Chappell v Purday
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1845 |
| Date | 12 June 1845 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 1214
EXCH. OF PLEAS.
S. C. 1 D. & L 458; 13 L. J. Ex. 7. See further, 14 M. & W. 303.
1B14 CHAPPELL V. PURDAY 12M-&W. 303. [303] chappell #. purday. Exch. of Pleas. Nov. 24, 184:1-By the sfcat. 5 & 6 Viet. c. 45, for amending the law of copyright, it is enacted, by s. 11, that an entry may be made in a book, to be kept at the Stationers' Hall, of the proprietorship of the copyright of books; and that a copy of such entry shall be received iu evidence in all courts, and shall be prima facie proof of the proprietorship of I copyright. By s. 14 it is enacted, that any person who shall deem himself j aggrieved by any such entry may apply to the Court or a judge for an order . that suoh entry may be expunged or varied. The plaintiff', whose proprietorship in the copyright of an opera called Fra Diavolo had been in litigation in equity before the passing of the act, afterwards made the entry at Stationers' Hall, and immediately commenced an action against the defendant for an invasion of his copyright. The defendant did not set up any conflicting claim to the proprietorship :-Held, on an application to expunge the entry, that the defendant, although himself claiming no title in the copyright, was a person " aggrieved " within the meaning of the act; and the rule was discharged, only on the plaintiffs undertaking not to use the entry as evidence on the trial.-Semble, that where an entry is once expunged from the books, it cannot be again inserted.-The defendant was allowed to plead, that the plaintiff was not the proprietor of the copyright at the time of committing the grievances, and also that he was not the proprietor when the book was printed. [S. C. 1 D. & L. 458 ; 13 L. J. Ex. 7. See further, 14 M. & VV. 303.] This was a rule calling upon the plaintiff to shew cause why the defendant should not be allowed to plead the fifth plea in the abstract of pleas mentioned, and why the entry of the 15th of July, 1843, relating to L'Hotellerie de Terracine, or Fra Diavolo, an opera in three acts, in the book of registry of copyrights and assignments kept at the Hall of the Stationers' Company, should not be expunged or varied, or why the plaintiff should not be restrained from using the said entry in evidence at the trial of thia cause. It was stated in the affidavits, that the opera in question had been composed by Auber, in Paris, in 1829, and that the copyright of it, as far as related to the publication and sale in Great Britain and Ireland, was ultimately purchased by one S. Chappell, of whom the plaintiff was the widow and executrix. An injunction which had been obtained by the plaintiff, restraining the defendant from publishing and selling the overture of the opera, was dissolved in June, 1841, by the Lord Chief Baron, who ordered that the plaintiff should be at liberty to bring an action to try her right to the copyright. The matter afterwards came before the Vice-Chancellor of; England, on the 29th of June, 1843; and on the 8th of July his Honor delivered judgment, and gave the plaintiff liberty to bring such action as she should be advised. On the 1st of July, 1842, the statute 5 & 6 Viet. c. 45, intituled, "An Act to amend the law of copyright," [304] received the royal assent. The 1 Ith section of that act eriacta, that a book for registering the proprietorship in the copyright of books and assignments thereof, and in dramatic and musical pieces, whether in manuscript or otherwise, shall be kept at the Hall of the Stationers' Company by the officer appointed by the said Company for the purposes of the act, and that such officer shall, whenever reasonably required, give a copy of any entry in such book, &c., certified under his hand, &c., on payment of 5s. and " such copies so certified shall be received in evidence in'all courts, find in all summary proceedings, and shall be prima facie proof of the proprietorship or assignment of copyright or license as therein expressed, but subject tote rebutted by other evidence." The 14th section enacts, "That if any person shall deem himself aggrieved by any entry made under colour of this act in the said book of registry," he may apply to the superior courts or a judge "for an order that such entry may be expunged or varied," and the "courts or judge shall make such order for expunging, varying, or confirming such entry either with or without costs, as to such courts or judge shall seem just." On the 15th of July, 1843, the plaintiff made an'entry of her proprietorship of the copyright of the opera in the registry book at the Stationers' Hall, in the form given by the schedule of the act. On the 17th of July, 1843, the present action was commenced. The defendant pleaded the following pleas :-first, not guilty; secondly, that the plaintiff was not the proprietor of the copyright at the time of committing the grievance ; thirdly, that there was not a subsisting copyright in the book; fourthly, (to 12M.&W.30J. CHAPPELL V. PURDAY 12L5 the second count), that the books therein mentioned to have been sold ;ind published by the defendant were not printed after the passing of the 5 & 6 Viet. o. 45 ; fifthly, (t6 the second count), that the plaintiff was not the proprietor of the copyright when the said [305] books were printed ; sixthly, (to the second count), that the said books were not printed in the British dominions. Kelly shewed cause. This is not a case for the interference of the Court, in the exercise of its discretion to vary or expunge the entry. Such a course would he proper only where there is a bona fide dispute between the plaintiff and defendant respecting the title to the copyright; not where the defendant does not set up any right in himself, hub merely denies the right of the plaintiff. The entry ought not to be expunged without great consideration, since there does not appear to be any power of restoring it. The legislature only intended the power to be exercised in cases where there were two conflicting claimants. It might be proper to expunge it, if the party making it had been guilty of fraud, or had lost the verdict. Besides, it is at least doubtful whether the defendant is a person "aggrieved" by the entry, within the meaning of the statute. The party contemplated by tho act would seem to be a person who was directly and immediately aggrieved by the making of the entry. If the Court should expunge this entry before trial, there will be no case in which the defendant will not apply, because in every case the defendant will dispute the plaintiff's title to the copyright. Secondly, the defendant ought not to be allowed to plead the fifth plea, which is in substance the same as the second. [Lord Abinger, C. B. Do you accede to the alternative of the rule, and agree not to use it in evidence at the trial of this cause1?] If the Court think that this is a case in which the power ought to be exercised, the plaintiff must submit to the alternative, and agree not to set it up in this cauae. Jervis and Crompton, contra, were stopped by the Court. lord athn ;er, C. B. I think that the legislature never [306] intended, by an ex post facto law, to give one party to a suit already commenced a great advantage over his adversary ; and that advantage the plaintiff would certainly obtain in this case, if he were enabled to avail himself at the trial of this entry as prima facie evidence of his title. The statute cannot, in reason, apply to the case of a controversy etisting at the time it was passed. Mr. Kelly contends, that this is not a case for tlie exercise of our discretion in expunging the entry. I think, however, it is a strong case for our interference, otherwise great prejudice would be done to the defendant. As the case now stands, three courses are open to us, either to strike out the entry altogether, or to direct an issue before we strike it out, or so to qualify the matter that the entry shall not be used to the prejudice of the defendant. The latter course must be by consent, and as Mr. Kelly consents to that arrangement, so much of tho rule as relates to that will 1)6 discharged. The other part of the rule ought, I think, to be made absolute. The fifth plea is not the same as the second. The former denies that the plaintiff was the proprietor of the copyright when the work was first ptinted; the latter traverses that she was the proprietor at the time of committing tfie alleged grievance. I parke, B. I am of the same opinion. I agree, indeed, with Mr. Kelly, that it i$ not every lone who disputes the plaintiffs title who has a right to call upon; the Oourt to expunge the entry ; for it would seem that there is no power to restore the entry, if on(je struck out. We ought not, therefore, to take such a step, unless it be cjear that the plaintiff has no right to use this entry at the trial; and this is a point that ought to be settled, not on affidavits, but by an issue. As, however, that mode of settling the question would be expensive, the parties have done well to consent to the present course. The legislature has not stated what persons are to be considered as " ag-[307]-grievecl " by the entry, but I think that term applies to those only whose title conflicts with the plaintiff's. Any person wishing to publish a work may deny another's claim of monopoly in that work, and may, on that account, be considered as a party "aggrieved." The rule will, therefore, be absolute, for allowing the defendant to plead the fifth plea, and discharged as to the entry, the plaintiff undertaking not to avail himself of the entry at the trial. ; gubne", B., and rolfe, B., concurred. .Rule accordingly.
English Reports Citation: 153 E.R. 491
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 14 L. J. Ex. 258; 9 Jur. 495. Referred to, Jefferys v. Boosey, 1854, 4 H. L. Cas. 860. See 12 M. & W. 303.
[303] ckappell v. purday. June 12, 1845.-A foreign author, residing abroad, who composes...
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