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No. 5. — Ex parte Hutchins and Romer, 4 Q. B. D. 484, 485.
About 1835 or 1836 two songs or poems, named respectively “Kathleen Mavourneen ” and “Dermot Astore,” were written by a Mrs. Crawford ; they were afterwards set to music by Crouch. By a deed made in 1843, between Crouch of the one part and T. D’Almaine and T. G. Mackinlay of the other, after reciting that Crouch had written certain musical compositions (which included “Kathleen Mavourneen” and “Dermot Astore"), and had agreed to sell them to D'Almaine and Mackinlay, he, for valuable consideration, assigned unto them “all the present and future vested and contingent copyright of him, the said F. W. N. Crouch, of and in the said books, pieces, or compositions of music, . . . and the sole and exclusive right and liberty of printing or otherwise multiplying copies thereof, and of every or any part thereof, and of publishing the same and every part thereof, under and by virtue of an Act of Parliament passed in the sixth year of the reign of her Majesty Victoria, intituled, 'An Act to amend the Law of Copyright, and under or by virtue of an Act of Parliament passed in the 54th year of the reign of his late Majesty, George III., intituled, “ An Act to amend the several Acts for the encouragement of learning by securing the copies and copyright of printed books to the Authors of such Books or their Assigns," and every or any preceding Act or Acts of Parliament, as also by common law or otherwise ; together with the sole and exclusive privilege of vending or causing the same books, pieces, or compositions of music, and every part thereof, and the copies thereof and of every part thereof, to be sold, and all other the estate, right, title, interest, property, contingency, possibility, benefit, claim, and demand whatsoever, both at law and in equity, of him, the said F. W. N. Crouch, of and in the said books, pieces, or compositions of music, and every part thereof; to have, hold, receive, take, and enjoy the said books, pieces, or compositions of music aforesaid and copyright, and all and singular other the premises hereby bargained, sold, and assigned, or intended so to be, * with their and every of their rights and priv- [* 485] ileges unto and by the said T. D'Almaine and T. G. Mackinlay their executors, administrators, or assigns, for their own absolute use and benefit in as full, ample, exclusive, and beneficial a manner to all intents and purposes, as he, the said F. W. N. Crouch, could or might have held or enjoyed the same in case these presents had not been made." All the interest of D’Almaine
No. 5. — Ex parte Hutchins and Romer, 4 Q. B. D. 485.
and Mackinlay in the two musical compositions afterwards vested in C. L. Hutchins and F. Romer. In August, 1878, Crouch assigned to J. F. Adams “the sole liberty of performing or singing, or causing or permitting to be performed or sung” the two musical compositions. J. F. Adams caused four entries, dated the 19th of September, to be made in the book of registry at Stationers' Hall, which in effect alleged that Crouch, as proprietor, had assigned to him the liberty of representation, and two others, dated the 21st of August, and stating that Crouch and Adams had agreed to except the benefits of 5 & 6 Vict. c. 45, for the extension of the term of liberty of performance.
C. H. Turner, for the appellant Adams. The Judges of the Queen's Bench Division were wrong in holding that 5 & 6 Vict. c. 45 1 did not confer any exclusive right to the perform
1 By 5 & 6 Vict. c. 45, s. 3, “The always that in all cases in which such copyright in every book which shall after copyright shall belong in whole or in the passing of this Act be published in part to a publisher or other person who the lifetime of its author shall endure shall have acquire it for other confor the natnral life of such author, and sideration than that of natural love and for the further term of seven years, com- affection, such copyright shall not be mencing at the time of his death, and extended by this Act, but shall endure shall be the property of such author and for the term which shall subsist therein his assigns: Provided always, that if the at the time of passing of this Act and no said term of seven years shall expire longer, unless the author of such book, before the end of forty-two years from if he shall be living, or the personal repthe first publication of such book, the resentative of such author, if he shall copyright shall in that case endure for be dead, and the proprietor of such copy: such period of forty-two years; and that right shall, before the expiration of such the copyright in every book which shall term, consent and agree to accept the be published after the death of its author benefits of this Act in respect of such shall endure for the term of forty - two book, and shall cause a minute of such years from the first publication thereof, consent in the form in that behalf given and shall be the property of the pro- in the schedule to this Act annexed to prietor of the author's manuscript from be entered in the book of registry herein. which such book shall be first published, after directed to be kept, in which case and his assigns."
such copyright shall endure for the full Sect. 4. “And whereas it is just to term by this Act provided in cases of extend the benefits of this Act to authors books to be published after the passing of books published before the passing of this Act, and shall be the property of thereof, and in which the copyright still such person or persons as in such minute subsists; be it enacted that the copyright shall be expressed." which at the time of passing this Act Sects. 2, 14, 20 (which incorporates shall subsist in any book theretofore pub- 3 & 4 Wm. IV.c. 15, and extends.its provilished (except as hereinafter mentioned) sions to musical compositions), and 22 are shall be extended and endure for the full set out or sufficiently referred to in a term provided by this Act in cases of note, ante, pp. 90, 91. books thereafter published, and shall be By 3 & 4 Wm. IV. c. 15, s. 1, "From the property of the person who at the and after the passing of this Act the time of passing of this Act shall be the author of any tragedy, comedy, play, proprietor of such copyright: Provided opera, farce, or any other dramatic piece No. 5. - Ex parte Hutchins and Romer, 4 Q. B. D. 486, 487.
ance of * musical compositions published before it was [* 486] passed. Their attention was perhaps insufficiently directed to s. 20, which incorporates 3 & 4 Wm. IV. c. 15, and extends it to musical compositions. 5 & 6 Vict. c. 45 has a retrospective effect, and as the musical compositions in question were written less than ten years before it was passed, Adams is entitled, under the assignment of August, 1878, to the sole liberty of performance. Perhaps it was unnecessary to register it; but the registration rendered * the proof of Adams's title [* 487] more easy. For the respondent's reliance may be placed upon the deed of 1843, whereby Crouch purported to grant to D'Almaine and Mackinlay the copyright of the musical compositions ; but this was insufficient to pass the right of performance, for no entry was made in the registry book as required by 5 & 6 Vict. c. 45, s. 22; and even if the entry be not requisite the assignment being by deed, the right of performance is not expressly mentioned, and it cannot pass under the general words, for they are governed by the rule as to verba ejusdem generis, and can refer only to the incidents of the copyright mentioned in the operative words. Reg. v. Cleworth, 4 B. & S. 927 ; S. C. sub nom. Reg. v. Silvester, 33 L. J. M. C. 79. The counsel for the respondents may rely upon Lacy v. Rhys, 4 B. & S. 873; 33 L. J. Q. B. 157, but in that case the “ acting right” was expressly assigned. At all events Adams is entitled to retain the entries dated the 21st of August, 1878; they were made in order to
or entertainment composed and not years before the passing of this Act by printed or published by the author thereof the author thereof or his assignee, or or his assignee, or which hereafter shall which shall hereafter be so printed and be composed, and not printed or published published, or the assignee of such author by the author thereof or his assignee, shall
, from the time of passing this Act, or the assignee of such author shall have or from the time of such publication reas his own property the sole liberty of spectively until the end of twenty-eight representing or causing to be represented years from the day of such first publicaat any place or places of dramatic enter. tion of the same, and also if the author. tainment whatsoever in any part of the or authors, or the survivor of the authors, United Kingdom of Great Britain and shall be living at the end of that period, Ireland, in the Isles of Man, Jersey, and during the residue of his natural life, Guernsey, or in any part of the British have as his own property the sole liberty dominions, any such production as afore- of representing or causing to be represaid, not printed and published by the sented the same at any such place of author thereof or his assignee, and shall dramatic entertainment as aforesaid, and be deemed and taken to be the proprietor shall be deemed and taken to be the thereof; and the author of any such pro- proprietor thereof.” duction, printed and published within ten
No. 5. — Ex parte Hutchins and Romer, 4 Q. B. D. 487, 488.
extend the period of copyright pursuant to the proviso in 5 & 6 Vict. c. 45, s. 4.
[BRAMWELL, L J. That proviso is not in point; no copyright subsisted in these musical compositions when that Act was passed; and if the deed of 1843 effectually assigned the liberty of performance, Adams could not acquire it from Crouch in 1878.]
F. W. Raikes, for the respondents Hutchins and Romer. It is submitted that 5 & 6 Vict. c. 45, is not retrospective, and that the ground of the decision in the Queen's Bench Division was right; the statute is of a penal nature and ought to be construed strictly. If, however, this contention cannot be sustained, then it is submitted that by the deed of 1843 the liberty of performance was effectually vested in D'Almaine and Mackinlay ; s. 22 relates to assignments by entry in the registry book; it was not intended to apply to assignments by deed.
C. H. Turner, replied.
BRAMWELL, L. J. I think that the order of the Queen's Bench Division must be affirmed, but not upon the ground upon which this case was decided by that Court. The construction of 5 & 6 Vict. c. 45 was not properly brought before the Judges of the
Queen's Bench Division, and somehow the force of s. 20 [* 488] seems to * have escaped notice. That enactment has
manifestly a retrospective effect, for it incorporates 3 & 4 Wm. IV. c. 15, and extends its benefits to musical compositions. It has been argued that the statute ought not to be construed retrospectively, because it is of a penal nature; but the answer is that it does not inflict penalties for acts done before it was passed. I think, therefore, that the view of the Queen's Bench Division as to whether the statute was retrospective cannot be maintained. The decision, however, must be affirmed upon the ground that at the time when the entries sought to be expunged were made, Crouch had parted with his interest in the musical compositions. It may be that there is a difference between a book and the right to perform a musical composition: the former is a chattel, the latter does not exist in a material shape. The question turns upon the language of the deed made in 1843; the copyright in the songs is assigned together with all “interest, property, contingency, possibility, benefit,” in the musical compositions. I think that the right to perform the musical compositions was included in the words “interest, property, benefit;
No. 5. - Ex parte Hutchins and Romer, 4 Q. B. D. 488, 489.
for Crouch was the only person who could license their perform
These words are very general, and no doubt were intended to have a wide operation ; we are now asked to limit their meaning. I do not think that we ought to do so. The entries in the Book of Registry must be expunged. I wish to add that owing to 5 & 6 Vict. c. 45, s. 22, perhaps Cumberland v. Planché, 1 A. & E. 580, is not now law; but here other words than “copyright” are used.
BRETT, L. J. I think that the statute 5 & 6 Vict. c. 45, is retrospective: by s. 20 it incorporates 3 & 4 Wm. IV. c. 15, and extends its provisions to musical compositions. The latter Act applies to dramatic pieces published ten years before it was passed, and therefore, even if 3 & 4 Wm. IV. c. 15 is to be considered as enacted with reference to musical compositions only from the 1st of July, 1842, when 5 & 6 Vict. c. 45 was passed, it will apply to the musical compositions“ Kathleen Mavourneen," and “ Dermot Astore,” which were composed within ten years before the 1st of July, 1842. Sect. 28 of 5 & 6 Vict. c. 45 was intended * to preserve contracts and obligations pre- [* 489] viously entered into, and does not extend to this case. Therefore 5 & 6 Vict. c. 45 has a retrospective effect with regard to musical compositions, and the ground of the decision in the Queen's Bench Division was erroneous; but the order appealed from must be upheld, because in 1868 when Crouch purported to assign the liberty of performance he was not the proprietor of it; for before he assumed to pass the liberty, of performance to Adams, he had granted it to D’Almaine and Mackinlay, through whom Hutchins and Romer claim. By the statutes relating to copyright a distinction has been drawn between the liberty of performing a dramatic piece or musical composition and the copyright in the book containing it, and we are bound to assume that this was done intentionally. The question turns upon the construction of the deed made in 1843; by the operative words Crouch sold and assigned to D'Almaine and Mackinlay the copyright in the musical compositions, and the sole and exclusive right of multiplying copies thereof together with the exclusive privilege of selling the same, “and all other the estate, right, title, interest, property, contingency, possibility, claim, and demand whatsoever, both at law and in equity," of Crouch. In my opinion the right to exclusive performance passed under the