Cooper v Whittingham
| Jurisdiction | England & Wales |
| Date | 1879 |
| Court | Chancery Division |
Practice - Copyright - Piracy - Importing for Sale - Selling knowingly - Injunction - Costs -
The proprietors of an English copyright discovering a piracy by an American firm, sent notice to the agents in England of that firm not to distribute the copies complained of, and immediately afterwards brought an action against the agents for an injunction to restrain them from selling or importing for sale such copies in this country. The Defendants in their statement of defence stated that they had not received the copies from America until after the service of the writ in the action, and that when they did receive the copies they recognised the infringement of the Plaintiffs' copyright and at once determined not to sell:—
Held, that the Defendants had, within the terms of the Copyright Act, 1842, s. 17, “imported for sale” the copies complained of, and must, therefore, pay the costs of the action.
The offences mentioned in the Copyright Act, 1842, s. 17, are, to “import for sale” and to “sell knowingly” foreign piracies of copyright:—
Held, that a distinction is created by the addition in the statute of the word “knowingly” to the one offence, and therefore that a plaintiff who proceeds in respect of “importing for sale” is not required to give the defendant any notice, but may at once obtain an ex parte injunction. If, however, it is intended to take proceedings in respect of “selling knowingly,” notice of the nature of the copies complained of should properly be sent to the importer.
Where an action is brought to enforce a legal right, and there is no misconduct on the part of the plaintiff, the Court has no discretion to refuse him costs.
Where a statute creates a new offence and imposes a penalty, the ancillary remedy by injunction may still be claimed.
THE Plaintiffs, who were a firm in London, trading under the name of J. D. Cooper, were the proprietors of a periodical publication called “The Coachbuilders, Harness Makers, and Saddlers' Art Journal,” which was registered under the Copyright Act, 1842. The Defendants, Messrs. Whittingham & Wilkin, who also carried on business in London, were the agents in England of a New York firm, who were the publishers of an American periodical called “The Hub and New York Coachmakers' Magazine.”
On the 13th of April, 1880, the Plaintiffs received by post from the American publishers a copy of the April number of “The Hub,” containing matter which they found had been pirated from the English publication.
On the 14th of April one of the Plaintiffs wrote the following letter to the Defendants:—
“I beg to inform you that the April number of ‘The Hub,’ a copy of which has just reached me, contains matter which if published in this country would be an infringement of copyright. I therefore herewith give you notice that, if you distribute that number in this country, I shall consider it my duty to place the matter in the hands of my solicitors.”
The Defendants replied to this letter on the same day, and after acknowledging its receipt, stated that they had not seen the April number of “The Hub,” and said that the Plaintiffs would be responsible to the America n publishers for stopping its sale in England.
The Plaintiffs wrote on the same 14th of April to the Defendants' letter a reply in friendly terms, but repeating their former intimation of their intention to take legal proceedings if the Defendants should think fit to distribute the number in question. No further...
To continue reading
Request your trial
- J H Coles Pty Ltd v Need
- Liew Pak Fun and Another; Zainuddin
- Khoo Nean Tee and Others; Setapak Tin Mines Syndicate Ltd and Another
-
Whitmore v O'Reilly
...738. (3) 20 L. R. Ir. 582. (4) 12 L. R. Ir. 148. (1) L. R. 6 Eq. 324. (2) 31 Ch. D. 67. (3) L. R. 17 Eq. 343. (4) [1893] 1 Q. B. 564. (1) 15 Ch. D. 501. (2) 14 A. C. (1) 17 Q. B. D. 373. (2) [1899] 2 Ch. 467. (3) 5 P. D. at p. 222. (1) 4 Q. B. D. 611. (2) [1891] 2 Q. B. 194, at p. 196. (1) ......
-
Appealing Awards Of Cost In Nigeria
...Ltd v. Stahlbau GMBH & Co. KG (1989) LPELR-3400(SC) 3 Madu & Anor v. Anozia & Anor (2018) LPELR - 45484(CA) 4 Cooper v. Whittingham (1880) 15 Ch.D. 501, at p.504; Inneh v. Obaraye (1957) 2 FSC 58, at 59 5 UBA Ltd v. Stahlbau GMBH & Co. KG (Supra) 6 Wurno v. United Africa Company Ltd (1956) ......
-
AWARD MADE DE PRAEMISSIS
...that a successful party in an action, unless he misconducts himself, is entitled to costs as of right. (See Cooper v. Whittingham (1880) 15 Ch.D 501 at p. 504: Inneh v. Obaraye (1957) 2 F.S.C. 58 at P. 39; and Ladega v. Akinliyi and Ors. SC. 1/1967 delivered on 19 12 1969." - Per Irikefe, J......