Sidebilder
PDF
ePub
[merged small][merged small][ocr errors][merged small]

in Lovel's case; cited in the Countess of Rutland's case (a). But it is said the Court must presume that the defendant is the heir male of the person restored to the title of Lord Stafford by the act. If the description of the defendant in the plea were the same as that in the act, which it is not, still it would be necessary for him to aver that he was the heir male ; and looking at the act and the plea, before the Court can identify the title in the one with that in the other, they must presume much more than they ought to do in favor of a plea in abatement. There may be other Lords Stafford. “Lord Staffordis the only title which the act recites; for though it declares that he shall be a baron, it does not say by what title. It empowers him to bear the arms of the “ Barons of Stafford,evidently leading to the presumption that the original title had been, not Baron Stafford, but Baron of Stafford. In either point of view, therefore, this plea is bad. If we exclude the act from our consideration, it is bad for not shewing how the title claimed is derived. If we take notice of the act, as a public act, (and whether we can or cannot do so, it is not necessary on the present occasion to decide, and upon that point, therefore, I express no opinion, it is equally bad, for not averring that the defendant is the heir male of the

person restored to the peerage by the act.

For these reasons I am of opinion that there must be judgment of respondeat ouster.

HOLROYD, J. concurred (6).

Judgment accordingly.

(a) 6 Rep. 53.

(6) Littledale, J. was absent.

1824.

CLEMENTI and others.v. WALKER. The privileges conferred by THIS was an action on the case, in which the plaintiffs the copyright acts of this declared, that before and at the time of committing the country, do not extend to

grievances thereinafter mentioned, they were the proprietors books printed of the copyright of and in a certain book, being a musical abroad. Where the

composition, called “ Vive Henri Quatre, the celebrated author of a French national air, with an introduction, and eight variamusical composition sold tions for the piano-forte,” first printed and published within the right of publishing it to

fourteen years last past; to wit, at Westminster in the a music seller county of Middlesex; yet defendant, well knowing the prein Paris in 1814, reserv

mises, but contriving, and wrongfully and injuriously intending to himself ing, &c. theretofore, and after the passing of a certain act of publishing it parliament, passed in the 54th year of Geo. 3., to wit

, on in England, the 26th January, 1822, and on divers other days and times and in the same year he between that day and the day of exhibiting the bill of the said sold the work to A. an

plaintiffs against defendant, to wit, at, &c. knowingly, wrongEnglish music fully, and injuriously, and without the consent of plaintiffs, seller, by parol, who im- so being the proprietors of the copyright of and in such mediately pub- book, first had and obtained in writing, printed and caused lished it; and in 1818, B. to be printed divers, to wit, 2000 copies of the said book of English music plaintiffs, by means whereof plaintiffs were greatly injured seller, bought and damnified, to wit, at, &c. There were seven other a French copy counts for publishing and exposing to sale pirated copies of sition, in the the saine work. At the trial before Abbott, C. J. at the fair way of his trade, at Puris

, Middleser Sittings in last Hilary Term, the plaintiffs had a and republish- verdict with nominal damages, subject to the opinion of the ed it here on his own ac

Court
upon

the following case :count; and in

Mr. F. Kalkbrenner, a foreigner, composed the music in 1822 the author exe question in France, in the year 1814. Before he came to cuted a valid assignment of England, which he did in June in that year, he agreed with the copyright Mr. Pleyel, a publisher of music in Paris, that he should writing :

have the right of publishing such music in France only, reHeld, that 1. serving to himself the right of publication in England. It maintain an was not published in France before Mr. Kalkbrenner quitaction against ted that country to come to England. On the 17th of

of the compo

to A. in

could not

B. for piracy.

1824.

CLEMENTI

WALKER.

June, 1814, there were deposited by Mr. Pleyel five copies of the musical composition in question in the depôt at Paris, for entry of copyright in France. It has been published and sold in France up to the present time. Shortly after Mr. Kalkbrenner arrived in England, viz. on the 12th of July, 1814, he sold the work in question, with two others, by a parol agreement, for the sum of 301. to the plaintiffs, and two other partners since dead; and which sum was then paid to him for the same. A few days after such sale, Mr. Kalkbrenner returned to France, and there corrected the engraving of the composition for the publication in Paris for Mr. Pleyel, and did not see the work published at Paris till the following year, 1815. The plaintiffs first published the composition in England between the 3d and 10th of September, 1814. At the distance of two years after this, Mr. Kalkbrenner was paid by Mr. Pleyel 200 francs, which is equal to about 8l. sterling, for the right Mr. Kalkbrenner had so sold to him. On the 24th of January, 1822, Mr. Kalkbrenner being in England, executed an assigument in writing of his copyright in the musical composition in question to the plaintiffs, agreeably to the terms of sale made by him to them in 1814. The defendant sold a copy of the work in question to Mr. Lindsey on the 20th of Februury, 1822, at his shop in London, for two shillings. Such copy was on English paper, and from an English engraving. The son of the defendant, in 1818, purchased a copy of the composition published by Mr. Pleyel, at a shop in France, with a number of others by the same author, which the defendant caused to be engraved and published in England in December, 1818. The defendant's edition was a fac-simile of the copy so purchased by his son, and there was no difference between that edition and the edition published and sold by the plaintiffs in England. There is a register kept at Paris, and by the law of France, all musical publications must be registered, and a copy of the said composition was duly registered and deposited there on the 17th of June, 1814. The defend

1924.

ant's son never heard or saw the composition until he saw it at the shop in Paris in 1818.

[blocks in formation]

Comyn, for the plaintiffs. The plaintiffs are entitled, as the proprietors of the copyright, to maintain this action. By the statute 8 Arne, c. 19. the sole right of printing any work was conferred upon the author, or his assignee, for fourteen years, that period to begin from the day of his first publishing the work. That statute is explained and extended by the subsequent statutes 41 Geo. 3. c. 107. and 54 Geo. 3. c. 156., and as all three were passed for the purpose of protecting the rights of authors, they must all receive the construction most favorable to authors. The first publication by the plaintiffs, who were the assignees of the author, was in September, 1814; and though that, according to the case of Power v. Walker (a), did not confer upon them the exclusive right of printing the work, because there was no consent of the author in writing for that purpose, as required by the statute, still, as that publication was made with the consent of the author, it must be taken as a publication by him, and then the subsequent printing of the work by the defendant becomes a wrongful publication, for which the plaintiffs are entitled to a remedy. The partial sale of the work by the author in France, in 1814, did not give the defendant any right to publish it in England. The right in the work vested in the author in 1814, and it remained entire in him until he made a legal assignment of it to the plaintiffs in 1822. Therefore a sale by the defendant after that assignment was an infringement of the right then vested in the plaintiffs, by means of which they have acquired a good right of action.

Campbell, contrà. The work was first published, with the consent of the author, in France, and by that act his right to an exclusive publication in England was gone. It is true, that in Edgeberry v.Stephens (6) it is said, “ a grant (a) 3 M. & S. 7.

(b) 1 Salk. 447.

1824.

CLEMENTI

WALKER.

of a monopoly may be to the first inventor by the 21 Jac. I. and if the invention be new in England, a patent may be granted, though the thing was practised beyond sea before;" but that case depended upon the language of a statute very distinct in its object from those now in review; “ for," it is added, “ the statute speaks of new manufactures within this realm; so that if they be new here, it is within the statute; for the act intended to encourage new devices useful to the kingdom, and whether learned by travel or by study, it is the same thing.” The statute of Anne confers upon the author the exclusive right of printing, for a period which is to.commence from the time of his first publishing, and that statute, as well as those which followed it, clearly apply to works first published in England. The second section of the 8 Anne, which requires the entry of all books, and the delivery of a certain number of copies of them at Stationers' Hall; and the fourth section, which empowers the Archbishop of Canterbury, and the other officers of state, to regulate the prices of books; both plainly refer to works published for the first time in England. The seventh section, which provides that the act shall not extend to prohibit the importation of any book printed in Greek, Latin, or any other language, beyond sea, evidently implies that any book actually printed in a foreign country, may legally be imported into this country, and sold here; and if it is allowable to sell such books here, it seems impossible to give any good reason why it should not also be allowed to reprint them here, which would be beneficial to the nation, as affording a mode of employment for British capital, talent, and industry. The 12 Gev. 3. c. 36. which has not been cited on the other side, strengthens this argument, bécause, although it prohibits the importation of books origi- . nally, printed in England and subsequently reprinted in foreign countries, it does not prohibit the importation of books originally printed in foreign countries. By originally publishing his work at Paris, the author dedicated it to the service of all mankind, and having so done, he cannot after

« ForrigeFortsett »