PART I. the assignment, and of the name and place of abode of the CHAPTER XV. assignee in the form given in a schedule to the Act 5 & 6 Vict. c. 45. (a) By writing. Writing need not be under seal. Writing is indispensable to a valid assignment; a parol . assignment is not sufficient. This was decided by the Court of King's Bench in Power v. Walker.(b) It was contended in that case that copyright was a mere personal chattel, not included within the statute of frauds, and, consequently, capable at common law, like other personalty, of passing by oral transfer; and that the stat. 8 Anne, c. 19, did not make a writing necessary. The court, however, was of a contrary opinion, considering that as the statute of Anne required a written consent from the proprietor to authorise the printing or reprinting of any book by any other person, the conclusion was almost irresistible that the assignment must also be in writing; an assignment, being in the nature of a perpetual licence, was greater than a license, and if the licence, which is the lesser thing, must be in writing, à fortiori, the assignment, which is the greater thing, must be so also. This case was followed in Clementi v. Walker, (c) and by the Court of Common Pleas in Davidson v. Bohn; (d) and, though disapproved in other cases, its binding authority has been recognised. (e) Where the assignees of the copyright in a comedy sought the aid of a court of equity, but did not state in their bill that the assignment to them was in writing, Lord Eldon refused to grant an injunction till that fact should be proved. The plaintiffs, who were unable to state whether the assignment from the author was in writing, afterwards produced an affidavit stating that all the manuscripts of dramatic compositions belonging to the Haymarket Theatre, including the comedy in question, had been assigned to them by three several indentures in writing, dated in the years. 1805, 1808, and 1819. Lord Eldon said he would assume the plaintiffs' title to be regular till the contrary were shown, and granted the injunction prayed for. (f) Tindal, C.J., in De Pinna v. Polhill (g), incidentally expressed an opinion that a deed was necessary to a valid assignment; and this view would seem supported by the words in which sect. 14 of 5 & 6 Vict. c. 45, speaks of the efficacy of the second mode of assignment-that by entry in the book of registry-of which it enacts that "such (a) Vide post, p. 156. (c) 2 Bar. & Cres. 861. (b) 3 M. & Sel. 7; 4 Camp. 8. (e) See per Bramwell and Channell, BB., in Cumberland v. Copeland (7 H. & N. 118). (f) Morris v. Kelly (1 J. & W. 481). (y) 8 Car. & P. 79. PART L. assignment so entered shall be effectual in law to all intents and purposes whatsoever, without being subject to any CHAPter XV. stamp or duty, and shall be of the same force and effect as if such assignment had been made by deed." However, Wightman, J., in giving his opinion to the House of Lords in the case of Jeffreys v. Boosey, (a) says, "there is nothing in the terms used in the statute of 8 Anne, c. 19, which requires the assignment to be either by deed or attested by witnesses; and at all events, since the statute of 54 Geo. 3, c. 156, it appears to me that an assignment by writing only is valid." And the ruling of the House of Lords in the Scotch case of Kyle v. Jeffreys (b) seems to be decisive of the question. In that case Jeffreys claimed copyright, by assignment from the authoress, in the words of a song written by Miss Eliza Cook, and sought to restrain the publication of the song by Kyle. Jeffreys had registered himself as proprietor at Stationers' Hall, and a certified copy of the registry, which is by statute prima facie proof of proprietorship, was produced at the trial; but his title being impeached by Kyle, other evidence was offered, consisting of a receipt by Miss Cook for a sum of money paid her by Jeffreys, "for copyright of words of a song written by me, entitled 'The Old Arm Chair,'" and also the testimony of a person to whom Miss Cook had stated that she had parted with the copyright in the song to Jeffreys. The reception of this evidence of title was objected to on the part of Kyle; and it was urged that no evidence, written or parol, was admissible to prove the asserted proprietorship without the production of a formal deed of assignment attested by two witnesses. The presiding judge overruled the objection, and admitted the evidence, holding that where the prima facie evidence afforded by the certificate of registration was rebutted, the claimant might still support his title without production of a formal instrument of assignment. The Court of Session upheld this ruling, and the House of Lords, on appeal, decided that it was correct as a general rule. As the evidence of title admitted on the trial in this case was not a writing under seal, the approval by the House of Lords of the judge's ruling, though the objection to it maintained the necessity of attestation as well as sealing, decides that a deed is not necessary to a valid assignment of copyright. It seems now to be finally determined that an assignment Attestation is need not be attested by witnesses. (a) 4 H. L. Cas. 891. (b) 21 Scotch Sess. Cas. N. S. 8; 18 Scotch Sess. Cas. N. S. 906. not necessary. PART I. CHAPTER XV. This question was long in an unsettled state, owing to the words in the statute of Anne, and the construction put upon them by the Court of King's Bench in the case of Power v. Walker. (a) The statute of Anne imposes a penalty on any person printing or publishing a book without the proprietor's consent "first had and obtained in writing, signed in the presence of two or more credible witnesses," but says nothing as to the mode of assigning copyright. Power v. Walker decided that as a licence to print or publish was required to be in writing, à fortiori an assignment, which was greater than a licence, must be so too; and the same reasoning would apply to the necessity of attestation by two witnesses. Then came the Act of 54 Geo. 3, c. 156, extending the duration of the copyright conferred by the statute of Anne, and inflicting a penalty on every person printing, reprinting, &c., any book or books "without the consent of the author or authors, or other proprietor or proprietors of the copyright of, and in such book or books, first had and obtained in writing," without making any mention of attestation. As this enactment made unattested licences valid, the inference drawn in Power v. Walker from their previous necessity should seem to have lost its force; for the reason of requiring an assignment to be attested was that the Act of Anne required the licence to be attested; and as a licence in writing without attestation is sufficient under the Act of Geo. 3, it should follow that an assignment in writing without attestation is also sufficient. However, in the case of Davidson v. Bohn, (b) decided subsequently to the Act of Geo. 3, it was laid down that for the purpose of transferring copyright there must be an instrument in writing attested by two witnesses; but the case appears to have been considered as if it had arisen before the 54 Geo. 3, c. 156, as that statute was not mentioned in the arguments or judgment. In Jeffreys v. Boosey (c), also, Lord St. Leonards, Parke, B., and Alderson, B., were of opinion that the provisions of the Acts of Anne and Geo. 3, as to licence and assignment, might well stand together, and therefore that the latter Act did not by intendment repeal the former. But of these judges, Alderson, B., appears to have considered himself bound (d) by the decision in Davidson v. Bohn, and Parke, B., afterwards changed his opinion. (e) (a) 3 M. & Sel. 7. (c) 4 H. L. Cas. 815. (b) 6 C. B. 456. (e) See the judgment of Lord Wensleydale in Kyle v. Jeffreys (3 Macq. 611). The question was again distinctly raised in 1861 in the case of Cumberland v. Copeland. (a) The Court of Exchequer in that case held that the construction put upon the statute of Anne in Power v. Walker was binding on them still, notwithstanding the Act of 54 Geo. 3, c. 156, and, consequently, that an assignment of copyright, to be valid, must be in writing, attested by two witnesses. This decision was appealed against, and was reversed by the unanimous decision of the Court of Exchequer Chamber (consisting of Erle, C.J., Crompton, Willes, Blackburn, Keating, and Mellor, JJ.), holding that an assignment of copyright made after the passing of 54 Geo. 3, c. 156, requires no attestation. (b) Erle, C.J., said, "An express enactment that a consent in writing should be valid is, to my mind, by implication, an enactment that a consent in writing may be valid without being attested by two witnesses. The former statute [that of Anne] required a consent in writing attested by two witnesses; the latter [54 Geo. 3, c. 156] requires a consent in writing only. It is clear to my mind, after the Act of 54 Geo. 3, c. 156, the plaintiff could not, without infringing the express words of that statute, say a consent in writing was not valid without two witnesses, because there was an enactment to that effect in the statute of Anne. The two statutes are inconsistent. After that time, if a consent in writing is valid without two witnesses, it seems to me, as a matter of reasoning, to follow that an unattested assignment is also valid; for if, as it was argued prior to the statute, because a consent in writing is not valid without two witnesses, so neither is an assignment: as a consent is now valid without two witnesses, so also is an assignment valid without two witnesses.(c). By the 54 Geo. 3, c. 156, the Legislature seem to have taken the view that I have mentioned, and, while still enacting that the contract must be in writing, left out purposely, as it seems to me, the necessity of having two witnesses. the case of wills it may well be that greater formality and ceremony should be required, in order to avoid all doubt as to the acts of dead men; but no such safeguards are required in an ordinary instrument of commerce. I therefore think the Legislature did wisely in the 54 Geo. 3, c. 156." (a) 7 H. & N. 118. In (b) 31 L. J. 353, Ex. ; 7 L. T. N. S. 334; 10 W. R. 581. (c) The inference, however, was stronger in the former case, as it was an à fortiori argument from the necessity of attestation in the case of a mere licence to its necessity in the case of the greater and more important assignment. The absence of the necessity of attestation in the former case does not furnish an equally strong reason for its non-necessity in the latter case. PART L CHAPTER XV. PART I. The second mode of assigning copyright is by entry in CHAPTER XV. the book of registry kept at Stationers' Hall. Assignment by at Stationers' Hall. Sect. 13 of 5 & 6 Vict. c. 45, after providing for registration entry in registry by the author or proprietor, enacts" that it shall be lawful for every such registered proprietor to assign his interest, or any portion of his interest therein, by making entry in the said book of registry of such assignment, and of the name and place of abode of the assignee thereof, in the form given in the schedule annexed to the Act, on payment of the sum of five shillings; and such assignment so entered shall be effectual in law to all intents and purposes whatsoever, without being subject to any stamp or duty, and shall be of the same force and effect as if such assignment had been made by deed." The form of concurrence of the party assigning the copyright in any book already registered, given in the schedule to the Act is as follows: I A. B. of being the assigner of the copyright of the book hereunder described, do hereby require you to make entry of the assignment of the copyright therein. The form of entry of assignment given in the schedule to the act is as follows: It is a curious discrepancy that while sect. 13 requires |