Page:The copyright act, 1911, annotated.djvu/36

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Copyright Act, 1911.

§1 (3)

lication of the work of sculpture. It is submitted that it would have been much more satisfactory if the last three lines in the sub-section had been omitted. The result would have been that each artistic element in an original work would have stood by itself and would be protected as being published or unpublished according to whether it was or was not reproduced in the published photograph or other derivative work. Probably, even as the definition stands, this is the only way in which it can be applied. It is practically impossible to provide that every original work must either be deemed to be published or unpublished in its entirety. Where certain features only of an original work are published in a derivative work, and other features are left unpublished, it would be impossible to lay down a rule by which it could be determined in all cases whether or not the original work was published. Probably the best construction to put upon the words of the proviso is that they do not contain an exception from the general definition of publication, but are merely an attempt to express the consequences of its application to the specific subjects dealt with, and even so that they do not completely express such consequences. It is submitted that, although the issue of a photograph or engraving of a work of sculpture or architectural work is not a publication of such work, meaning thereby the entire work, it is a publication of some essential elements of the work, and to that extent the work must be deemed to be published.

Existing Law.—Publication is of one of two kinds—either that which divests the common law right or that which invests some statutory right. With regard to divestitive publication, the issue of copies to the public is not an essential element. Any communication of the work to the public is a publication, whether oral or otherwise[1]. There is, however, no communication to the public in this sense if the communication is to a strictly limited class, or is made to members of the public upon conditions imposed by contract express or implied, or by some confidential relationship existing between the parties[2]. It has been held that a lecture delivered to a class of students at a public university is not a

  1. Walter v. Lane, [1900] A. C. 539; Caird v. Sime (1887), 12 A. C. 326; Turner v. Robinson (1860), 10 Ir. Ch. R. 121, 132; Millar v. Taylor (1769), 4 Burr. 23C3, 2417.
  2. Macmillan v. Dent, [1907] 1 Ch. 107, 117; Jefferys v. Boosey (1854), 4 H. L. C. 815.