Chapter XXVII: Section VI: The Licensee

Whether a bare licensee can bring an action for infringement without joining the legal owner of the copyright is open to doubt. It is submitted that he cannot. The essence of a licence proper is that it is merely a personal relationship between a licensor and a licensee whereby the latter is permitted to infringe the former's copyright. The old cases are not satisfactory. The distinction between partial assignment and licence is not clearly drawn, and the result is a confusion of the respective rights of the assignee and the licensee. In several cases it was said that licensees could sue[416] but _quære_ whether they were not really partial assignees. It has also been said that an owner of copyright who has granted an exclusive licence cannot sue in respect of an infringement which touches only the rights included in such licence, unless such owner has the consent of his licensee.[417] This again, it is submitted, is not a correct statement of the law, and arises from a confusion between a partial assignee and a licensee. In _Taylor_ v. _Neville_[418] the grant of provincial performing rights although called a licence was really treated as an assignment and distinguished from a "merely personal licence." It is submitted that a licence proper is always "merely personal" and that the grantor may sue without consent of his licensee. Where a licence has been granted or when there is doubt as to whether a particular grant is an assignment or a licence, it will always be safer to join both grantor and grantee as co-plaintiffs. A licence will not be presumed to be a sole licence, and unless it is expressly stated, or must necessarily be implied from the circumstances that it is so, the first licensee cannot restrain the licensor from granting, or a second licensee from acting on, a second licence.[419]

SECTION VII.--THE EXECUTORS OR ADMINISTRATORS.

Copyright is personal property, and descends on the death of an owner to his personal representatives.[420] "Assigns" is expressly interpreted to include one taking by bequest or by operation of law. The common law property in the manuscript passes on the death of the owner in the same way as copyright. A bequest of "all my books" has been held to include valuable manuscript notes left by a physician.[421]

SECTION VIII.--THE TRUSTEE IN BANKRUPTCY.

Copyright comes within the vesting section of the Bankruptcy Act and passes to the trustee of a bankrupt owner.[422] A bankrupt's unpublished works, probably, cannot be published for the benefit of his creditors without his consent.

CHAPTER IV

INFRINGEMENT OF COPYRIGHT IN BOOKS