Notes and Articles for Law students

User Tools

Site Tools


Protection of Copyright under Common Law

Copyright is the exclusive right of multiplying copies of a literary or artistic work already published.1) It is also defined as “the sole and exclusive liberty of printing or otherwise multiplying copies of any book;” and the term book is defined as “every volume, part or division of a volume, pamphlet, sheet of letter press, sheet of music, map, chart, or plan, separately published”.

This right is of two kinds, one existing by the Common law until he has published his work to the world at large2), and the other by statute after such publication. Previous to publication an author has absolute control over his own production, and this whether it be literary, artistic, or any other work.

A copyright exists in the following productions:

  1. Books.
  2. Letters.
  3. Lectures
  4. Dramatic copyright.
  5. Musical copyright.
  6. Unpublished works of art.


The copyright in every book published in the life-time of its author shall endure for the natural life of such author and for the further term of sixty years commencing at the time of his death, and shall be the property of such author and his assigns; provided that the copyright in every book published after the death of its author shall endure for the term of sixty years from the first publication thereof, and shall be the property of the proprietor of the author's manuscript, from which such work shall be first published, and his assigns

For an intellectual work to be capable of protection as copyright it is necessary that:

  1. It must be innocent; that is, it must not be
    1. Seditious or libellous (the libel being against the State).3)
    2. Immoral; e. g., a work bearing on the love adventures of a courtesan was not protected.4)
    3. Blasphemous; thus Lord Eldon refused protection to Lawrence's 'Lectures on Physiology,' as hostile to revealed religion, and the doctrine of the immortality of the soul.5)
    4. Fraudulent, or professing to be what it is not with intent to deceive.
  2. It must be of a literary value. The object of law is to protect ' a useful book,' though very little ' usefulness' or material value will suffice to obtain protection. As a general rule there is no copyright in advertisements and labels. Catalogues will be protected as copyright, unless they are merely a dry list of names.6) A proprietor of a trades directory has copyright in the headings.7) An illustrated catalogue of furniture was protected as to the illustrations, though it was held there was no copyright in the letter press, which was a simple announcement of the sale of goods which every one might sell and announce for sale. There cannot be any copyright in the title of a book except in very rare cases; and the remedy for its use by other people will be akin to that for Common law fraud.8)
  3. It must be original. A very small degree of originality is sufficient to constitute a person an author. There is copyright in independent translation of a non-copyright work9), and there is copyright in compilations as well.


Literary property can be invaded in three ways, and in three ways, only:

  1. Where a publisher in this country publishes an unauthorized edition of a work in which copyright exists, or where a man introduces to sell a foreign reprint of such a work, that is open Piracy.
  2. Where a man pretending to be the author of a book illegitimately appropriates the fruits of a previous author's literary labour, that is Literary larceny.
  3. There is another mode which is wholly irrespective of any copyright legislation, and that is where a man sells a work under the name and title of another man or another man's work. That is not an invasion of copyright; it is a Common law fraud, and can be redressed by Common law remedies.10)

Mere imitation is allowable, so is fair use of existing books, but not servile copying even though the copy be made for private use and not for sale.

In England, registration of a book at Stationers' Hall is a condition precedent to a right to sue for infringement of copyright. In India, the proprietor of a copyright can sue or proceed for an infringement of his copyright before having it registered.

Indian cases

The plaintiffs were the publishers and proprietors of a book entitled “The Golden Treasury of Songs and Lyrics,” and the defendants published the same selection of poems and songs, but altered their arrangement. It was held that such a selection could be the subject of a copyright because in the case of works not original in the proper sense of the terra, but composed of or compiled or prepared from materials which are open to all, the fact that one man has produced such a work does not take away from any one else the right to produce another work of the same kind, and in doing so to use all the materials open to him. But as the law is concisely stated by Hall, V. C, in Hogg v. Scott, the true principle in all these cases is that the defendant is not at liberty to use or avail himself of the labour, which the plaintiff has been at for the purpose of producing his work, that is, in fact, merely to take away the result of another man's labour or, in other words, his property.11) The plaintiff published a new Sanskrit work, introducing passages from old Sanskrit works and adding foot-notes. The defendant afterwards published an edition of the same work, which was substantially a copy of the plaintiff's book. Held, that the defendant had violated the plaintiff's copyright.12)


The defendant must account for each copy of his work sold as if it had been the plaintiff's, and pay the amount of profit which would have resulted from the sale of so many copies of the plaintiff's work.13)


The writer of a letter on his own behalf retains copyright in the letter, so as to hinder the receiver from publishing it, except under special circumstances. The receiver of a letter may publish the letter without the consent of the writer to use it as evidence in a Court of justice, or to prove his innocence of an injurious and unfounded imputation. It is not a sufficient justification of such publication that the recipient thinks it necessary for the purpose of vindicating his character.14)

Damages: The wrongful publication of private letters, manuscripts etc., being an invasion of the right of property, at least nominal damages may be always given; where there is shown to have been wrongful loss to the plaintiff; or gain to the defendant, the damages may be substantial; and where the publication was from motives of malice or insult the damages ought to be exemplary.


The author of a literary composition delivered as a lecture to a selected number or limited class of persons will, until he has published his lecture, have a Common law right to prevent publication of it by others.15) The understanding between him and his auditors being that they may avail themselves of what they hear for their own benefit, but not reproduce it for the outside public.16) So it has been held that the public performance of a play does not amount to its publication as a literary composition.17) On the other hand, a speech, sermon, address, or lecture, may be addressed to the public at large, and its delivery under such circumstances will be a publication depriving the author of any right at Common law and leaving him only his statutory copyright. A person who makes notes of a speech delivered in public, transcribes them, and publishes in a newspaper a verbatim report of the speech, is the “author” of the report within the meaning of the Copyright Act, and is entitled to the copyright in the report and can assign the copyright.18)

The interest which the author of a dramatic composition has in his work is of a two-fold nature. There is, first, the right of multiplying copies; the literary copyright, and, secondly, the more important right of performance and representation.

The author of a musical composition and his assigns have the sole right of performing such compositions in public.

Unpublished works of Art and Literature

The owner of a picture, engraving, drawing, photograph, sculpture, or other work of fine art, has a right before publication to prevent any copy being made of it.19) The painter of a picture has a right at Common law to restrain people from copying his picture, and he does not lose this right by exhibiting it to the public on the expressed or implied terms that they are simply to view and not to copy.20) So long as a man keeps his literary or artistic property unpublished to the world at large, any violation to the privacy which he chooses to maintain is a wrong. Copyright after publication rests exclusively on the statute law. Paintings, drawings and photographs are protected by statute.

Queen Victoria and Prince Albert had been in the habit of making etchings and drawings for their own amusement, and of having copies struck off from the etched plates by the workmen. They had no intention of publishing these works, and designed the copies for their private use and for presentation to a few intimate friends. The workman, they employed, struck off copies on his own account, and retained them; he afterwards parted with the collection he had thus formed, which finally came into the hands of one Mr. Strange, who proposed to exhibit it to the public and to publish a descriptive catalogue. Prince Albert applied for an injunction as to both the exhibition and the catalogue, and this was granted. On appeal, the Lord Chancellor laid stress also on the breach of trust in the workman who printed the copies in retaining some impressions for himself, and finally granted the injunction on both grounds, the right of property infringed and the breach of trust.21)

Where a person has been employed to copy a drawing, or to take a photograph, it is an abuse of confidence for him to publish, or sell or exhibit copies of such drawing or photo, and he will be restrained from doing so.22)

Indian case: An author or composer of any work unpublished or kept for his private use has a property in it : and to publish that work or composition without his consent constitutes a good cause of action. But if the writer of a document read it in Court in the course of litigation, and allow it to go upon the file, he deprives himself of all right to consider its contents in feature as his private property. All that is done by or said to a Judge in open Court is public, as well as to those who are absent as to those who happen to be present.23)

Jeffries v. Boosey
Exchange Telegraph Co. v. Gregory
Trade Auxiliary Co. v. Middlesborough
Stockdale v. Onwhyn
Lawrence v. Smith, Jacob
Holton v. Arthur
Lamb v. Evans
8) , 10)
Dicks v. Yates
Wyatt V. Barnard
MacMillan & Co. v. Suresh Chunder Deb
Gangavishnu v. Moreshwar
Pike v. Nicholas
Gee V. Prichard
Caird v. Sime
Nicols v. Pitman
Macklin V. Richardson
Walter v. Lane
19) , 20)
Turner v. Robinson
Prince Albert v. Strange
Tuck v. Priester
Leitner v. Plowden

Navigation: Home»Law of Torts