Chapter XXIX: Section 44: of the Customs Act provides for the keeping of a list of

books as to which notice has been given, and section 45 entitles any person who shall have cause to complain of the insertion of any book in such list to apply to a judge at chambers for the rectification thereof.

=Every Offence.=--Each separate transaction of sale or importation will constitute a separate offence, for which a separate penalty of £10 will accrue.[478] It would seem that "every such offence" does not, as in the Artistic Copyright Act, mean "or the sale or importation of every copy."[479]

=Limitation of Action.=--Section 26 of the Copyright Act, 1842, enacts, "that all actions, suits, bills, indictments or informations for any offence that shall be committed against this Act shall be brought, sued, and commenced within twelve calendar months next after such offence committed, or else the same shall be void and of none effect." It is clear that even although the remedy for one offence is barred, that in no way extinguishes the owner's right, and the owner may sue for subsequent offences;[480] thus although a piratical book has been printed and published more than twelve months before action brought, yet the owner will be entitled to sue in respect of sales, &c., made within the twelve months. In a Scotch case, _Stewart_ v. _Black_,[481] it seems to have been held by Lord President Boyle that the limitation in the 26th section did not apply to an action of damages for infringement, and Malins, V. C., says _obiter_ in _Weldon_ v. _Dicks_,[482] that in his opinion the limitation only applies to an action for penalties. It is submitted that _Stewart_ v. _Black_, if applied to books published after 1842, is wrong, and that the dictum of Malins, V. C., in _Weldon_ v. _Dicks_, is also wrong. The section seems sufficiently clear and applicable to all actions brought in respect of an infringement of copyright. The argument contra seems to be based on the use of the words "for any offence that shall be committed," from which it is argued, that penalties only are pointed at. Offence, however, is used in the 15th section as applicable to infringement of copyright not involving penalties. In cases where the Public Authorities Protection Act applies, the shorter limitation of six months must be substituted.[483]

=Pleading.=--The defendant is required to give to the plaintiff a notice in writing of any objections on which he means to rely on the trial of the action. If the defendant intends to dispute that the plaintiff is author or first publisher, or that he is proprietor, he must state the name of the person whom he alleges to be the author or proprietor, together with the title of the book and the time when, and the place where, such book was first published.[484] It has been said to be sufficient, in the case of an old publication, to state the year of first publication without stating the day and month in the notice of objections.[485]

The notice of objections must be specific, and give full notice of the nature of the defence.[486] If the defence is that the book has not been registered at all, that must be stated.[487] If a faulty registration is relied on, it is not sufficient to deny that the book has been duly registered; the notice must state what the particular objection to the registration is.[488] If the plaintiff's title is denied, it will not do merely to state that the proprietor "is some person unknown, but not the plaintiff;"[489] the full particulars as required by the section must be given.[490] In objecting to the registration, however, it is not necessary for the defendant to state what the correct entry should he. Thus if he says the time of first publication is wrongly entered, he does not require to specify the true date of first publication.[491] It is unnecessary to deliver a separate "Notice of Objections," as was the practice at one time,[492] it is sufficient if it is incorporated in the defence. A suggestion of defective title contained in an affidavit would not be sufficient.[493] If a defective title is apparent from the plaintiff's own statement of claim or evidence, the action would probably be dismissed by the Court, _proprio motu_, even although the defendant had not given notice of objection.[494] Leave to amend the pleadings and take further objection may be allowed on conditions under the judicial discretion given by the Rules of the Supreme Court,[495] but if the objection be merely technical, the Court will not give leave to amend,[496] unless, perhaps, the plaintiff had otherwise fair notice that the objection might be taken.[497] It has been held by a County Court judge that section 16 of the Copyright Act does not apply to proceedings in the County Court, as that Court was created after the date of the Act.[498]

The plaintiff may be ordered to specify the particular passages which he is prepared to prove have been pirated from his work.[499]

=Evidence.=--The great test of piracy is coincidence of blunders, and when some passages are proved by the recurrence of blunders to have been copied, other passages which are the same with passages in the original book are presumed _primâ facie_ to be likewise copied, although no blunders occur in them.[500]

It will greatly prejudice the defendant if his manuscript is not produced or accounted for.[501]

A denial by the defendant that he has made any use whatsoever of the plaintiff's work raises a presumption of piracy if it is shown that he must have made some use of it, however fair.[502]

To prove that A on a certain date heard certain music performed from printed sheets, is no evidence that the music was published as a book at that date.[503]

=Discovery.=--The defendant is entitled to administer interrogatories to ascertain the extent of the sale of plaintiff's book, and to enable the defendant to ascertain the damages and pay into Court.[504]

The plaintiff is entitled to interrogate as to the original sources from which the defendant alleges his work to have been compiled.[505]

=Mode of Trial.=--Formerly the question of piracy or no piracy and the amount of damages was frequently tried by jury, but now the trial of the action is almost invariably before a judge alone, either in the Chancery or the King's Bench Division. Either party may ask for a trial by jury, but not as a matter of right, it is a matter entirely in the discretion of the Court and semble that the onus lies on the party applying for a jury to show that the cause could be more conveniently tried in that way.[506]

=Costs.=--In copyright as in other actions a successful party may be refused his costs. The plaintiff will not get his costs if he has unduly acquiesced in the defendant's conduct, and thereby induced the defendant to incur expenses,[507] or if after acquiescence and delay an action is brought without fair warning.[508] So, too, if the plaintiff has suffered no real harm, but brings an action for the purpose of making money out of it;[509] and in one case where the Court was of opinion that although the plaintiff was entitled to nominal damages, the action was one which should never have been brought, the plaintiff was ordered to pay the defendant's costs as well as his own.[510] If the plaintiff has increased the expenses by raising other questions in which he has failed, the costs will be apportioned.[511] A defendant, although successful, may lose his costs or part of them if he has acted in such a way as was not fair and right as between man and man;[512] for instance, if he has made some use of the plaintiff's book, but does not acknowledge it at the hearing.[513] A successful defendant may lose his costs if in his defence he challenges the plaintiff's title and fails in his attack, but wins on the question of piracy. If a defendant by his conduct in lending his name to a publication has led the plaintiff to assume that he "caused it to be printed," he will probably not be allowed his costs.[514] A defendant may also be refused his costs if the Court is of opinion that he brought the action on himself by sailing too near the wind.[515] The Court will not encourage a plagiarist or one who has made an illiberal use of another's work, even although he has not actually committed a piracy. Costs have also been refused where, although the defendant succeeded, his defence was a merely technical one, such as a defect in registration.[516] If copyright is claimed in part of a book only, the whole of which is registered without distinction, the notice of motion or statement of claim should specify the parts in which copyright is claimed, or the plaintiff may be liable in costs unnecessarily incurred by the defendant.[517]