right by penalties; and, thirdly, the encouragement of literature. But I think it has properly but two, viz. the object of protecting the copyright, and that of the advancement of learning; and there is a section in this statute which has that in view, and which it is singular enough has not been adverted to in the argument. The first, second, and third sections relate to the protection of the right of authors, or of the person having the property in the copy, or the purchaser; the fourth and fifth have especially for their object the advancement of literature; and the fourth is pregnant with this purpose, that literature should be made accessible at easy rates and prices, to persons desirous of purchasing books; and therefore it subjects to the archbishop, and the chiefs of the courts of law, the power of settling the prices of books. I am aware that this section has been repealed, but although repealed, it makes a part of one entire act, and shews the object of the legislature was to make learning easy of access. With the same purpose the fifth section provided for a delivery of nine copies of the books printed to certain public libraries, five out of those nine being to be transmitted to Scotland, in order to secure a deposit accessible to literary persons; for the books might have been of such considerable price, as not to be easily attainable by scholars of ordinary means. These therefore are the two objects, and in furtherance of these objects are the provisions contained in this statute to be construed. The first branch of the first section provides, "that the author of any book already printed shall have the sole right of printing for the term of 21 years, to commence from a given day; and that the author of any book already composed, and not printed and published, or that shall hereafter be com

posed,

1812.

CAMBRIDGE

University

against BRYER.

1812.

CAMBRIDGE

University against BRYER.

posed, and his assignee or assigns shall have the sole liberty of printing and reprinting the same for the term of 14 years, to commence from the day of the first publishing the same. This may be considered as a substantive provision vesting the copyright: and for the violation of that right, it was considered in Beckford v. Hood, that an action was maintainable, independently of the penalties, which are ancillary to the protection of that right. It was very properly observed in Beckford v. Hood, that unless the proprietor of the book had a right of action independent of that given for the penalties, his remedy might be anticipated, or rather precluded by a common informer; who might by some species of collusion difficult to detect, have stopped the course of his remedy entirely; and therefore the action was upheld in that case, and I think it has not been impeached; it was afterwards brought before the Court, but I think it was generally recognized as law, that an action was maintainable on this branch of the section independently of the penalties. It was considered also in the same case that the penalties given in the latter branch of the first section for the printing, reprinting, or importing any book, or selling the same without consent of the proprietor, accrue upon the entry at Stationers'-hall, and are made to depend thereon. The second section indeed expressly so provides, for after reciting "that many persons may through ignorance offend against the act, unless some provision be made whereby the property in such book, as is intended to be secured to the proprietor thereof, may be ascertained, it enacts that no person shall be subjected to the forfeitures or penalties therein mentioned for printing or reprinting of any book without such consent as aforesaid, unless the title to the copy of

such

such book shall, before such publication, be entered in the register-book of the Company of Stationers;" therefore it is clear that, by the express provisions of the statute, there must be a previous entry at Stationers'-hall to found an action for these penalties. The third section provides "that if the clerk of the Company of Stationers shall refuse or neglect to make such entry, or to give a certificate, the proprietor shall supply the place of such entry in a way there pointed out." Then the fourth section is directed to the settling the prices of books, with reference to that which is a very prominent object of this act, the cheapness of books; and then comes the fifth section, and that provides, "that nine copies of each book or books, upon the best paper, that shall be printed and published as aforesaid, or reprinted and published with additions, shall by the printer be delivered to the warehouse-keeper of the Company of Stationers for the time being, at the hall of the company, before such publication made.". Now the question arises upon this section, what is the meaning of the words "shall be printed and published as aforesaid." "Printed and published as aforesaid" relates not merely to the mode of printing and publishing, but likewise to the persons entitled to print and publish; it relates to the persons whose property is protected for the period for which it is protected; that shall be printed by the owner or purchaser entitled to protection during the respective periods, that is, twenty-one years for works printed before the act, and fourteen years for works printed after the act. When it directs that nine copies shall be delivered, it relates therefore to every person standing in that situation; the act directs that the copy shall be delivered to the warehouse-keeper, and it has not in this case been

delivered

1812.

CAMBRIDGE
University

against

BRYER.

1812.

CAMBRIDGE
University
against
BRYER.

delivered to the warehouse-keeper. It is said that the
entry at Stationers'-hall is necessary to make a delivery
of the nine copies requisite; but the entry by the terms
of the act is required only to enable persons to recover
the forfeitures and penalties, and not the value of the
book, distinct from the forfeitures. I do not advert parti-
cularly to the prior statutes of Car. 2., the object of
which was to give the Universities copies, nor to the
policy of them, which only shew that this was a matter
not perfectly new, but that under former statutes the Uni-
versities had derived similar benefits. But there come two
farther statutes; and it is contended that by the 15 G. 3.
c. 53., and the 41 G. 3. c. 107., a sense is put upon the
statute of Anne, which we are bound to adopt, in our
construction of it to-day. The 15 G. 3. c. 53. says,
"Whereas the said provision has not proved effectual,
but the same hath been eluded, by the entry only of the
title to a single volume, or of some part of such book or
books so printed and published, or reprinted and repub-
lished." What is the meaning of the word eluded?
means that the person entitled to the right has by some
deception or other lost the benefit of it. Eluded means
that he was tricked or deceived as to the thing he was
otherwise entitled to have. It does not mean that he was
effectually defeated; and unless it means that, it is
not pregnant of the construction endeavoured to be put
upon it.
At the same time, my difficulty has arisen
here, and here only. The framers of this statute did
certainly, in framing it, advert to that as the supposed
construction of the act of Anne; but have they imposed
upon the Court, by any enactment, the necessity of adopt-
ing that which I must assume to be their error, if the
words of the act are intelligible in themselves. If the

It

entry

entry is not a condition precedent to the right of the University to recover the value of the copy, which by looking at the act per se I must say is very clear, I cannot think that this recital in the 15 G. 3. can overrule the plain intelligible sense of the act of Anne. There is a farther provision in the 15 G. 3. and a farther condition precedent to the right of recovering the penalties, viz. "That no person shall be subject to the penalties in the act of Anne for printing or reprinting, importing or exposing to sale, any book or books, without the consent mentioned in that act, unless the title to the copy of the whole of such book, and every volume thereof, be entered in the manner directed by that act, and unless nine copies of the whole of such book, and every volume, shall be actually delivered to the warehouse-keeper of the Company, as therein directed, for the several uses of the several libraries in the said act mentioned." Therefore the delivery of the nine copies, in furtherance of the object of the act, is made a condition precedent to the right of maintaining an action for the penalties. The statute of the 41 G. 3. c. 107. s. 6. certainly was meant to place the University of Dublin on the same footing in point of benefit with those of Great Britain, and the other bodies entitled to copies under the statute of Anne. It says, "that in addition to the nine copies, now required by law to be delivered to the warehouse-keeper of the Company of Stationers, of each book which shall be entered in the register-book of the said company, one other copy shall in like manner be delivered for the use of the library of the College of the Holy Trinity of Dublin, and also one other copy for the use of the library of the Society of the King's Inns, Dublin." It has been argued, VOL. XVI.

that

1812.

CAMBRIDGE
University
against
BRYER.