Section IV The Employer
Under Section 18.—An employer is ab initio entitled to the copyright when he employs an author within the meaning of and subject to the conditions imposed by section 18. Section 18338 enacts that—
“When any publisher or other person shall before or at the time of the passing of the Act have projected, conducted, and carried on, or shall hereafter project, conduct, and carry on, or be the proprietor of any encyclopædia, review, magazine, periodical work, or work published in a series of books or parts, or any book whatsoever, and shall have employed or shall employ any persons to compose the same in any volumes, parts, essays, articles, or portions thereof for publication in or as part of the same, and such works, volumes, parts, essays, articles, or portions, shall have been or shall hereafter be composed under such employment on the terms that the copyright therein shall belong to such proprietor, projector, publisher, or conductor, and paid for by such proprietor, projector, publisher, or conductor, the copyright in every such encyclopædia, review, magazine, periodical work, and work published in a series of books or parts, and every volume, part, essay, article, and portion so composed and paid for shall be the property of such proprietor, projector, publisher, or other conductor, who shall enjoy the same rights as if he were the actual author thereof, and shall have such term of copyright therein as is given to the authors of books by this Act; except only that in the case of essays, articles, or portions forming part of and first published in reviews, magazines, and other periodical works of a like nature, after the term of twenty-eight years from the first publication thereof respectively, the right of publishing the same in a separate form shall revert to the author for the remainder of the term given by this Act: provided always that during the term of twenty-eight years the said proprietor shall not publish any such essay, article, or portion separately or singly without the consent previously obtained of the author thereof or his assigns: provided also that nothing herein contained shall alter or affect the right of any person who shall have been or who shall be so employed as aforesaid to publish any such his composition in a separate form, who by any contract, express or implied, may have reserved or may hereafter reserve to himself such right; but every author reserving, retaining, or having such right, shall be entitled to the copyright in such composition when published in a separate form, according to this Act, without prejudice to the right of such proprietor, projector, publisher, or conductor, as aforesaid.”
The nature of a proprietor’s rights in the articles contributed to his periodical under section 18 is well summarised by Chitty, J., as follows:
“This 18th section when fairly examined comes to this: the author of a literary work is the proprietor of the copyright under the general sections of the Act. If it is unpublished matter, probably the better term is to say that his right is to prevent any one else from publishing. If it is published matter, then his right is a true copyright, and it is to prevent anybody else from multiplying copies, and that right is vested in him.... Then comes this 18th section, the short effect of which is to transfer for a limited period a portion of the copyright to the proprietor of the periodical for whom the article has been composed; it being a condition that there shall not only be a composition of the article on the terms that it shall belong to the proprietor or publisher, but also that the sum agreed to be paid has been paid.”339
Scope of Section.—In some of the earlier cases it seems to be suggested that section 18 applies only to works of a periodical nature.340 But this gives no meaning to the words “or any book whatsoever,” which surely could not be construed as including only books ejusdem generis as periodicals. The first part of the section appears to include all books if produced under the conditions as to employment and payment there enacted.341 The judgment in Shepherd v. Conquest342 suggests that in the opinion of the Court in that case section 18 did not apply when the performing right in a play was claimed by the proprietors of a theatre, the play having been produced by a “stock author” in their employment. It is difficult to see why section 18 should not be equally applicable to the performing right as to the copyright. Section 20 of 5 & 6 Vict. c. 45 provides that—
“The provisions hereinbefore enacted in respect of the property of such copyright and of registering the same shall apply to the liberty of representing or performing any dramatic piece or musical composition as if the same were herein expressly re-enacted and applied thereto, save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent in the construction of this Act to the first publication of any book.”
Under such Employment.—The author must be “employed” and the work must be composed “under such employment.” It appears therefore that a work or part of a work would not come within this 18th section unless actually executed in the course of the author’s employment by the proprietor. In other words, there must be antecedent employment.343 A contribution voluntarily sent to a magazine would not, even although accepted and paid for on the terms that the copyright should belong to the proprietors, come under the provisions of section 18. It is submitted that it would become the sole property of the proprietor of the magazine for all purposes without any reservation of the right of separate publication to the author.344
If A employs B, who in his turn employs C, the copyright will vest in A if B acted as a mere agent for A. Thus in Stubbs v. Howard,345 Stubbs employed the Mercantile Press to obtain the necessary information for their Gazette, and the Mercantile Press employed P. to collect and compile. It was held that the copyright vested ab initio in Stubbs under section 18. But if A employs and pays B to do certain literary work, and B, of his own authority, employs and pays C, D, and E to do certain portions of it, it is doubtful whether the copyright in these portions will vest in A under section 18. The author has been neither employed nor paid by the proprietor of the work since B acted not as an agent for him, but as an independent contractor.346 The operation of section 18 seems to be exhausted in the first employment.
“On the terms that the copyright therein shall belong to such proprietor.”—The terms may be implied from the nature of the employment and the circumstances under which the work is composed. In Sweet v. Benning347 various members of the bar had furnished reports of cases to the plaintiffs, the proprietors of the Jurist. The reporters selected what cases they thought fit to report and were paid for their work. The arrangements were entirely oral, and nothing seems to have been said about copyright. The Court of Common Pleas held that the proprietors of the Jurist became the owners of the copyright under the 18th section. Maule, J., in support of his opinion said:
“When a man employs another to write an article or to do anything else for him, unless there is something in the surrounding circumstances or in the course of dealing between the parties to require a different construction, in the absence of a special agreement to the contrary, it is to be understood that the writing or other thing is produced upon the terms that the copyright therein shall belong to the employer.”
In Trade Auxiliary v. Middlesborough348 the proprietors of Stubbs’ Weekly Gazette and two other weekly papers jointly employed on salary two men to examine the official records and extract the particulars of bills of sale and deeds of arrangement registered in accordance with the Acts. The information so obtained was published in the weekly papers. It was held that the proprietors of the respective papers became owners of the copyright under section 18. In Lamb v. Evans349 the plaintiff employed and paid several persons in canvassing for advertisements and arranging them under appropriate headings in a Trades Directory. Lindley, L. J., in giving judgment, said he thought that—
“The burthen of proof was on the plaintiff to show that the headings were composed upon the terms that the copyright therein should belong to him; but the statute does not say anything about the kind of evidence which is to be adduced for the purpose of proving that an article has been composed on these terms.... If there is no express agreement the question is, what is the inference to be drawn from the circumstances of the case. In drawing the inference regard must be had to the nature of the articles which are here merely the headings to groups of advertisements with translations, and the view expressed by Mr. Justice Maule in Sweet v. Benning350 may be very safely acted upon, viz. that primâ facie at all events you will infer, in the absence of evidence to the contrary, from the fact of employment and payment that one of the terms was that the copyright should belong to the employer. That is not a necessary inference; but in a case of this sort, where any other inference would be unbusinesslike, I should not hesitate myself to draw that inference.”
Bowen, L. J., in the same case, says:
“From where are you to collect the terms? You may collect them from what passed between the parties, that is to say between the plaintiff and the persons whom he employed, but you may also collect them from the nature of the business itself, and it seems to me to be impossible as a matter of business to suppose that these headings were composed and furnished to the plaintiff upon any other terms than that he was to have the copyright in them, because otherwise those who composed them having furnished them to the plaintiff might themselves have published them and defeated his object.”
On the other hand in Walter v. Howe,351 Jessel, M. R., held that the Times could not sue in respect of a biography of Lord Beaconsfield which had appeared in their columns. There was evidence that the author had been paid for his literary services, but there was apparently no evidence as to whether he had been “employed” “on the terms that the copyright should belong” to the plaintiff. Notice that in this case no antecedent employment whatsoever is shown. In Johnson v. Newnes352 a series of stories were contributed to the Weekly Dispatch under an arrangement between the proprietor and the author. The author was not on the permanent staff of the Weekly Dispatch. He was paid by the proprietors for his contributions, the arrangement being that the author should have the right of separately publishing the stories, provided such separate publication did not take place until after all the stories had appeared in the Weekly Dispatch. In an action by the author against an infringer, Romer, J., in giving judgment for the plaintiff, said that he had come to the conclusion that although the plaintiff was paid he was not paid on the terms that the copyright in the stories should belong to the proprietors of the journal. The author had therefore not parted with the copyright and was the proper plaintiff.353
In Aflalo v. Lawrence354 the defendants published a work called “The Encyclopædia of Sport.” A, one of the plaintiffs, agreed with the defendants that he would edit the work. He was to receive £500 for his services, and to write without further remuneration 7000 words of special articles. He was entitled to pursue his literary work in so far as it did not interfere with the performance of his duties. A contributed an article to the encyclopædia under this agreement. A, by the request of the defendants, procured C, the other plaintiff, to write certain articles for the encyclopædia at the rate of £2 per thousand words. The articles of both plaintiffs were published in the encyclopædia. Joyce, J., held that the contributions of neither plaintiff came within section 18, since there was nothing to show that they were contributed on the terms that the copyright therein should belong to the defendants. The defendants were therefore not entitled to publish the plaintiff’s articles in any other form than as part of the encyclopædia. In view of the earlier authorities I think this decision is extremely doubtful.
Joint Employers.—As has been seen above in the case of Trade Auxiliary v. Middlesborough,355 two or more proprietors of several periodicals may jointly employ an author so as to acquire the copyright under this section. Each has a separate copyright in his respective paper, and, although the matter contributed to the several papers is the same, may sue without joining the other proprietors. Each is “a transferee by virtue of section 18 of a limited portion of the copyright in that particular composition.”356
Payment.—Not only must there be employment for reward, but payment is a condition precedent. If payment is not proved the section will not operate to transfer the copyright from the author.357 Payment must be made before the commencement of an action.358 It has been suggested that it must be made before piracy, and this appears a sound view since there is no copyright in the proprietor until payment, and an infringement before copyright is assigned is no cause of action in the assignee.359 There is nothing to suggest that payment must be made before publication.360
Author’s Separate Rights.—When an author has contributed to a periodical and the conditions of the section have been fulfilled so as to vest the copyright in the proprietor of the periodical, it would seem that for twenty-eight years, i. e. until the right of publishing in separate form reverts to the author, the author has no right to sue third parties in respect of an infringement without joining the proprietor of the periodical as co-plaintiff. If, however, the author, while contributing on the terms that the proprietor should have the copyright, reserves the right of publishing his composition in a separate form within the meaning of the proviso at the end of the section, when he does publish in separate form he will be entitled to copyright concurrently with the proprietor, but semble that he will have no right to sue alone until publication in separate form,361 or until the lapse of twenty-eight years.
During the twenty-eight years the proprietor of a periodical work is not, apart from express agreement, entitled to publish the contribution in separate form. If the proprietor does publish separately in breach of the provision of the section, the author has a right of action against him, and the author’s right not being one of copyright but in respect of a breach of implied or statutory contract he does not require to be registered.362 “Separate” means in any other form than the original collective publication, whether as a single work by itself or in conjunction with other matter. When the proprietor of a magazine reprinted certain stories which had appeared in the magazine from time to time, and published them as a supplement to the current number, this was held to be a publication in separate form which the author could prevent.363 So also the republication of the Christmas number of a periodical under a different title, form, and price, is a separate publication of an article contained in such number.364 A Christmas number of a serial publication, although published in an entirely different form with separate pagination and sold at a different price from the ordinary numbers, is part of the periodical, and separate publication of the stories therein will be prohibited under section 18.365
An article may be contributed to a periodical under express or implied terms that the copyright shall belong to the proprietor for all purposes, in which case there will be no reservation of a right of separate publication.366
It should be clearly noted that the second part of section 18 applies only to periodical works. Therefore in the case of an encyclopædia or similar collective works the owner has, apart from special terms, a right to publish the contributor’s article separately from the original publication.
Employer’s Rights where Section 18 does not Apply.—A question of some difficulty has been raised from time to time to which there is no definite authoritative answer, viz. whether apart from the provisions of section 18 the copyright ever vests ab initio in the employer of an author. We shall see in dealing with assignment that probably the sole right before publication to acquire the copyright of a book on first publication may pass from the author to his assignee without writing, either by an implied gift on delivery of the manuscript or by express oral assignment. The question now considered is whether by the fact of employment alone the work of the employee may not ipso facto on production become the property of his employer. In Sweet v. Benning367 it was held that the employment of certain members of the bar as reporters came within section 18, and that the copyright vested in the employers themselves; but during the argument Maule, J., is reported to have said:
“One might almost infer without the aid of an Act of Parliament that one who employs another to write an article or to make anything else for him is the owner or proprietor.”
I think that this suggestion is wrong if applied to the case of an independent contractor, and that if such an employment does not come within section 18 there will be no proprietary right in the employer ab initio, although it may be transferred to him before publication by mere delivery of the manuscript with the mutual intention to convey all rights. But in the case of a servant or agent who produces literary work in the course of his employment, I think it is different. I think that his work will vest ab initio irrespective of section 18, and that section 18 only applies to an independent contractor and not to a servant. In Hildesheimer v. Dunn368 Kekewich, J., takes this view. He says:
“I entertain a strong opinion that when a person has composed verses, we will say on behalf of another, that is to say as his servant or agent, whether for pay or not, the person on whose behalf such verses are composed is properly registered under the Act as the proprietor, notwithstanding that there is no assignment in writing or indeed any assignment at all.”