Act, the rights of authors of musical compositions were extended. By the interpretation clause the word "book" was made to include every sheet of letterpress and sheet of music, and the words "dramatic piece" were made to include every scenic, musical, or dramatic entertainment.

The 20th section of that Act is as follows. [His Lordship read the section as set out above:-)

By this section musical compositions of every kind were brought within this and the former Act, and the author of them acquired the double right before referred to, viz., first, that of copyright proper in the piece itself as a book; continuing (in the case of every book published after the passing of the Act in its author's lifetime) until the expiration of seven years from the death of the author, or forty-two years from the first publication of the book, whichever period should be the longer; and second, that of acting right or performing right, continuing until the expiration of the seven years from the death of the author or forty-two years from

the first public representation or performance of the piece, [239] whichever should be the longer. These rights are quite distinct, each being a separate property, and each capable of being assigned without the other; and they would or might expire at different times, except in the case of the book being first published, and the piece being first publicly performed on the same day.

Now, it is contended for the defendant, that the fact of the publication for sale of a musical composition as a book prevents the subsequent acquisition or enjoyment of the acting or performing right. Why should it do so? It is said that no one would buy such a piece if the purchaser could not use the piece he paid. for, and therefore that the sale of the piece necessarily carries with it the right to make such use of it as the purchaser thinks fit. But this consequence does not follow; for it is only the performance of the piece in public, that under the section I have just read the existence of the acting or performing right prevents; and it is obvious that the greater number of sales of musical pieces take place to persons for private use and without having any public performance in contemplation.

In the next place, I think, that if the publication of a musical composition as a book before the piece had been publicly performed prevented the subsequent acquisition of any acting or

No. 4. — Chappell v. Boosey, 21 Ch. D. 239, 240.

performing right, it must follow that the publication of the same composition as a book at any time after the piece had been publicly performed, would from that time forward put an end to any acting or performing right in the piece existing prior to such publication, for the reasons existing in the former case would be of equal weight in the latter. If so, the defendant's contention comes in short to this, that the enjoyment of, or the power of acquiring, the acting or performing right is determined by the publication of the book at any time; and the author must choose whether he will abstain from publishing the book, and thus be unable to reap the benefit of the copyright therein which the Act confers upon him, in which case he can enjoy the acting right; or whether he will publish the book, and lose thereby the acting or performing right. I cannot find anything in the Act, or in reason, to support this contention. Definite periods of duration for the two rights are given by the Act, and I cannot come to

*

the conclusion that those periods are cut short by any [* 240] conditional limitation unless it can be found in the Act

itself, and I have not had pointed out to me nor have I discovered any words pointing to that conclusion.

But the case does not rest here. The Act does, in my opinion, directly show upon its face that the publication of the piece as a book does not prevent the continuance of the acting or performing right. The 22nd section of the Act is as follows. [His Lordship read the section as above set out.] That section recognises the two rights as existing simultaneously, and I think it impossible for me to read that section as confined to the case of books which have not been published. I read the word "book" there as including books published as well as unpublished; especially when I see that the section provides for an entry in the registry book of the assignment, and this implies that the copyright referred to by the section has already been registered, and registration under the Act can only take place after publication, the date of which must appear in the first entry in the registry book. Moreover, I think that the word "assignee" in that section. must receive the same construction as the word "assign" in the interpretation clause, by which that word is made to include every person in whom the interest of an author in copyright is vested, whether derived from the author before or after the publication of the book.

VOL. IX. - - 57

Before passing from that section, I would mention that it appears to have been framed to obviate the consequences of the decision in Cumberland v. Planché, 1 Ad. & E. 580, which case held that an assignment of the copyright in a dramatic piece had the effect of assigning the acting right also. In that case the piece had been already printed and published, and, therefore, if the contention of the present defendant is sound, the acting right, which was the subject of the decision, had no existence in fact. This point does not seem to have occurred to Sir F. Pollock or Sir James Scarlett, who argued the case, or to any of the four Judges who decided it.

In coming to the conclusion above expressed as to the [* 241] present state of the law, which is at variance with that propounded in the Digest before referred to, I think that the Digest shows how the error, which in my opinion exists in it, has arisen. The 14th article, which I have read, has a note to it to the effect that the proposition contained in it seems to be involved in the 1st section of the Act 3 & 4 Will. IV. c. 15, the effect of which was given in the 13th article. The 13th article says, to put it shortly, that the author of any dramatic piece or musical composition not printed and published by the author has the sole right of representing the piece for the periods therein mentioned. If this were the whole of the 1st section of that Act, and no other section or statute bore upon the subject, it would be difficult to find fault with the conclusions arrived at in the 14th article; as, if the performing right were the mere creature of the statute, and the statute created it only in the case of pieces not printed and published, it would follow that it could not be acquired in pieces which had already been printed and published. But the statute provided, as I have already pointed out, for two different cases, namely, first, for the case of pieces not printed or published; and secondly, for that of pieces printed and published after the passing of that Act, or within ten years before its passing; and the Digest seems, for some reason which I do not understand, to ignore this second case altogether.

With respect to the 16th article of the Digest, that "a dramatic piece or musical composition published as a book may (it seems probable) be publicly represented without the consent of the author or his assigns," I confess my inability to agree with it. It is stated in a foot-note by the learned author of the Digest

No. 4. Chappell v. Boosey, 21 Ch. D. 241, 242.

- Notes.

that the only authority he has been able to find on the point is that of Murray v. Elliston (p. 868, ante), 5 B. & Ald. 657 (24 R. R. 519), which seems to imply the proposition contained in the article. But that case was decided in the year 1822, many years before the passing of the Act 3 & 4 Will. IV. c. 15, which Act was the first to create an acting right, and was intended to alter and amend the law which existed when the case of Murray v. Elliston was decided. If that case had been decided after the Act instead of before it, the decision must have been the other way; unless, indeed, it had been held that the alterations made [* 242] in adapting the piece for the stage had rendered it a new work, in which case it would not have been any authority for the proposition contained in article 16.

Under these circumstances I allow the demurrer in the usual

manner.

ENGLISH NOTES.

The distinction between the exclusive right to dramatic or musical representation and copyright in a book is further exemplified by the case of Clark v. Bishop (1872), 25 L. T. 908. The plaintiff was the assignee of the right to perform a certain comic song. The plaintiff had never registered the song nor published it otherwise than by singing it in character on a music-hall platform. The defendant had, without the consent of the plaintiff, printed and published the song in a penny book. The plaintiff having obtained a verdict with £10 damages, the defendant moved to set it aside on the ground that the plaintiff had published the song within the meaning of the Act 5 & 6 Vict. c. 45, (which by s. 20 extended the protection of the Act of 3 & 4 Will. IV. c. 15, to "musical compositions," and extended the duration of the term. of protection to a dramatic piece or musical composition so as to be the same as that given by the Act of Victoria to a " book "), and had not registered it within the Act. The Court, by a majority, held that the plaintiff's song was not a "book" within the meaning of the Act 5 & 6 Vict., but a "dramatic piece" or "musical entertainment," and that it did not require registration within sect. 24 of the Act, which applied to "books "only. The decision was however confined to the point raised as to the registration, and the Judges guarded themselves from saying that the publication as a book was an infringement, a point which, as KELLY, C. B., observed, seems to have been evaded at the trial.

No. 5.

-Ex parte Hutchins and Romer, 4 Q. B. D. 483, 484. — Rule.

No. 5.

- EX PARTE HUTCHINS AND ROMER.

(C. A. 1879.)

RULE.

ALTHOUGH Copyright (properly so called) and the exclusive right of representation or public performance in a musical composition are distinct and separate rights, the assignment by the author of a song, of his copyright, and also "the sole and exclusive liberty of printing and publishing the same, . . . and all other his estate, right, title, interest, property, &c.," in the composition, transfers the right of representation as well as the copyright properly so called.

[483]

Ex parte Hutchins and Romer.

4 Q. B. D. 483-490 (s. c. 48 L. J. Q. B. 505; 41 L. T. 144; 27 W. R. 857).

The Act 5 & 6 Vict. c. 45 (which by s. 20 incorporates 3 & 4 Wm. IV. c. 15, and extends its provisions to musical compositions), confers an exclusive right to the performance of musical compositions published within ten years before the passing of the Act.

Within ten years before the passing of 5 & 6 Vict. c. 45, C. set to music two songs, and in 1843, after the passing of that statute, he by deed assigned to D. and M. his "copyright" in the two musical compositions, together with all "property" and "benefit" therein. The interest of D. and M. in the musical compositions afterwards vested in H. & R. In 1878 C. purported to assign to A. "the sole liberty of performing or singing, or causing or permitting to be performed or sung," the musical compositions. A. thereupon caused entries to be made in the register at Stationers' Hall, representing him to be the sole proprietor of the liberty of performing the musical compositions:

Held, upon motion by H. & R., that the entries must be expunged; for C., by the deed made in 1843, had granted the sole liberty of performing the musical compositions to D. & M., and therefore could not in 1878 grant it to A.

Appeal of J. F. Adams from an order of Cockburn, C. J. and MELLOR, J., expunging certain entries in the book of [* 484] registry* kept at the hall of the Stationers' Company. The facts are set out in the report of the proceedings before the Queen's Bench Division (4 Q. B. D. p. 90), and it is only necessary to state here the following circumstances: