Lawrence, Bullen, & Co. v. Aflalo [1904] UKHL 467
On Appeal from the Court of Appeal in England.)
Friday , November 13 . 1904 .(Before the Lord Chancellor (Halsbury) , Lords Shand , Davey , and Robertson .)
41 SLR 467Lawrence, Bullen, & Company v. Aflalo.Subject_ Copyright — Author and Publisher — Articles Contributed to Encyclopœdia — Copyright Act 1842 (5 and 6 Vict. c. 45), sec. 18. Facts:1842 may be inferred from facts and circumstances, and does not require to be constituted by writing or express words.A contract concerning copyright
under section 18 of the Copyright Act
Page: 468 ↓
Where a publisher produced an encyclopædia made up of articles which on his employment were contributed by various authors for the purpose of being used in the encyclopædia, and were paid for by him— Held that it was to be inferred that the articles were contributed on the footing that on payment the copyright should become the property of the publisher.Section 2 of the Copyright Act 1842 enacts that the word “book” shall be construed to mean and include “every volume, part or division of a volume, pamphlet,” &c., “separately published.”Section 18 enacts that when the proprietor of any encyclopœdia, review, magazine, periodical, work, or work published in a series of books, shall employ persons to compose the same or any parts of the same on the terms that the copyright shall belong to the proprietor and be paid for by him, the copyright of such work shall be the property of the proprietor, “who shall enjoy the same rights as if he were the actual author thereof.”In 1896 Mr Aflalo submitted to Lawrence & Bullen, Limited, a firm of London publishers, a scheme for the completion and publication of a work to be called “The Encyclopaedia of Sport,” to be issued in parts under the editorship of Mr Aflalo, and to consist of articles by various writers on sporting subjects.By written agreement dated 10th July 1896 Lawrence & Bullen agreed to publish the work and bear the cost of publication, and to pay Mr Aflalo a fee of £500 for his work as editor, while Mr Aflalo agreed to contribute without further fee special articles amounting to 7000 words, and all unsigned articles that might be required. At the request of the publishers Mr Aflalo engaged Mr Cook (a well-known writer on sport under the pseudonym of “John Bickerdyke”) to contribute an article of 5000 words on “Angling,” and separate articles of 5000 words each on “Trout” and “Pike” at the rate of £2 per 1000 words. In neither of the agreements was there any express stipulation as to copyright.In 1899 the encyclopædia was published as arranged, Lawrence & Bullen being the publishers, Mr Aflalo being the editor, and contributing a signed article on “Sea Fishing,” and a number of unsigned articles, and Mr Cook contributing three articles on “Coarse Fish,” “Trout,” and “Pike,” all signed with his pseudonym. Messrs Aflalo and Cook were paid the sums stipulated.In 1900 Lawrence & Bullen published a book called “The Young Sportsman,” containing reprints of the articles contributed to the Encyclopaedia by Messrs Aflalo and Cook.Thereupon Messrs Aflalo and Cook registered themselves as proprietors of the copyright of their respective articles, and brought an action against Lawrence & Bullen for infringement of copyright.Joyce , J., granted an injunction, holding that the copyright of the articles belonged to the plaintiffs and not to the defendants. On appeal the Court of Appeal ( Romer and Stirling, L. JJ., Vaughan Williams, L. J ., diss ) affirmed this decision.The defendants appealed.At delivering judgment—
Lord Chancellor (Halsbury) —If I had not come to the conclusion that the case is covered by authority I should have desired further time to consider the mode in which I should express the views which I entertain. I think it absolutely impossible, after the decision arrived at just about half a century ago upon this very point in Sweet v. Benning , 16 C.B. 459, confirmed as it is by a decision of the Court of Appeal in Lamb v. Evans [1893], 1 Ch. 218, to render it doubtful what the decision on this appeal ought to be. I do not deny that there may be—there probably is—a distinction between the inference that would be drawn from the fact that a person had employed another to create something for him if it was a mere material subject and the rule which would apply to literary composition. Although there is a distinction in that respect which ought to be insisted upon, on the other hand literary compositions are subjects of barter and sale. When a person is employed to create some literary composition, and that involves somebody else spending money for its publication and incurring the responsibilities and great risk that may attend the publication, it is impossible not to recognise the fact that some of the inferences at all events could have been drawn from those facts of employment and payment which would naturally attach to the payment for something for which another person was employed. It is not a question of law, it is a question of fact, to be derived from all the circumstances of the case, what is the nature of the contract entered into between the parties. I must say that I thought that we had arrived at some sort of concurrence by the learned counsel themselves in the course of the argument, that in the construction of the 18th section, at all events, there were two propositions that could not be disputed. The first was that the bargain between the parties involving this question of copyright need not be in writing, Secondly, that no express words were necessary in order to constitute the contract, such as it is, contemplated by the statute. I must say that I can entertain no doubt that this is one of those inferences which you are entitled to draw, but one for which you can lay down no abstract rule. That which may be implied in a contract must depend very much on what the contract is—the nature of the contract—and whether or not the written contract displaces every other term whatsoever; because in the infinite variety of dealings among mankind there are some things which no one would think of expressing in terms, although undoubtedlyPage: 469 ↓
Lord Shand —As your Lordships have resolved that there shall be no decision given on the question which has been raised under section 2 of the statute as to the effect of the words “separately published,” there used in regard to the publication of the different articles, with others in an encyclopædia or magazine, I shall say no more than that I am certainly not prepared from the arguments which we have heard to agree with Williams, L.J., in what he alone has said on that subject. With reference to the case otherwise, I entirely agree with what has fallen from the Lord Chancellor. The question really here to be decided is whether the copyrights have been transferred by the publication from the authors to the publisher. The case is one in which the publisher's right depends on its being shown that the articles were contributed “on the terms” that the copyright in them should belong to him. Upon that question I think that we have important facts to consider. In dealing with it, it has not been disputed that although the agreement is contained in writing it is not necessary that the terms as to copyright shall be expressly stated; and where, as here, there are not express terms, it is enough to create a transfer of the right if that right be implied from the nature and whole circumstances of the publication and the arrangement and transaction between the parties. As bearing upon that matter, I think in the first place a very important point is that the publisher conceives the creation of the magazine which he publishes as his undertaking for his profit; that it is for the purpose of his magazine that the articles are contributed. Again, the articles as so contributed for the purpose of being used in his magazine are given on his employment and on his payment undertaken and made. Regarding those circumstances together, it appears to me that the articles are contributed on the footing that on payment under such employment theyPage: 470 ↓
Lord Davey —I am of the same opinion. If this matter could be regarded as res integra I think that there would be a great deal to be said for a construction of the 18th section such as that which was contended for by the learned counsel in the case of Lamb v. Evans , viz., that it was for the publisher or proprietor to prove an agreement that the composer or author was employed upon the terms that the copyright should belong to the publisher. But any such proposition as that would be inconsistent with the law as laid down in the cases of Sweet v. Benning and Lamb v. Evans . The law which I understand to be laid down in Sweet v. Benning is that it is not necessary, according to the true construction of the 18th section of the Copyright Act, that you should find an actual agreement that the copyright should belong to the proprietor; nor indeed is it even necessary to find special circumstances which lead to that conclusion. I say so because I find that in the case of Sweet v. Benning , the special case upon which the opinion of the Common Pleas was delivered, contained a statement that nothing was said between the parties affecting copyright. I can find no special circumstances stated in the special case, and the decision seems to me to have been founded only upon the nature of the employment, the nature of the publication and the relation of the parties. Joyce, J., tells us in his judgment—“I decide this case upon the short ground that I see no special circumstance either in the nature of the work or in the terms or in the nature of the employment from which I can infer, or must infer, that which is not expressed—namely, that the copyright is to belong to the proprietor.” That being so, he says in another passage that the consequence would not be different from what it would be in an ordinary case. I do not think that that decision was consistent with Sweet v. Benning or Lamb v. Evans . I think that what the Court has to do is to look at all the circumstances of the case and to say as a jury, What is the inference which you would draw? Or as Bowen, L.J., puts it in his judgment in Lamb v. Evans ,—What is the way in which business men would look at the question? Of course what the inference should be is a matter of fact, and for my own guidance I adopt the rule laid down by Kay, L. J., in Lamb v. Evans , as correctly stating what I understand to be the law, and therefore I ask myself, What is the inference which I am to draw from these circumstances? The circumstances are that the publisher is minded for his own profit to publish an Encyclopædia of Sport; he is prepared to spend, and he does spend, a very large sum of money, amounting to some thousands of pounds, upon the enterprise in which he is engaged; he employs a gentleman to act as editor and also to write some of the articles at a given salary, and through the editor he employs another gentleman, Mr Cook, to write articles for a given remuneration. Those are all the material facts of the case; and I have to ask myself what is the inference that I draw from those facts. That, I repeat, is a matter of fact and not a matter of law. No doubt one may gain some assistance from the way in which a similar set of facts have been regarded in other cases; but, after all, where it is a question of fact each case must stand upon it own merits. If I were to express my opinion as a juryman upon the facts which I have mentioned, I should say that it was one of the terms on which these gentlemen were employed to write articles for the Encyclopædia that the copyright should belong to the proprietor, and I say so for this reason. The Encyclopaedia was to be his property, it was to be his book, he was to derive the benefit and profit to be derived from its publication; and therefore I should assume that in buying the articles written by these gentlemen the inference is that both parties intended that the proprietor should have the right that was necessary for him to protect the property which he had purchased, and adequately to protect the enterprise for the purpose of which these articles were intended to be used. In my judgment he could not adequately protect the articles which he had purchased, or his property in the book for the purpose of which the articles were written and purchased, without having the right to prevent an invasion—I hardly like to say of the copyright, but I must say of the copyright in those articles. Therefore the inference which I should draw would be the same as was drawn in the cases of Sweet v. Benning and Lamb v. Evans ; and for my part I am perfectly prepared to adopt every word of the judgments ofPage: 471 ↓
Lord Robertson —In my opinion this case ought to have been decided on the authority of Sweet v. Benning and Lamb v. Evans , as furnishing a rule of inference applicable to the facts of the present case. I do not think that the conclusion which I support is accurately described as inferring one of three statutory requirements from the existence of two. Whether that inference be legitimate or not must depend on the nature and on the other conditions of the employment; and the cases to which I refer do nothing to take the question out of the region of fact. But it is obvious that the facts of employment and of payment stand in a different category from the terms on which employment and payment take place, those terms being necessarily an element or ingredient in the employment and not a separate or independent fact. Accordingly, the view of the two Lords Justices about the three conditions, all requiring by the structure of the section to be proved, really means than an express agreement about the copyright must be proved or the writer retains the copyright. Unable as I am to accept this view, which is opposed to the decision in Sweet v. Benning , and, indeed, was not supported by Mr Scrutton, I am free to consider what is prima facie the proper inference, and I prefer on its merits, and also from its authority, the inference of Sweet v. Benning . I desire to say that I do not proceed at all on the argument on the words “separately published,” which was raised at a later stage in the Court of Appeal, and was apparently adopted by Williams, L.J.Judgment appealed against reversed.Counsel for the Plaintiffs and Respondents— Hughes, K.C.— Scrutton K.C.— Parker. Agent— Field, Roscoe, & Company.Counsel for the Defendants and Appellants— Haldane, K.C— Younger, K.C.— Gilmour. Agents— Elkin & Henriques.