Page:The copyright act, 1911, annotated.djvu/69

§ 5 (1).

made and executed for or on behalf of another for valuable consideration, in the employer^[1].

Existing law. Side by side with the statutory provisions there is judicial authority for the view that when any work is executed by a person in the course of his employment as the paid servant of another the copyright in that work vests in the employer^[2].

Collective works.
Copyright Act, 1842, s. 18. When copyright is claimed by the proprietor of a collective work under sect. 18 of the Copyright Act, 1842, the proprietor must prove that the employment was on the terms that copyright should belong to him. Such terms need not, however, be expressed, and when a proprietor has employed and paid an author, there is a primâ facie presumption that the employment was on the terms that the copyright should belong to the proprietor^[3]. Payment is a condition precedent to the copyright vesting in the proprietor of the collective work, and, apparently, if the work is published before payment, copyright vests in the author, but passes by operation of law to the proprietor on payment being made^[4]. If two or more proprietors of several publications have jointly employed an author to compose a work which is published in their several publications, the proprietors of each publication has, subject to the rights of the other proprietors, a separate copyright as if he alone had employed the author ^[5]. When the proprietor of a collective work has established his right under sect. 18, then, in the case of nonperiodical works, the copyright passes to him absolutely. In the case, however, of periodicals, the proprietor only acquires the light to it as part of his periodical. He cannot, without the author's consent, publish it in any separate form^[6], and after the lapse of

28 years from the day of first publication the author, or his assignee or personal representative, may publish separately, and on doing so acquires a concurrent copyright in the contribution. If, with the consent of the proprietor of the periodical, the author publishes in separate form before the expiration of 28 years, his concurrent copyright will date from such publication. Before the expiration of the 28 years, or publication in separate form, the author's interest is reversionary. His right against the proprietor is one of quasi-contract^[7]. Probably he could not sue third parties at law, but if third parties did print he would be entitled to demand that the proprietor should bring an action against them, and if the proprietor

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1. Fine Arts Copyright Act, 1862 (25 & 26 Vict. c. 68), s. 1.
2. Hildesheimer v. Dunn (1891), 64 L. T. 452; Walter v. Lane, [1900] A.C. 539; Sweet v. Benning (1855). 16 C. B. 459; James Nisbet & Co., Ltd. v. The Golf Agency (1907), 23 T. L. R. 370.
3. Lawrence and Bidlen v. Aftalo, [1904] A. C. 17; Lamb v. Evans, [1893] 1 Ch. 218; Walter v. Howe[ (1881), 17 Ch. D. 708; Johnson v. Newnes, [1894] 3 Ch. 663; Coote v. Judd' (1883), 23 Ch. D. 727.
4. Trade Auxiliary v. Middle-borough (1889), 40 Ch. D. 425; Brown v. Cooke (1846), 16 L. J. Ch. 140; Richardson v. Gilbert (1851), 1 Sim. (N. S.) 336; Collingridge v. Emmott (1888), 57 L. T. (N. S.) 864; Trade Auxiliary v. Jackson (1887), 4 T. L. R. 130.
5. Trade Auxiliary v. Middlesborough (1889), 40 Ch. D. 425.
6. Mayhew v. Maxwell (1860), 1 J. & H. 312; Smith v. Johnson (1863), 4 Giff. 632.
7. Johnson v. Newnes, [1894] 3 Ch. 663.