§ 101. Nature and limits perty. Neither will the law protect productions of an immoral or injurious tendency. Thus in Southey v. Sherwood, in 1817 (g), though the ground of the decision of right. is not very clear, Lord Eldon refused to prohibit the defendant from publishing Wat Tyler,' an early work of Southey's, on the ground apparently that it was an immoral work, and that the State would afford no protection to works of such a character. However, there was also a question whether Southey, by leaving the manuscript in the hands of a publisher for twenty-three years, had not waived his rights. The regulation as to immorality is subject to the criticism (h) bestowed on the law with regard to published works of that character, a criticism which has even more force where by hypothesis without the piracy the matter would not be made public. The work need not be of any pecuniary value or literary merit (i). Investitive Putting in writing the result of intellectual work is § 102. sufficient to vest the common law right in the author, facts. but it does not appear essential. For instance, there is probably a common law right to prevent the publication of lectures of which no manuscript exists. In Abernethy v. Hutchinson (k), Abernethy, the celebrated physician, gave a course of lectures open only to students attending by his permission. One of these took notes of the lectures, and proceeded to republish them in the Lancet. Lord Eldon restrained publication on the ground that a breach of trust had been committed, holding that a student had a right, for purposes of information, to take (g) 2 Merivale, 435. (h) See § 26. () Gee v. Pritchard, 2 Swanston, 402; Woolsey v. Judd (Am.), 4 Duer. N.Y. 379. (k) 1 Hall & Tw. 28. § 102. facts. down the whole lecture in shorthand, but no right to Investitive make such notes in order to publish them for profit. But he seems to have doubted as to the foundation of his jurisdiction, for he said (1): "Where a lecture is orally delivered, it is difficult to say that an injunction could be granted upon the same principle upon which literary compositions are protected; because the Court must be satisfied that the publication complained of is an invasion of the written work; and this can only be done by comparing the composition with the piracy." § 103. Transvestitive facts. A man putting into written or oral form the results of his intellectual labour, acquires protection for such results. Free application of the principle of waiver, and the reasons underlying the maxim, "De minimis non curat lex," hinder this proposition from having the unfortunate result of establishing copyright in conversation, jests, and the like. The author may deal with his copy as with any other piece of property. He may assign copies under express or implied undertaking not to publish, when property in the original manuscript will pass, but not the right to publish. In the words of an American case (m): "This property in manuscript is not distinguishable from other personal property. It is governed by the same rules of transfer and succession, and is protected by the same process, and has the benefit of all the remedies accorded to other property so far as applicable. Thus in Thompson v. Stanhope (n) Lord Chesterfield's celebrated letters to his son having been sold by his (7) 1 Hall & Tw. p. 39. (m) Palmer v. De Witt, 47 N. Y. 532, 538. (1872). § 103. vestitive son's widow to Dodsley, the latter published them, and Lord Chesterfield's executors applied for an injunction Transto restrain publication. The Lord Chancellor granted it, facts. holding that the widow had no right to print without the consent of Lord Chesterfield, and that when Lord Chesterfield declined receiving the letters from her and said she might keep them, he did not mean to give her leave to publish them. So in Abernethy v. Hutchinson (o) it was held that a right was given to hear and take a copy for information and instruction, but not to publish such a copy. In the case of Letters, the writer retains copyright in the letter, so as to hinder the receiver from publishing it, except under special circumstances. It has been suggested (p) that the receiver of a letter may publish it without the consent of the writer for purposes of personal vindication. In the case of Pope v. Curl, in 1741, the poet Pope applied for an injunction against Curl, the bookseller, to restrain him from publishing letters to and from Pope. Lord Hardwicke granted it as to letters written by Pope, but not as to those written to him, saying (q): "The receiver has only a special property possibly in the paper, but this does not give a license to any person whatsoever to publish letters to the world, for at most the receiver has only a joint property with the writer," who could therefore restrain publication. In Oliver v. Oliver (r) it was held that the receiver of a letter might maintain an action for detinue against a person into whose possession the letter had passed. (6) 1 Hall & Tw. 28. (p) Percival v. Phipps, 2 Ves. & B. 19; Folsom v. Marsh (Am.), 2 Story, 100, 111. (7) 2 Atk. 312. (r) 11 C. B. N.S. 139. § 104. Letters. § 105. Conditional cations. Communication of a work may be only partial, restricted, and conditional, for a limited purpose, and the communi- donor may prevent the donee from transgressing the conditions of the communication. In the words of Lord Cottenham, in Prince Albert v. Strange (s): “In most of the cases which have been decided, the question was not as to the original right of the author, but whether what had taken place did not amount to a waiver of such right; as in the case of letters, how far the sending of the letters; in the case of dramatic compositions, how far the permitting the performance; and in the case of Mr. Abernethy's lecture, how far the oral delivery of the lecture had deprived the author of any part of his original right or property." § 106. Divesti tive facts. Publication destroys the common law right, and if according to the statute, vests statutory copyright; if not according to the statute, all copyright may be lost. Publication is defined as "making a thing public in any manner in which it is capable of being communicated to the public." Though not necessarily so, it is generally for sale, or at any rate, so as to be accessible to all who choose to obtain it, on conditions imposed not by the author but by the law. Publication "for private circulation only," that is, on conditions imposed by the author, does not divest the common law right (t). Waiver of rights is a divestitive fact of copyright. The late American case of Kiernan v. Manhattan Quotation Company (u) shews the difficulties of drawing the line as to what constitutes publication. A., the plaintiff, had bought the exclusive right to use foreign (s) 1 Macn. & Gor. 25, 42. (t) White v. Geroch, 2 B. & Ald. 298. (u) 50 How. Pr. N. Y. 194 (cited by Drone, p. 122). § 106. Divestitive facts. financial news supplied by B., and telegraphed it to his customers, where it was exposed to public view on printed cts. tape connected with stock indicators. C. used A.'s news for transmission to C.'s customers. A. sued C., and it was held that giving news to the public in this way was not such publication as to defeat A.'s common law rights. The right will be infringed by any use of an intellectual production without the consent of the owner, or not warranted by the conditions of its communication by him. The remedies are the ordinary common law action for damages sustained, and the right to an injunction to restrain publication. § 107. Infringements and remedies. § 108. tive sum The law of England and the United States is practically the same, except that while in England the Comparaproperty in unpublished MSS. rests on common law only, mary. in the United States the protection is by statute (x). European nations practically agree in similar protection. Denmark (y) limits the right to a term of thirty years from the author's death. The Courts in France (z) have decided that MSS. cannot be published by an author's creditors without his consent. Russia (a) provides that private letters cannot be published without the consent of author and receiver. The German (b) proviso is a fair sample of the rest, and is to the effect that printing MSS. without the consent of the author, even by the legal owner, is piracy. This right is perpetual. (x) U.S. Rev. St. § 4967. (y) Copinger, p. 554. (z) Cop. p. 514. (a) Cop. p. 564. |