PART L the entry of "the name and place of abode of the assignee" in the form given in the schedule, in the form itself which CHApter XV. is given in the schedule there is no reference whatever to the place of abode of the assignee. Would, then, an entry following strictly the form given in the schedule, and omitting the place of abode of the assignee, be a valid assignment? This question was raised but not determined in Wood v. Boosey, (a) the judgment of the court proceeding on other grounds. The safer course is, to add the place of the assignee's abode. assignee register sue? Another point discussed in the case last referred to, was Must an whether an assignee of copyright is a "proprietor" within before he can the meaning of that term in sect. 24 of 5 & 6 Vict. c. 45, which prevents any proprietor of copyright in books from maintaining 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, &c., have caused an entry to be made in the book of registry pursuant to the Act. The court did not decide this question either, but Cockburn, C.J., leaned to the opinion that an assignee was not a proprietor within the application of sect. 24. Lush, J., entertained considerable doubt on the subject, and the other two judges, Blackburn and Mellor, JJ., declined to express any opinion on so doubtful a point. Cockburn, C.J., said "The result of the discussion has been to cause me very strongly to incline to the opinion. that sect. 24 of 5 & 6 Vict. c. 45, which requires that the proprietor shall be registered before he shall be entitled to bring an action for the infringement of his copyright, does not apply to the case of an assignee to whom the proprietorship is assigned. The moment the copyright is established in the original proprietor, there is nothing to prevent him from assigning it by any mode by which property of that description can be assigned in law, the statute only affording one mode of making the assignment more convenient and less expensive than the ordinary mode of conveyance by deed. (b) If the assignment is made under the statute, then, no doubt, its terms must be complied with.. taking this not to be a statutory assignment, is it necessary PART I. CHAPTER XV. Sale of copies printed before assignment. Equitable assignment. vested, and any person who takes by assignment from him; nor do I anywhere in the Act find that the assignee has any right to insist upon having his name entered as the new proprietor: the only case in which the change of the name of the proprietor is to be made being where the statutory form of assignment is resorted to; and even in that case, it is not the assignee but only the assignor who can insist on the change being made in the register. Therefore, to hold that the assignee must make an entry under sect. 24 of his proprietorship, before he can sue for the infringement of the copyright transferred to him, he having no power under the statute, either through the means of this court, or any other means that I can see, to enforce the registration of an entry by way of assignment under sect. 13, and to apply the term proprietor to him would, I think, work considerable inconvenience, if not considerable injustice. However, although I make these observations in passing, to show the matter has not been overlooked, I do not desire to be understood as resting my present judgment on that point." Blackburn, J., observed, "With regard to the objection that there is no entry of the plaintiff as proprietor of the copyright under sect. 24 of 5 & 6 Vict. c. 45, at first I thought the objection fatal to the plaintiff's case, but after hearing the argument my opinion is much shaken, and I would not support the nonsuit on that ground without further time for consideration." In this state of the law it would obviously be very unsafe for an assignee of copyright to commence any proceeding for infringement of his right without having previously registered at Stationers' Hall. Unless there is some stipulation to the contrary in the conditions of sale, the person who sells his copyright to another may print any number of copies up to the time of the sale, and retain and sell such copies after disposing of the copyright; though, of course, he commits piracy by printing any copies after the sale. (a) Courts of equity have given relief and enforced contracts in many cases where there was no remedy at law. Amongst other maxims which they act on is one-that Equity looks upon that as done which ought to have been done. The most common cases of the application of the rule are under agreements, all such being considered as performed which are made for a valuable consideration, in favour of persons entitled to insist on their performance. Hence a man has in many cases a title recognised and enforced by (a) Taylor v. Pillow (L. Rep. 7 Eq. 418). PART L Equity where he has no title at law. Thus an agreement to assign is treated by Equity as a valid assignment, and in- CHAPTER XV. fringements of literary property have been restrained where the claimant of the aid of Chancery had only an equitable title to relief, and possessed no title recognised at law. Lord Mansfield, indeed, was of opinion that relief would not be given in such a case, and said, in Millar v. Taylor, (a) that unless a court of equity saw a law right existing in the author it would not interfere. Such also was the opinion of Lord Eldon, in Rundell v. Murray.(b) But Lord Lyndhurst, in Chappell v. Purday, (c) referring to this expression of opinion, observed, "If by this it was meant to be said that a court of equity would only interfere when the legal right was in the party applying for its interference, I will not go so far; because I think that a court of equity will assist any party having an equitable right, where the legal right intervenes to prevent his obtaining justice; otherwise great fraud would ensue." The In Sweet v. Shaw, (d) the plaintiffs, who sought to restrain the infringement of their property in certain reports of cases, furnished to them for publication by two barristers, asserted only an equitable title to the copyright under an agreement with the barristers who reported the cases. Vice-Chancellor, Sir Launcelot Shadwell, was distinctly of opinion that the plaintiffs had made out only an equitable right, but that, nevertheless, they had stated quite a sufficient case to support their bill; and he continued the injunction restraining the defendants from infringing the copyright of the plaintiffs. With reference to the nature of the agreement, the Vice-Chancellor said: "What the plaintiffs state is that they have agreed with A. and B. that A. and B. shall report cases for them; and accordingly A. and B. do take notes of cases, which are printed by Sweet and others, the plaintiffs, and they publish them, and then the plaintiffs aver that they have a copyright in the cases published. Now I think that they have in equity, but I cannot understand how they have got the copyright at law; because I cannot see how, at law, the agreement that persons shall prepare a work for the plaintiffs gives the plaintiffs a copyright at law, for nothing can pass at law except that which actually exists; and it is true, not only with respect to an assignment, but also with respect to a release, as (a) 4 Burr. 2400. (b) Jac. 315. But see the order made by the same judge in Mawman v. Tegg (2 Russ. 385). (c) 4 Y. & Col. (d) 3 Jur. 217. PART I. Littleton points out, that there cannot be a release of a CHAPTER XV. future right, and consequently there cannot be an assignment of anything that does not now exist."(a) The same judge elsewhere (b) says, "This court always takes notice of the equitable interest; and if the equitable right to the copyright is complete, this court will take care that the real question shall be tried, notwithstanding there may be a defect in respect of the legal property." And Lord Eldon, in a case of equitable title, where he thought it advisable that an action should be tried at law before he granted an injunction, ordered the defendants to admit the legal title of the plaintiff in the trial of the action. (c) An agreement in writing between an author and a bookseller by which, after reciting that the author had prepared a new edition of one of his works which the publisher was desirous of purchasing, it was agreed that 2500 copies of the work should be printed at the expense of the bookseller, who was to pay the author by instalments a sum named for the said edition, was held to constitute the publisher, not merely the purchaser of 2500 copies of the work, but an assignee in equity of the copyright to the extent of being alone entitled to publish the whole edition, consisting of 2500 copies, and to prevent the piracy of that edition by any other person. (d) On the other hand a written agreement between an author and a publishing firm that the latter "should print, reprint, and publish a work of the author's, at their own risk, on the terms of dividing equally with him any profits that there might be after payment of all expenses; and that if all the copies should be sold and another edition should be required, the author should make all necessary alterations and additions, and the publishers should print and publish a second and subsequent editions on the same terms, and that if all the copies of any edition should not be sold in five years from the time of publication, the publishers might sell the remaining copies by auction or otherwise, in order to close the account," was held by the Lords Justices, affirming the decision of Wood, V.C., not to be a contract for the assignment of the author's copyright but a mere personal contract on both sides not assignable by either party.(e) The firm with whom the agreement was made (a) See also Sweet v. Maugham (4 Jur. 456). (b) Bohn v. Bogue (10 Jur. 421). (c) Mawman v. Tegg (2 Russ. 402). (d) Sweet v. Cater (11 Sim. 573). (e) Stevens v. Benning (6 D. M. & G. 223; 1 Kay & J. 168). having been changed, and their interest having been assigned to a new firm, the latter firm was held not entitled to restrain the publication of a new edition by another publisher with the author's concurrence. PART L CHAPTER XV. A similar case was Reade v. Bentley, (a) where an agree- Reade v. Bentley. ment was entered into between the plaintiff and defendant that the latter should "publish at his own expense and risk a book written by the plaintiff, and after deducting from the produce of the sale thereof the charges for printing, paper, advertisements, embellishments, and other incidental expenses, including the allowance of 10l. per cent. on the gross amount of the sale for commission and risk of bad debts, the profits remaining of every edition that should be printed, to be divided equally between the plaintiff and defendant; the books sold to be accounted for at the trade sale price, reckoning twenty-five copies as twenty-four, unless it should be thought advisable to dispose of any copies, or of the remainder at a lower price, which was left to the judgment and discretion of the defendant." The Vice-Chancellor (Wood) was clearly of opinion that this agreement was not, and was never intended by either party to be, a contract for the sale or purchase of the copyright. The Vice-Chancellor said, "It is unfortunate that publishers and authors should frame their agreements with so little precision, as from the case of Stevens v. Benning and this case it appears they are in the habit of doing. At the same time, from what I see in this case, I feel more confident than I did in Stevens v. Benning that there was no intention to dispose of the copyright by this agreement, because I cannot suppose that authors or publishers are so unaware of the importance and value of that right, as not clearly to express their intention when they mean the copyright to pass." When the case of Reade v. Bentley came a second time before the court, the counsel for the defendant did not contend that the agreement amounted to a sale of the copyright, but insisted that the plaintiff had thereby granted to the defendant an irrevocable licence to print and publish. The Vice-Chancellor did not, however, adopt this construction of the agreement. He said: (b) "If the defendant's construction be correct, it follows that so long as he lives and is willing to continue publishing fresh editions of the work, so long, according to the doctrine in Sweet v. Cater, the plaintiff will be precluded from asserting a right to publish any competing edition. The defendant could compel the (a) 3 K. & J. 271. (b) 4 K. & J. 664. M |