PAINTINGS, DRAWINGS, AND PHOTOGRAPHS | |
Sec. 1. What Works are Protected | 167 |
Every Original Painting, Drawing, and Photograph | 167 |
Originality | 167 |
Artistic Merit | 168 |
Publication Outside the British Dominions | 168 |
Published | 169 |
Nationality or Residence of Artist | 170 |
Registration | 171 |
The Requisite Entry | 171 |
Name | 173 |
Place of Abode | 173 |
Short Description | 173 |
Immoral W | 174 |
Duration of Protection | 174 |
Sec. 2. The Owner of the Copyright | 174 |
The “Author” | 174 |
The Employer | 175 |
The Assignee | 176 |
Sec.
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