Sivut kuvina
PDF
ePub

extended to the inventors of prints and engravings, for the term of eight and twenty years, by the statutes 8 Geo. II.

[ocr errors]

fraud on the author's property; but, publication is allowable, (Dodsley v.
where the character of the publication Kinnersley, Ambl. 403; Gyles v. Wil.
is such that no damages could be re- cox, Barnard. Cha. Rep. 368; Bell v.
coveredin respect thereof at law, equity Walker & Debrett, 1 Br. 451; Whit-
will refuse to interpose. (Lawrence v. tingham v. Wooler, 2 Swanst. 431,)
Smith, Jacob's Rep. 472 ; Walcot v. yet a colourable abstract will be re-
Walker, 7 Ves. 2; Southey v. Sher- strained. (Butterworth v. Robinson,
wood, 2 Meriv. 440 ; Lord and Lady 5 Ves. 709; Carnan v. Bowles, 1 Cox,
Percival v. Phipps, 2 Ves. & Bea. 26 ; 285; Macklin v. Richardson, Ambl.
Gee v. Pritchard, 2 Swanst. 415.) 696 ; Gyles v. Wilcox, 2 Atk. 142.)
The plaintiff must also, in order to No property can be acquired in any
entitle him to an injunction, show article copied, in the same language,
the property in the pirated work to from a prior work; (Barfield v. Ni.
be clearly vested in himself; either cholson, 2 Sim. & Stu. 1;) but a trans-
as the author, or as an assignee, for lation is as much entitled to protec-
his own benefit, or in trust for others : tion as an original production. (Wyatt
and this interest must be distinctly v. Barnard, 3 Ves. & Bea. 78.)
stated in the bill ; for, the injunction Forms of indictments, it has been
ought to be warranted by what ap- decided, cannot be the subjects of
pears in the bill, not by what is copyright, nor can a statement of the
brought forward merely by affidavit. evidence necessary to support indict-
(Nicol v. Stockdale, 3 Swanst. 689.) ments, and subjoined thereto, be so

The collection of materials may appropriated. And, further, though
establish a claim to copyright in a an author, after the publication of
work, notwithstanding the subject one or more editions of his work, sells
may be obvious to all mankind ; and the copyright, with an undertaking to
an injunction will issue to stop the prepare and edit the subsequent edi-
publication of a work which is a ser- tions of the work, at a fixed price, he
vile copy of a preceding one, with may publish any new matter on the
merely colourable alterations. (Mat. same general subject, in a separate
thewson v. Stockdale, 12 Ves. 273, publication on his own account; not-
276; Butterworth v. Robinson, 5 Ves. withstanding the insertion of such
709; Tonson v. Walker, 3 Swanst. new matter in the subsequent editions
679.) The case would be different if of the work of which he has sold the
the new work contained, not only copyright may be absolutely neces-
alterations, but corrections and im. sary to their proper completion.
provements of the original work ; (Sweet v. Archbold, so held by the
(Cary v. Faden, 5 Ves. 26 ;) and such Vice Chancellor, in Hil. T. 1828, and
additions and corrections may pro- by the Lord Chancellor during the
perly be made the subject of copy- sittings after that Term.)
right. (Cary v. Longman & Rees, 1 No one who chooses to copy and
East, 380.) But, it will not be per- publish a specification of patents, can
mitted that one man should, under thereby acquire a right to restrain
pretence of quotation, in fact publish another from copying the same ; for
another's work, and defraud him of these are common property. (Wyatt
the fruit of his labours : (Wilkins v. v. Barnard, 3 Ves. & Bea. 78.)
Aikin, 17 Ves. 424 :) for, although When a plaintiff has permitted re-
an abstract or fair abridgment of a peated infringements of his copyright,

[ocr errors][ocr errors]

c. 13, and 7 Geo. III. c. 38, besides an action for damages, with double costs, by statute 17 Geo. III. c. 57 (13). All which parliamentary protections appear to have been suggested by the exception in the statute of monopolies (14),

[ocr errors]

for a length of time, equity will not file a separate bill against each bookinterfere (by injunction, at any rate, seller taking copies of a spurious edi. whether it may be proper to direct an tion for sale ; for, there is no privity account to be kept or not,) before the between such parties, and the defendright is determined at law. (Platt v. ants may justify their several acts upon Button, 19 Ves. 448; Rundell v. totally dissimilar grounds. (Dilly v. Murray, Jacob's Rep. 316.)

Doig, 2 Ves.jun. 487; Berkev. Harris, Whether the act of publication Hardr. 337.) abroad kes a work, at once, publici In cases of alleged piracy of literary juris, may be very questionable ; but property, a reference is usually di. there can be no doubt that, where an rected to the Master; ( author prints and publishes abroad Leadbetter, 4 Ves. 681; Nicol v. only, or where he does not take Stockdale, 3 Swanst. 689 ;) but, in prompt measures to publish here, he order to save expense, the court itcannot, after a reasonable time for self will sometimes compare the two his publishing here has elapsed, and works. (Whittingham v. Wooller, 2 after some other person, in the re- Swanst. 431.) gular and fair course of trade, has Parts of this note and the next are published the work in this country, extracted from 2 Hovenden on Frauds, sustain an injunction against such 147, 152. person. (Clementi v. Walker, 2 Barn.

As to the kind of prerogative copy& Cress. 866,870; 4 D. & R. 603, S.C. right subsisting in certain publica

A parol assignment of the copy- tions, as bibles, liturgies, acts of parright of a work may not be sufficient, liament, proclamations, and orders of perhaps, to give the assignee the pri. council, see post, p. 410. vileges conferred by the legislature (13) Mr. Christian observes, that upon the author. (Power v. Walker, “ the principal differences in these 3 Mau. & Sel. 9.) But, when a pub- three statutes concerning prints, seem lisher has been induced by such as- to be these : the 8 Geo. II. gives an signment, to employ his capital and exclusive privilege of publishing to attention upon a work, withdrawing those who invent or design any print, them from other matters in which for fourteen years only; the 7 Geo. they might possibly have been more III. extends the term to twenty-eight profitably employed; and when the years absolutely, to all who either author has acquiesced in seeing his invent the design or make a print parol assignment acted upon for a from another's design or picture; and length of time; a court of equity, those who copy such prints within even if it acknowledged the author's that time, forfeit all their copies, to strict right, would probably think his be destroyed, and five shillings for conduct entitled him to no summary each copy; the 17 Geo. III. gives relief by injunction, and would leave the proprietor an action to recover him to such remedy as he might have damages and double costs for the ina at common law. (Rundell v. Murray, jury he has sustained by the violation Jacob's Rep. 316.)

of his right.” The proprietor of a copyright must (14) See Vol. IV. p. 159, VOL. II.

R R

21 Jac. I. c. 3, which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the sole working or making of the same; by virtue whereof it is held, that a temporary property therein becomes vested in the king's patentee (k) (15).

(k) 1 Vern. 62.

(15) When the crown, on behalf of (Williams v. Williams, 3 Meriv. 160:) the public, grants letters patent, the if, therefore, the specification of a grantee thereby enters into a contract patent be not so clear as to enable all with the crown, in the benefit of the world to use the invention, and which contract the public are partici. all persons of reasonable skill in such pators; under certain restrictions, matters to copy it, as soon as the affording a reasonable recompence to term for which it has been granted is the grantee, the use of his invention, at an end, this is a fraud upon the improvement, and employment of public, and the patent cannot be suscapital, is communicated to the pub- tained. (Newbury v. James, 2 Meriv. lic. If any infringement of a patent 451 ; Ex parte Fox, 1 Ves. & Bea. be attempted, after there has been an 67 ; Turner v. Winter, 1 T. R. 605 ; undisputed enjoyment by the patentee Harmer v. Plane, 11 East, 107.) But, under the grant for a considerable by the statute of 5 & 6 Gul. IV. c. 83, time, courts of equity will deem it a a patentee may, before his specificaless inconvenience to issue an injunc- tion is disputed by action or suit, tion until the right can be determined enter with the clerk of the patents at law, than to refuse such preventive (having first obtained the attorney interference, merely because it is pos. general's sanction,) a disclaimer or sible the grant of the crown may, alteration of any part of the specifiupon investigation, prove to be in- cation, stating the reason for such valid. Such a question is not to be disclaimer or alteration, which, proconsidered as it affects the parties on vided they do not go to extend his the record alone ; for, unless the in- exclusive right, shall be deemed part junction issues, any person might vio- of the letters patent: but any person late the patent, and the consequence may enter a caveat against the admiswould be, that the patentee must be sion of any such disclaimer or altera. ruined by litigation. (Harmer v. tion. Plane, 14 Ves. 132; Universities of The enrolment of a patent cannot Oxford and Cambridge v. Richardson, be dispensed with, upon the ground 6 Ves. 707 ; Williams v. Williams, that, if the specification is made pub. 3 Meriv. 160.) But, if the patent be lic, foreigners may take advantage a very recent one, and its validity is of the invention ; for, the king's subdisputed, an injunction will not be jects have a right to see the specifigranted before the patentee has esta- cation : (Ex parte Koops, 6 Ves. 599:) blished his legal right. (Hill v. nor can the date of a patent be alterThompson, 3 Meriv. 624.)

ed after it is once sealed, in order to The grant of a patent, as already enlarge the time (four months) allowed stated, is in the nature of a purchase by the statute for the enrolment of for the public, to whom the patentee specifications; even though the case is bound to communicate a free parti. may be a hard one, and the delay has cipation in the benefit of his invention, arisen from innocent misapprehenat the expiration of the time limited : sion. (Ex parte Beck, 1 Br. 577; Ex parte Koops, ubi supra.) And, if a old machine ; though a patent may be patentee seek, by his specification, obtained for such improvements; yet, more than he is strictly entitled to, if the public choose to use the original his patent is thereby rendered ineffec- machine, without the improvements, tual, even to the extent to which he

they may do so without any restriction, would otherwise be entitled ; unless at the expiration of the original grant; he has brought himself within the

if the public will abstain from the use benefit of the statute of 5 & 6 Gul. IV. of the first invention, in consideration c. 83. (Hill y. Thompson, 3 Meriv.

of the superior advantages of the im629 ; Harmer v. Plane, 14 Ves. 135.) proved instrument, it is well; but the

When a person has invented certain choice must be left open. (Harmer v. improvements upon an engine, or Plane, 14 Ves. 134.) other subject, for which a patent has A man may have obtained a patent been granted, and those improvements for what he fully believed to be an cannot be used without the original original invention, but which, in fact, engine ; at the expiration of the pa- some other person may have discotent for such original engine, a patent vered or used before. In such case, may be taken out for the improve- the king may refer the matter to the ments ; but, before that time there judicial committee of the privy councan be no right to make use of the cil, and if they advise it, the letters substratum protected by the first pa- patent may be confirmed. (Stat. 5 & tent. (Ex parte Fox, 1 Ves. & Bea. 6 Gul. IV. c. 83, s. 2.) By the fourth 67.) And, where industry and inge- section of the said statute, the term nuity have been exerted in annexing of a patent may, in special cases, be to the subject of a patent, improve- prolonged for a term not exceeding ments of such a nature that their seven years beyond the time fixed by value gives an additional value to the the original grant.

408

CHAPTER XXVII.

OF TITLE BY PREROGATIVE AND FORFEITURE.

II. By prerogative

to tributes, taxes, and customs payable to the crown.

A second method of acquiring property in personal chattels is by the king's prerogative : whereby a right may accrue either to the crown itself, or to such as claim under the title of the crown; as, by the king's grant, or by prescription, which supposes an ancient grant.

Such in the first place are all tributes, taxes, and customs, whether constitutionally inherent in the crown, as flowers of the prerogative and branches of the census regalis, or ancient royal revenue, or whether they be occasionally created by authority of parliament; of both which species of revenue we treated largely in the former volume (1). In these the king acquires, and the subject loses, a property, the instant they become due: if paid, they are a chose in possession; if unpaid, a chose in action. Hither, also, may be referred all forfeitures, fines, and amercements due to the king, which accrue by virtue of his ancient prerogative, or by particular modern statutes : which revenues created by statute do always assimilate, or take the same nature, with the ancient revenues; and may, therefore, be looked upon as arising from a kind of artificial or secondary prerogative. And, in either case, the owner of the thing forfeited, and the person fined or amerced, lose and part with the property of the forfeiture, fine, or amercement, the instant the king or his grantee acquires it.

*In these several methods of acquiring property by prerogative, there is also this peculiar quality, that the king can

[*409 ] The king cannot have a joint

(1) See Vol. I. pp. 281–337.

« EdellinenJatka »