Libel.—The repeal of the old Acts gave liberty to the press, but it did not give, or assume to give the press a greater measure of liberty than that enjoyed by the public generally. The Act of 1881, as amended and improved upon by a later one of 1888, did, however, provide a reasonable exceptional protection to newspapers in regard to criminal prosecutions. Thus the Act of 1888 prohibits such a prosecution being commenced against "any proprietor, publisher, editor, or any person responsible for the publication of a newspaper for any libel pub lished therein without the order of a judge at chambers being first had and obtained." The application to the judge must be preceded by notice to the person accused, so that he may have an opportunity to oppose the granting of the order. If the prosecution is allowed to proceed, the court of summary jurisdic tion before which the case is then brought is entitled to inquire into the question whether the libel was for the public benefit or was true. The section of the Act of 1881 which deals with this inquiry by the summary court is very important. It runs as follows :—" A court of summary jurisdiction, upon the hearing of a charge against a proprietor, publisher, or editor, or any person responsible for the publication of a newspaper, for a libel published therein, may receive evidence as to the publication being for the public benefit, and as to the matters charged in the libel being true, and as to the report being fair and accurate, and published without malice, and as to any matter which under this or any other Act [it is a defence under Lord Campbell's Act that the publication was for the public benefit --see LIBEL], or otherwise, might be given in evidence by way of defence by the person charged on his trial on indictnient ; and the Court, if of opinion after hearing such evidence that there is a strong or probable presumption that the jury on the trial would acquit the person charged, may dismiss the case." Further, the Court may deal with a case summarily if it considers that though the accused person is shown to have been guilty, yet the libel was of a trivial character, and that the offence may be adequately punished by the infliction of a fine not exceeding £50, provided the accused consents to being so dealt with summarily. As a preliminary to dealing. summarily with the case, the Court must have the charge reduced into writing, and read to the accused. Thereupon the Court should put this question to him : " Do you desire to be tried by a jury, or do you consent to the case being dealt with summarily ?" Upon this question being so put to him the accused must either assent or dissent, and, according to his answer, so the Court will deal with the case. A prosecution for libel comes within the VEXATIOUS INDICTMENT (q.v.) Act.
Copyrigb.t is a matter of very considerable importance in connection with newspaper enterprise, the protection of the copyright law being extended to news. papers, magazines, and other periodicals by the COPYRIGHT (q.v.) Act, 1911, protection can now be claimed, and the aid of the Courts 'invoked, without any registration of the newspaper.
Subject matter of has been held, in Cox v. Land and Water, that " a list of hounds " is of so changeable a character, and can be so easily procured as to be of insufficient importance to warrant the Court exercising its powers and reetraining a piracy. But the Court would doubtless promptly interfere to restrain even a slight trespass of a newspaper proprietor's rights if it were not a merely casual one, occurring now and again at long intervals, and not likely to be repeated, but a deliberate and persistent abstraction of matter. And this is so notwithstanding the general principle that there is no copyright in news, for there can most certainly be a copyright in a literary composition, that is to say, in the particular forms of language or modes of expression by which information is conveyed, and not the less so because the information may be with respect to the current events of the day. Such was the
decision in Walter v. Steinkopf, wherein it was contended, in addition to the point that there can be no copyright in news, that there was a practice by newspapers to copy from other newspapers, and that this pmctice should be recognised by the Court as a defence to an action for infringement of copyright. VvIth regard to the ques tion of copying, Mr. Justice North made the following remarks : " The principal ground upon which the defendants attempt to justify what has been done is the alleged existence of n. well-recognised general custom—a universal mutual under standing of journalists—a tacit convention to which the Times was a party—that one paper may copy from another without asking for permission, and that the consent of the proprietors of the paper copied may be taken for granted " if cer tain conditions are observed. The first of these conditions is that the source from which the quotation or inforniation is taken should be duly acknowledged; the second, that the paper copying, and the paper copied, must not be direct rivals Gr competitors, as for instance two evening newspapers in the seine town ; the third, that the paper copied from has at some time itself taken matter from the other, whereby they have impliedly agreed to an interchange of literary matter. With regard to proof of compliance with these three conditions the de fendants broke down altogcther. " But even if all tho alleged conditions had been complied with, what the defendants have done vvith respect to articles or paragraphs in which the Times has copyright is wholly incapable of justification in point of law. The plea of the existence of such custom, or habit, or practice of copying as is set up can no more bo supported when challenged than the highway man's plea of the custom of Hounslow Heath. It has often been relied upon as a defence in such cases, but has always been repudiated by the Courts." A picture or a cartoon published in ft newspaper, and also one inserted therein as a supplement, though not physic,ally attached to the paper itself, can be the subject of copyright as a part of the whole publication (Conqms v. Hyde). But with regard to a picture reproduced in a newspaper, the fact must not be over looked that the copyright in it will be vested in the original artist, or some person deriving title under him. That copyright, however, as in the case of original articles from contributors, can be acquired by the newspaper propiietor, either by special agreement or by an implied condition in the terms of the employment of the artist and his remuneration. If the newspaper proprietor has not legally acquired the copyright or a right to reproduce a picture, then he cannot lawfully publish or reproduce it. Should he do so, the owner of the copyright can proceed against him for infringement. And he is liable to such proceedings even though his acts were innocent, in tho sense that he had no in tention to pirate the original picture, and he has reproduced it under a mistaken apprehension of his rights. If, for example, some living pictures exhibited at a place of entertainment were, as they possibly might be, infringements of the copyright in the original pictures they represented, any one who represented in a periodical those living pictures in the form of sketches as a part of the news of the day, would be committing an infringement of the copyright ; provided, of course, that the sketches were such faithful representations of the living pictures as to be themselves embodiments of the design of the originals (Hanfstaengl v. Baines). And it might be that though a particular living picture is not itself an infringement of the original, a sketch thereof is a sufficient representation of the original to justify the interference of the Court on behalf of the owner of the copyright of the original.