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appellant had no licence for the performance of stage plays in the said building. Held that he was rightly convicted of having or keeping a house for the public performance of stage plays without a licence, under 6 & 7 Vict, c. 68, s. 2.
HOW THE RIGHT OF REPRESENTATION IS TRANSFERRED.
Cumberland v. Copeland,
7 H. & N. 118.
For the present it is enough to say that assignment must be in writing, parol assignment being insufficient. But the writing need not be under seal, nor is attestation necessary, according to the rule laid down in Cumberland v. Copeland, over-ruling previous decisions.
Assignment by entry in Book of Register at Stationers' Hall as provided by the Copyright Amendment Act will be explained below, as also assignment by operation of the law.
INFRINGEMENT AND REMEDY.
Section 2 provides that every person who, without the consent in writing of the proprietor .
3 & 4 Wm. IV.,c. 15, s.2.
to be represented at any place of dramatic entertainment in the British Dominions any dramatic piece or part thereof, shall pay to the proprietor "for each and every representation an amount not less than 40s., or the full amount of advantage arising from such representation, or the injury or loss sustained. by the plaintiff therefrom, whichever may be the greater damages."
18 C.D. 76.
The infringement here provided for may consist, as was pointed out by James L.J., in Dicks v. Yates, in "open piracy" of the whole or part of a play, as when A represents B's drama without B's consent, giving out that B is the author.
Copyright is also infringed by what the same learned judge distinguished by the name of "literary larceny," or plagiarism, as where A takes the whole or a part of B's drama, and represents it as his (A's) composition. Whatever be the precise nature of the infringement, the remedy is the same.
But no action will lie unless the part taken is a substantial and material part. "The words 'production or any part thereof' must receive a reasonable construction, and are to be treated as implying some part that is substantial and material." It must be "a part and not a particle" that is taken, to constitute infringement. What amounts to an unlawful representation is a question of fact—for the jury. In Planché v. Braham, the performance of two or three songs out of the plaintiff's libretto without his consent was held to be an unlawful representation. This decision turned upon the amount represented, and did not touch the kindred question, what character of performance constitutes a representation. There are rehearsals, performances by marionettes, optical illusions, recitations in costume with scenic effects, and so forth. Are these "representations" within the meaning of the statute ?
WHAT IS CONSENT WITHIN THE ACT?
The consent must be in writing. Any doubt as to this is removed by the decision in Eaton v. Lake, 20 Q.B.D. reversing the judgment of the Divisional Court and following that of Shepherd v. Conquest. 17 C.B. 427. "Oral permission to perform is not sufficient to constitute a binding assignment or consent to representation of a composition." But it need not necessarily be in the handwriting of or signed by the proprietor of the copyright. Thus, permission given by the secretary of a Dramatic Authors' Society
to perform plays composed by members of the society is a sufficient consent within the Act-the secretary being the agent of the society, and thus of the individual members, in
Morton v. Copeland, 16 C.B. 517.
Powell v. Head, W.N. 1879. 86.
and for those purposes for which the society has been formed. Where two or more authors have collaborated, the consent of all must be obtained, for though there may be what is called a literary partnership, one partner cannot in this matter bind the other or others.
WHO IS AN OFFENDER WITHIN THE ACT?
The words of the statute are "all who represent or cause to be represented." Some idea may be gathered from the following illustrations ::
(1) A, the proprietor of a tavern, let a room in the
8 C.B. 836.
held that his conduct did not amount to representing or causing to be represented, and that though the manager might be liable, he
(2) C was the licensed proprietor of a theatre. D hired it for a dramatic entertainment which was in fact unauthorised. D brought his own company, had the selection of the pieces which were played, managed and controlled the performances, and all the persons engaged. C paid for printing and advertising, furnished the lighting power, doorkeepers, scene-shifters and supernumeraries, and hired the band, music being a necessary element in the performance. The money taken at the door was taken by C's servants. C retained one
half of the gross receipts as his remuneration for the
(3) E was the licensed proprietor of a theatre,
Per Erle, C.J. in Marsh v. Conquest, 10 Jur. N.Ś.
THE NATURE OF THE SUM RECOVERABLE BY THE INJURED
Choice is given: either (1) 40s. for each unauthorised performance; or (2) the amount of the benefit derived by the offender; or (3) the amount of injury sustained by the proprietor.
3 & 4 Wm. IV., c. 15.
18 Q.B.D. 625.
In the margin of the Act, the sum of 40s. is described as a "penalty." But it is not so in the common sense of the term. It was held in Adams v. Batley, and Cole v. Francis, that the section does not impose a penalty upon the offender so as to preclude the plaintiff, in an action to recover the specified
amount, from administering interrogatories to the defendant. "The word 'offender' is only used as a convenient expression, and is in no way meant to designate
Per Day, J.
a criminal. . . I am of opinion that this sum of 40s. is not a penalty."
This decision of the Queen's Bench Division was affirmed on appeal, when Lord Esher, M.R., said: "I see no characteristic of a penalty in this payment. I am of opinion that this case is not brought within any rule of law which prevents interrogatories from being administered to the defendant.”
The provision for double costs of suit has been repealed by 5 & 6 Vict., c. 97, s. 2.
When we come to discuss Musical Copyright in the following chapter, we shall find that important alterations in the law as to Penalties and Costs have been made by 45 & 46 Vict., c. 40, s. 4, and 51 & 52 Vict., c. 17, but only so far as musical compositions are concerned. For the unlawful representation of dramatic compositions, the provisions of the Act of William IV. are still in force.
3 & 4 Wm. IV., c. 15, S. 3.
LIMITATION OF ACTION.
All proceedings for offences under this Act must be brought within twelve calendar months next after the committing of the same.