PART I.

publication of their works; and an extended term of copyright CHAPTER III. throughout the whole of the British dominions is the reward of their so doing. So interpreted and applied, the Act is auxiliary to the advancement of learning in this country. The real condition of obtaining its advantages is the first publication by the author of his work in the United Kingdom. Nothing renders necessary his bodily presence here at the time, and I find it impossible to discover any reason why it should be required, or what it can add to the merit of the first publication. It was asked, in Jeffreys v. Boosey, why should the Act (meaning the statute of Anne) be supposed to have been passed for the benefit of foreign authors? But if the like question be repeated with reference to the present Act, the answer is, in the language of the preamble, that the Act is intended to afford greater encouragement to the production of literary works of lasting benefit to the world;' a purpose which has no limitation of person or place. But the Act secures a special benefit to British subjects, by promoting the advancement of learning in this country, which the Act contemplates as the result of encouraging all authors to resort to the United Kingdom for the first publication of their work. The benefit of the foreign author is incidental only to the benefit of the British public. Certainly the obligation lies on those who would give the term author' a restricted signification to find in the statute the reasons for so doing. If the intrinsic merits of the reasoning on which Jeffreys v. Boosey was decided be considered (and which we are at liberty to do, for it does not apply to this case as a binding authority), I must frankly admit that it by no means commands my assent."

33 Vict. c. 14.

Sect. 2 of the Naturalization Act, 1870 (33 Vict. c. 14) enacts that "real and personal property of every description may be taken, acquired, held, and disposed of by an alien in the same manner in all respects as a natural-born British subject; and a title to real and personal property of every description may be derived through, from, or in succession to an alien, in the same manner in all respects as through, from, or in succession to a natural-born British subject." This enactment, unless its very general words are in some manner explained away as not intended to apply to the case of copyright, would appear to do away wholly with the effect of the decision in Jeffreys v. Boosey as to all future cases. For all copyright is "personal property" by 5 & 6 Vict. c. 45, s. 25: It can be acquired by any natural-born British subject by first publishing his work in this country wherever he is at the time of its publication: By the enact

ment above set out, real and personal property of every description may be "acquired" by an alien "in the same manner in all respects as a natural-born British subject; from which it would seem to follow that an alien may acquire copyright in a work which he first publishes here, wherever he is at the time of its publication. (a) Though the question is not quite free from doubt, in all probability the ultimate court of appeal, should it ever come before that tribunal for determination, will decide it in favour of the alien in accordance with the opinions of Lords Westbury and Cairns above referred to.

PART 1.

CHAPTER III.

residence in

It is quite settled that it is not necessary in order to Meaning of entitle a foreign author to copyright in his work, that he British dominions should be resident within the United Kingdom at the time of its first publication here. It is sufficient that he should at that time be resident in any part of the British dominions. And the words "British dominions are defined by 5 & 6 Vict. c. 45, s. 2, to mean and include all parts of the United Kingdom of Great Britain and Ireland, the islands of Jersey and Guernsey, all parts of the East and West Indies, and all the colonies, settlements, and possessions of the Crown, which now are or hereafter may be acquired. In conformity with this it was determined by the Court of Appeal in Chancery, in the case of Low v. Routledge, (b) that an alien friend (a native of the United States of America) could, by a temporary residence in Canada at the time of publication in England, acquire a British copyright in the work published here. In that case it was agreed between the plaintiffs and an American authoress, from whom they had purchased the manuscript of a book written by her, that she should go to Montreal and reside there till after the publication of the work in England by the plaintiffs. resided at Montreal from the 19th of May, 1864, till after the 4th of June, 1864, when the book was published for the first time by the Messrs. Low, in London. An injunction was granted by Vice-Chancellor Kindersley to restrain

She

(a) An argument in favour of the applicability of the above section to cases of copyright is furnished by the fact that certain exceptions are expressly made, of which copyright is not one. It is provided [sect. 1] that this enactment "shall not confer any right on an alien to hold real property situate out of the United Kingdom, and shall not qualify an alien for any office or for any municipal, parliamentary, or other franchise; and shall not entitle an alien to any right or privilege as a British subject, except such rights and privileges in respect of property as are hereby expressly given to him," and also [sect. 14] that nothing in the Act contained "shall qualify an alien to be the owner of a British ship." (b) 35 L. J. 114, Ch.; 13 L. T. N S. 421.

D

PART I.

Messrs. Routledge from publishing an edition of the same CHAPTER III. Work; and on appeal the Lords Justices upheld his decision. Lord Justice Turner observed: "It was said for the defendants that the same word "author,' which is contained in this statute, was also contained in the statute of Anne, the first Copyright Act, and that strong opinions were expressed by the judges, and by the law lords in the House of Lords, in the case of Jeffreys v. Boosey, that the word 'author' in the statute of Anne means an author resident in England at the time of publication, and that the same construction ought to be given to the word 'author' in the Stat. 5 & 6 Vict. c. 45, now under our consideration. But there is no provision in the statute of Anne that the statute shall extend to the colonies, and in the statute we are now considering it is expressly so provided." It was also urged on behalf of the defendants that 5 & 6 Vict. c. 45, did not extend to colonies having legislatures of their own, as Canada; but the Lord Justice held that the word " colonies," in the absence of a context to control it, must extend to all colonies. This decision was affirmed by the House of Lords. (a)

Publication in United Kingdom indispensable.

Even if a statute of the colony in which the alien resides at the time of the publication of his work here, prevents an alien acquiring a copyright in a work published by him in the colony during his residence there, that would make no difference as to his title to copyright here. An alien has rights as a subject of the Crown whilst residing in one of its colonies, as well as rights as a subject of the colony; and though his civil rights within the colony depend upon the colonial laws, his civil rights beyond the limit of the colony are independent of those laws. "Every alien," said Turner, L.J., in the case last referred to, "coming into a British colony becomes temporarily a subject of the Crown, bound by, subject to, and entitled to the benefit of, the laws which affect all British subjects. He has obligations both within and beyond the colony into which he comes. As to his rights within the colony, he may well be bound by its laws; but as to his rights beyond the colony he cannot be affected by those laws, for the laws of a colony cannot extend beyond its territorial limits."

Publication in the United Kingdom is indispensable to copyright. That this was the intention of the Legislature is shown by various provisions of the statute; besides which "it would be very inconsistent with the usual practice of the Imperial Parliament to create a system of copyright law (a) See L. Rep. 3 Eng. & Ir. App. 100; 18 L. T. N. S. 874; 37 L. J. 454, Ch.

for all the colonies and dependencies in the empire, many of which have representative institutions of their own, without any consultation with those colonies or dependencies, and without any consideration whether a uniform and arbitrary system, such as that introduced by this Act, would be suitable to the varied circumstances, states of civilisation, and systems of jurisprudence and judicature in these different colonies and possessions." (a)

But when copyright once exists, the area over which it extends is the whole of the British dominions. (b)

PART L CHAPTER III.

first publishing

It is important to observe that by the International Copy- British subject right Act (7 & 8 Vict. c. 12, s. 19) a British subject who abroad. first publishes abroad is, equally with a foreigner, deprived of any copyright save such as he may acquire under that Act; and if there is no treaty giving effect to the Act in his particular case, he has no copyright in this country. This was so decided by Wood, V.C., in Boucicault v. Delafield, (c) in which case the plaintiff prayed for an injunction to restrain the defendant from producing a drama ("The Colleen Bawn") written by the plaintiff, and as it appeared on the hearing of the case, represented by the plaintiff at New York prior to its being represented in England. The Vice-Chancellor refused to grant the injunction and dismissed the bill with costs, being of opinion that the words of the 19th section of 7 & 8 Vict. c. 12, took away whatever rights the plaintiff might otherwise have had. If he had first represented his drama here, he would have been entitled to the provisions of the Dramatic Copyright Act. Then 7 & 8 Vict. c. 12, was passed, enabling Her Majesty to make arrangements conferring on other nations the privileges accorded to all people who first publish their works here. If the plaintiff had this sort of double right it was the very thing which the 7 & 8 Vict. c. 12, was intended to extinguish. The statute says in effect (sect. 19) that "if any person, British subject or not, chooses to deprive this country of the advantage of the first representation of his work, then he may get the benefit of copyright, if he can, under the arrangement which may have been come to pursuant to 7 & 8 Vict. c. 12, between this country and the country which he so favours with his representation; but if he chooses to publish his performance in a country which has not entered into any treaty or made any such arrangement with regard to copyright, then this country has

(a) Per Lord Cairns, C., Routledge v. Low (L. Rep. 3 Eng. & Ir. App. 108; 18 L.T.N.S. 874; 37 L.J. 454, Ch.) (b) Routledge v. Low, ubi supra. (e) 1 H. & M. 597; 9 L. T. N. S. 709; 33 L. J. 38, Ch.

PART I.

nothing more to say to him; he must be taken to have elected CHAPTER III. under which of the two statutes with respect to copyright he wishes to come, by performing his work in one country instead of the other, and he is thereby excluded from all advantage of publishing in the other."(a)

Unpublished works.

The property which an author has in his unpublished ideas embodied in a tangible shape being independent of statute (b) it should seem that an alien friend might prevent the unauthorised publication here of any of his unpublished works. (c)

Besides the copyright which may be possessed by individual authors and proprietors, there is also a copyright enjoyed in certain works by the Crown, and in others by the Universities, to which attention will now be directed.

Crown copy

right exists.

CROWN AND COLLEGE COPYRIGHT IN BOOKS.

Works in which THE copyright claimed by the Crown extended to the English Translation of the Bible, the Book of Common Prayer, the Statutes, Orders of the Privy Council, and State Proclamations; also to Almanacs, Lilley's Latin Grammar, the Yearbooks and reports of judicial proceedings. The exclusive right of printing these was held to be vested in the King; and he granted letters patent authorising others to print and publish them. Some part of this claim has now become obsolete, but a large part still remains unquestioned, and has been recognized in various decisions of courts, both of Common Law and Equity. The claim of the Crown to this copyright has by some been based upon a right of property similar to the right of a private author or his assigns; (d) by others it has been treated as grounded on naked prerogative and reasons of state policy. It is impossible to decide the point satisfactorily, nor is the matter one of importance.

(a) Per Wood, V.C. (1 H. & M. 597; 9 L. T. N. S. 709; 33 L. J. 38, Ch.)

(b) See Prince Albert v. Strange (2 De G. & S. 652; 1 Mac. & G. 25). (c) It has been held in America that the sect. (9) of the Act of Congress (Act of 1831, c. 16) which gave redress for the unauthorised printing or publishing of manuscripts, operated in favour of a resident of the United States who had acquired the proprietorship of an unprinted literary composition from a non-resident alien author: (Keene v. Wheatley, Amer. Law Reg. 45, cited Law's Digest of Patent, Copyright, and Tradesmark Cases, p. 256.)

(d) E.g., Lord Mansfield in Millar v. Taylor (4 Burr. 2401).