LITERARY COPYRIGHT_Encyclopaedia Britannica, 11th Edition, "Convention" to "Copyright" Volume 7, Slice 3

Historical account.

2. _United Kingdom._--On the invention of printing (see PRESS LAWS) the

crown, or other sovereign powers, granted patents or licences with the

object of restricting the right of multiplying copies of literary works,

and this supervision of publication still has certain historical

results. A special kind of what amounts to perpetual copyright in

various publications has for various reasons been recognized by the laws

(1) in the crown, and (2) in the universities and colleges. The various

copyrights vested in the two English and the four Scottish universities,

Trinity College, Dublin, and the colleges of Eton, Westminster and

Winchester. Crown copyrights are saved by the general principle which

exempts crown rights from the operation of statutes unless they are

expressly mentioned. Among the books in which the crown has claimed

Prayer, statutes, orders of privy council, proclamations, almanacs,

Lilly's Latin Grammar, year books and law reports. The copyright in the

Bible is rested by some on the king's position as head of the church;

Lord Lyndhurst rested it on his duties as the chief executive officer of

the state charged with the publication of authorized manuals of

religion. The right of printing the Bible and the Book of Common Prayer

is vested in the king's printer and the universities of Oxford and

Cambridge. These copyrights do not extend to prohibit independent

translations from the original. The obsolete copyright of the crown in

Lilly's Latin Grammar was founded on the fact of its having been drawn

up at the king's expense. The universities have a joint right (with the

crown's patentees) of printing acts of parliament. Law reports were

decided to be the property of the crown in the reign of Charles II.; by

act of parliament they were forbidden to be published without licence

from the chancellor and the chiefs of the three courts, and this form of

licence remained in use after the act had expired. University and

college copyrights were made perpetual by an act of George III., but

only on condition of the books being printed at their printing presses

and for their own benefit.

3. The first definite statute, or Copyright Act, in England was passed

in 1709. The preamble states that printers, booksellers and other

persons were frequently in the habit of printing, reprinting, and

publishing "books and other writings without the consent of the authors

or proprietors of such books and writings, to their very great

detriment, and too often to the ruin of them and their families." "For

preventing, therefore, such practices for the future, and for the

encouragement of learned men to compose and write useful books, it is

enacted that the author of any book or books already printed, who hath

not transferred to any other the copy or copies of such book or books in

order to print or reprint the same, shall have the sole right and

liberty of printing such book or books for the term of one-and-twenty

years, and that the author of any book or books already composed, and

not printed and published, or that shall hereafter be composed, and his

assignee, or assignees, shall have the sole liberty of printing and

reprinting such book or books for the term of fourteen years, to

commence from the day of first publishing the same, and no longer." The

penalty for offences against the act was declared to be the forfeiture

of the illicit copies to the true proprietor, and the fine of one penny

per sheet, half to the crown, and half to any person suing for the same.

"After the expiration of the said term of fourteen years the sole right

of printing or disposing of copies shall return to the authors thereof,

if they are then living, or their representatives, for another term of

fourteen years." To secure the benefit of the act registration at

Stationers' Hall was necessary. In section 4 was contained the provision

that if any person thought the price of a book "too high and

unreasonable," he might complain to the archbishop of Canterbury, the

lord chancellor, the bishop of London, the chiefs of the three courts at

Westminster, and the vice-chancellors of the two universities in

England, and to the lord president, lord justice general, lord chief

baron of the exchequer, and the rector of the college of Edinburgh in

Scotland, who might fix a reasonable price. Nine copies of each book

were to be provided for the royal library, the libraries of the

universities of Oxford and Cambridge, the four Scottish universites,

Sion College, and the faculty of advocates at Edinburgh.

It was believed for a long time that this statute had not interfered

with the rights of authors at common law. Ownership of literary property

at common law appears indeed to have been recognized in some earlier

statutes. The Licensing Act 1662 prohibited the printing of any work

without the consent of the _owner_ on pain of forfeiture, &c. This act

expired in 1679, and attempts to renew it were unsuccessful. The records

of the Stationers' Company show that the purchase and sale of copyrights

had become an established usage, and the loss of the protection,

incidentally afforded by the Licensing Act, was felt as a serious

grievance, which ultimately led to the statute of 1709. That statute, as

the judges in _Millar_ v. _Taylor_ (1769, 4 Burr. 2303) pointed out,

speaks of the ownership of literary property as a known thing. Many

cases are recorded in which the courts protected copyrights not falling

within the periods laid down by the act. Thus in 1735 the master of the

rolls restrained the printing of an edition of the _Whole Duty of Man_,

published in 1657. In 1739 an injunction was granted by Lord Hardwicke

against the publication of _Paradise Lost_, at the instance of persons

claiming under an assignment from Milton in 1667. In the case of

_Millar_ v. _Taylor_ the plaintiff, who had purchased the copyright of

Thomson's _Seasons_ in 1729, claimed damages for an unlicensed

publication thereof by the defendant in 1763. The jury found that before

the statute it was usual to purchase from authors the perpetual

decided in favour of the common law right; one was of the contrary

opinion. The majority thought that the act of 1709 was not intended to

destroy copyright at common law, but merely to protect it more

efficiently during the limited periods. _Millar_ v. _Taylor_, however,

was speedily overruled by the case of _Donaldson_ v. _Beckett_ in the

House of Lords in 1774. The judges were called upon to state their

opinions. A majority (seven to four) were of opinion that the author and

his assigns had at common law the sole right of publication in

perpetuity. A majority (six to five) were of opinion that this right had

been taken away by the statute of 1709, and a term of years substituted

for the perpetuity. The decision appears to have taken the trade by

surprise. Many booksellers had purchased copyrights not protected by the

statute, and they now petitioned parliament to be relieved from the

consequences of the decision in _Donaldson_ v. _Beckett_. A bill for

this purpose actually passed the House of Commons, but Lord Camden's

influence succeeded in defeating it in the House of Lords. The result is

that from that time on ordinary copyright has been recognized except in

so far as it is sanctioned by statute. The university copyrights were,

however, protected in perpetuity by an act passed in 1775.

By an act of 1801 the penalty for infringement of copyright was

increased to threepence per sheet, in addition to the forfeiture of the

book. The proprietor was to have an action on the case against any

person in the United Kingdom, or British dominions in Europe, who should

print, reprint, or import without the consent of the proprietor, first

had in writing, signed in the presence of two or more credible

witnesses, any book or books, or who knowing them to be printed, &c.,

without the proprietor's consent should sell, publish, or expose them

for sale; the proprietor to have his damages as assessed by the jury,

and double costs of suit. A second period of fourteen years was

confirmed to the author, should he still be alive at the end of the

first. Further, it was forbidden to import into the United Kingdom for

sale books first composed, written, or printed and published within the

United Kingdom, and reprinted elsewhere. Another change was made by the

act of 1814, which in substitution for the two periods of fourteen years

gave to the author and his assignees copyright for the full term of

twenty-eight years from the date of the first publication, "and also, if

the author be living at the end of that period, for the residue of his

natural life."

Act of 1842.

4. The Copyright Act of 1842 repealed the previous acts on the same

subject, and is the basis of the existing law. Its preamble stated its

object to be to encourage the production of "literary matter of lasting

benefit to the world." The principal clause is the following (S3): "That

the copyright in every book which shall after the passing of this act be

published in the lifetime of its author shall endure for the natural

life of such author, and for the further term of seven years, commencing

at the time of his death, and shall be the property of such author and

his assignees; provided always that if the said term of seven years

shall expire before the end of forty-two years from the first

publication of such book the copyright shall in that case endure for

such period of forty-two years; and that the copyright of every book

which shall be published after the death of its author shall endure for

the term of forty-two years from the first publication thereof, and

shall be the property of the proprietor of the author's manuscript from

which such book shall be first published and his assigns." The benefit

of the enlarged period was extended to subsisting copyrights, unless

they were the property of an assignee who had acquired them by purchase,

in which case the period of copyright would be extended only if the

author or his personal representative agreed with the proprietor to

accept the benefit of the act. By section 5 the judicial committee of

the privy council may license the republication of books which the

proprietor of the copyright thereof refuses to publish after the death

of the author. The sixth section provides for the delivery within

certain times of copies of all books published after the passing of the

act, and of all subsequent editions thereof, at the British Museum. And

a copy of every book and its subsequent editions must be sent _on

demand_ to the following libraries: the Bodleian at Oxford, the public

library at Cambridge, the library of the faculty of advocates in

Edinburgh, and that of Trinity College, Dublin. Other libraries (the

libraries of the four Scottish Universities, King's Inns, Dublin, and

Sion College) entitled to this privilege under the earlier acts had been

deprived thereof by an act passed in 1836, and grants from the treasury,

calculated on the annual average value of the books they had received,

were ordered to be paid to them as compensation. A book of registry is

ordered to be kept at Stationers' Hall for the registration of

copyrights, to be open to inspection on payment of one shilling for

every entry which shall be searched for or inspected. And the officer of

Stationers' Hall shall give a certified copy of any entry when required,

on payment of five shillings; and such certified copies shall be

received in evidence in the courts as prima facie proof of

proprietorship or assignment of copyright or licence as therein

expressed, and, in the case of dramatic or musical pieces, of the right

of representation or performance. False entries shall be punished as

misdemeanours. The entry is to record the title of the book, the time of

its publication, and the name and place of abode of the publisher and

proprietor of copyright. Without making such entry no proprietor can

bring an action for infringement of his copyright, but the entry is not

otherwise to affect the copyright itself. Any person deeming himself

aggrieved by an entry in the registry may complain to one of the

superior courts, which will order it to be expunged or varied if

necessary. A proprietor may bring an action on the case for infringement

of his copyright, and the defendant in such an action must give notice

of the objections to the plaintiff's title on which he means to rely. No

person except the proprietor of the copyright is allowed to import into

the British dominions for sale or hire any book first composed or

written or printed and published in the United Kingdom, and reprinted

elsewhere, under penalty of forfeiture and a fine of L10. The proprietor

of any encyclopaedia, review, magazine, periodical work, or work

published in a series of books or parts, who shall have employed any

person to compose the same, or any volumes, parts, essays, articles, or

portions thereof, for publication on the terms that the copyright

therein shall belong to such proprietor, shall enjoy the term of

separately any article or review without the author's consent, nor may

the author unless he has reserved the right of separate publication.

Where neither party has reserved the right they may publish by

agreement, but the author at the end of twenty-eight years may publish

separately. Proprietors of periodical works shall be entitled to all the

benefits of registration under the act, on entering in the registry the

title, the date of first publication of the first volume or part, and

the names of proprietor and publisher.

The interpretation clause of the act defines a book to be every volume,

part, or division of a volume, pamphlet, sheet of letter-press, sheet of

music, map, chart, or plan separately published.

Recent extensions.

5. During the last quarter of the 19th century the question of copyright

became continually more prominent, and a considerable extension was

given by judicial interpretation to the scope of the act of 1842.

"Literary matter of lasting benefit to the world" came to include every

publication (not being illegal) which could be described as "literary"

or "original," the criterion as to the latter qualification being, in

the last resort, whether (see _Trade Auxiliary Co._ v. _Middlesborough

Association_, 1889, 40 Ch.D. 425) the author or compiler has really put

his own brain-work into it.

Newspapers.

6. The most marked and certain progress has been in the application of

the law of copyright to the periodical press, in order to protect within

reasonable limits the labour and expenditure of newspapers that obtain

for the public the earliest news and arrange it for publication. It is

settled law since 1881 (_Walter_ v. _Howe_, 17 Ch.D. 708, overruling

_Cox_ v. _Land & Water Journal Co._, 1869), that a newspaper is a book

within the meaning of the act, and can claim all rights that a book has

under the Copyright Act. Thus, leading articles, special articles, and

even news items are protected (_Walter_ v. _Steinkopff_, 1892, 3 Ch.

489; _Exchange Telegraph Co._ v. _Gregory and Co._, 1896, 1 Q.B. 147).

Current prices of stocks and shares, translations, the compilation of a

directory, summaries of legal proceedings, and other similar literary

work, so far as the literary form, the labour and money are concerned,

are equally protected. In short, the test may now be broadly stated to

be, whether labour of the brain and expenditure of money have been given

for the production; whilst the old requirement of original matter is

very broadly interpreted. The leading case on the subject is _Walter_ v.

_Lane_ (decided in the House of Lords, 6th August 1900). The question

there raised was, whether or not copyright applied under the act of 1842

in respect of _verbatim_ reports of speeches. Four law lords, viz. Lord

Chancellor Halsbury, Lord Davey, Lord James of Hereford and Lord

Brampton upheld the claim to copyright in such cases, whilst Lord

Robertson was the sole dissentient.

Apart from newspapers, protection has been extended to publications

having no literary character; Messrs Maple's furniture catalogue, and

the Stock Exchange prices on the "tape" have been awarded the same

protection as directories. The courts have declined to protect works

which are mere copies of railway time-tables, or the "tips" of a

sporting prophet, or mechanical devices with no independent literary

matter, such as patterns for cutting ladies' sleeves.

Lectures.

7. The publication of lectures without consent of the authors or their

assignees is prohibited by the Lecture Copyright Act 1835, which

reinforces the common law against publication of "unpublished" matter,

and gives a copyright for 28 years. This act, however, excepts from its

provisions: (1) lectures of which notice has not been given two days

before their delivery to two justices of the peace living within 5 m. to

the place of delivery (an impracticable condition), and (2) lectures

delivered in universities and other public institutions. Sermons by

clergy of the established Church are believed to fall within this

exception. The leading cases are _Nicols_ v. _Pitman_, 1884, 26 Ch.D.

374, and _Caird_ v. _Sime_, 1887, 12 A.C. 326.

Private letters.

8. The writer of private letters sent to another person may in general

restrain their publication. It was urged in some of the cases that the

sender had abandoned his property in the letter by the act of sending;

but this was denied by Lord Hardwicke (_Pope_ v. _Curl_ in 1741), who

held that at most the receiver only might take some kind of joint

property in the letter along with the author. Judge Story, in the

American case of _Folsom_ v. _Marsh_, 2 Story (Amer.) 100, states the

law as follows: "The author of any letter or letters, and his

representatives, whether they are literary letters or letters of

business, possess the sole and exclusive copyright therein; and no

person, neither those to whom they are addressed, nor other persons,

have any right or authority to publish the same upon their own account

or for their own benefit." But there may be special occasions justifying

such publication. See also the English case of _Macmillan_ v. _Dent_

(1905).

Test of infringement.

9. The question of what is an infringement of copyright has been the

subject of much discussion. It was decided under the statute of 1709

that a repetition from memory was not a publication so as to be an

infringement of copyright. In the case of _Reade_ v. _Conquest_, 1861, 9

C.B., the same view was taken. The defendant had dramatized the

plaintiff's novel _It's Never too Late to Mend_, and the piece was

performed at his theatre. This was held to be no breach of copyright;

but the circulation of copies of a drama, so taken from a copyright

novel, whether gratuitously or for sale, is not allowed. Then again it

is often a difficult question to decide whether the alleged piratical

materials which the law permits. It is not every act of borrowing

literary matter from another which is piracy, and the difficulty is to

draw the line between what is fair and what is unfair. Lord Eldon put

the question thus,--whether the second publication is a legitimate use

of the other in the fair exercise of a mental operation deserving the

character of an original work. Another test proposed is "whether you

find on the part of the defendant an _animus furandi_--an intention to

take for the purpose of saving himself labour." No one, it has been

said, has a right to take, whether with or without acknowledgment, a

material and substantial portion of another's work, his arguments, his

illustrations, his authorities, for the purpose of making or improving a

rival publication. When the materials are open to all, an author may

acquire copyright in his selection or arrangement of them. Several cases

have arisen on this point between the publishers of rival directories.

Here it has been held that the subsequent compiler is bound to do for

himself what the original compiler had done. When the materials are thus

_in medio_, as the phrase is, it is considered a fair test of piracy to

examine whether the mistakes of both works are the same. If they are,

piracy will be inferred. Translations stand to each other in the same

relation as books constructed of materials in common. The _animus

furandi_, mentioned above as a test of piracy, does not imply deliberate

intention to steal; it may be quite compatible with ignorance even of

the copyright work. Abridgments, moreover, of original works appear to

be favoured by the courts--when the act of abridgment is itself an act

of the understanding, "employed in carrying a large work into a smaller

compass, and rendering it less expensive." Lord Hatherley, however, in

_Tinsley_ v. _Lacy_, 1863, 1 H. & M. 747, incidentally expressed his

disapproval of this feeling--holding that the courts had gone far enough

in this direction, and that it was difficult to acquiesce in the reason

sometimes given that the compiler of an abridgment is a benefactor to

mankind by assisting in the diffusion of knowledge. A mere selection or

compilation, so as to bring the materials into smaller space, will not

be a bona fide abridgment; "there must be real substantial condensation,

and intellectual labour, and judgment bestowed thereon" (Justice Story).

A publication professing to be _A Christmas Ghost Story, Reoriginated

from the Original by Charles Dickens, Esq., and Analytically Condensed

expressly for this Work_, was found (_Dickens_ v. _Lee_, 1844, 8 Jur.

183) to be an invasion of Charles Dickens's copyright in the original.

Injurious works.

10. There can be no copyright in any but innocent publications. Books of

an immoral or irreligious tendency have been repeatedly decided to be

incapable of being made the subject of copyright. In a case (_Lawrence_

v. _Smith_, 1 Jac. 471) before Lord Eldon in 1822, an injunction had

been obtained against a pirated publication of the plaintiff's _Lectures

on Physiology, Zoology, and the Natural History of Man_, which the judge

refused to continue, "recollecting that the immortality of the soul is

one of the doctrines of the Scriptures, and considering that the law

does not give protection to those who contradict the Scriptures." The

same judge refused in 1822 to restrain a piracy of Lord Byron's _Cain_,

and _Don Juan_ was refused protection in 1823. Compare also _Cowan_ v.

_Milbourn_, 1867, L.R. 2 Ex. 230, in which a contract to let a room for

lectures of an irreligious character was held not to be binding.

Titles of works.

11. The quasi-copyright in titles of books, periodicals, &c. is founded

on the desirability of preventing one person from putting off on the

public his own productions as those of another. This is, however, not

sufficiently established) is a species of trade-mark in which the law

recognizes what it calls a "species of property," provided any

misleading of the public is involved. Thus, the _Wonderful Magazine_ was

invaded (1803) by a publication calling itself the _Wonderful Magazine,

New Series Improved_. _Bell's Life in London_ was pirated (1859) by a

paper calling itself the _Penny Bell's Life_. The proprietors of the

_London Journal_ got an injunction (1859) against the _Daily London

Journal_, which was projected by the person from whom they had bought

their own paper, and who had covenanted with them not to publish any

_weekly_ journal of a similar nature. A song published under the title

of _Minnie_, sung by Madame Anna Thillon and Miss Dolby at Monsieur

Jullien's concerts, was invaded (1855) by a song to the same air

published as _Minnie Dale, Sung at Jullien's Concerts by Madame Anna

Thillon_. On the other hand, the _Sphere_ and _Spear_, titles of

misleading similarity, assumed by two weekly periodicals that appeared

almost simultaneously in London in 1900, could not successfully attack

each other, because neither had an established reputation when first

adopted.

Drama and music.

12. Dramatic and musical compositions stand on this peculiar footing,

that they may be the subject of two entirely distinct rights. As

writings they come within the general Copyright Act, and the

unauthorized multiplication of copies is a piracy of the usual sort.

This was decided to be so even in the case of musical compositions under

the act of 1709. The Copyright Act of 1842 includes a "sheet of music"

in its definition of a book. Separate from the copyright thus existing

in dramatic or musical compositions is the stage-right or right of

representing them on the stage; this was the right created by the

Dramatic Copyright Act of 1833, in the case of dramatic pieces. This act

gave the owner of the stage-right (right of representation) a period of

twenty-eight years, or the duration of the author's life if longer. The

the period in both cases the same as that fixed for copyright. And the

act expressly provides (meeting a contrary decision in the courts) that

the assignment of copyright of dramatic and musical pieces shall not

include the right of representation unless that is expressly mentioned.

The act of 1833 prohibited representation "at any place of public

entertainment," a phrase which was omitted in the act of 1842, and it

may perhaps be inferred that the restriction is now more general and

would extend to any unauthorized representation anywhere. A question has

also been raised whether, to obtain the benefit of the act, a musical

piece must be of a dramatic character. The dramatization of a novel,

i.e. the acting of a drama constructed out of materials derived from a

novel, is not necessarily an infringement of the copyright in the novel

(supposing it to be possible to do it without making any sort of

colourable copy of the literary form), but to publish a drama so

constructed has been held to be a breach of copyright (_Tinsley_ v.

_Lacy_, 1863, 1 H. & M. 747, where defendant had published two plays

founded on two of Miss Braddon's novels, and reproducing the incidents

and in many cases the language of the original). Where two persons

dramatize the same novel, what, it may be asked, are their respective

rights? In _Toole_ v. _Young_, 1874, 9 Q.B. 523, this point actually

arose. A, the author of a published novel, dramatized it and assigned

the drama to the plaintiff, but it was never printed, published or

represented upon the stage. B, ignorant of A's drama, also dramatized

the novel and assigned his drama to the defendant, who represented it on

the stage. It was held that any one might dramatize A's published novel,

and that the representation of B's drama was not a representation of A's

drama. This case may be compared with _Reade_ v. _Lacy_ (1861).

In the "Little Lord Fauntleroy" case (1888) the person who dramatized

the novel of another without his consent, an operation up to that time

believed to be unassailable in law, was attacked successfully, by

preventing him from using printed or written copies of the play, either

to deposit with the lord chamberlain or as prompt-books. In every case

where much of the original dialogue of the novel is taken, this stops

the production of the dramatization.

In music, statutes of 1882 and 1888 have prevented the use of the

provisions inflicting penalties for the performance of copyright songs

for purposes of extortion, by allowing the court to inflict a penalty of

one farthing and make the plaintiff pay the costs, if justice requires

it. Authors reserving the right of public performance are required to

print a notice to that effect on all copies of the music.

An important decision (which appears to be a grave injustice) on musical

cases--see _Mabe_ v. _Conner_, 1909), in which it was held that the

reproduction of copyright tunes on the perforated slips for an Aeolian

or other mechanical instrument is not an infringement of copyright. In

Germany it has been decided (_Lincke_ v. _Gramophone Co._) that the

reproduction of copyright music on a gramophone is an infringement, and

an injunction was granted. It has also been held in France that the

production of copyright _words_ (but not music) was an infringement,

while in the United States the Copyright Act of 1909 extended copyright

control to mechanical reproductions, and gave the copyright proprietor

power to exact royalties.

The copyright in music was subject to serious injury in England from the

selling of pirated copies in the streets by hawkers; and in 1902 an act

was passed enabling summary proceedings to be taken for having such

copies seized and destroyed. But this act had various practical defects,

which still left publishers largely at the mercy of the pirates. In 1905

the evil had become so serious that the chief music publishers announced

their intention of not producing any further works till the law was

altered; but the new Musical Copyright Bill of that year was obstructed

and talked out in the House of Commons. In November 1905 an important

prosecution, instituted by Messrs Chappell on behalf of the associated

music-publishers and composers, was brought against a coterie of

pirates. In the session of 1906 another attempt, this time successful,

was made to pass a Musical Copyright Bill. This act (the Musical

imprisonment, to reproduce or sell, or to possess plates for the

production of, pirated copies of musical works. The act also gave power

to a constable to arrest without warrant any person who in any public

place exposes for sale or has in his possession for sale, or canvasses

or personally advertises pirated copies, provided that the apparent

owner of the copyright signs an authority requesting such arrest at his

own risk. Also a court of summary jurisdiction may grant a search

warrant, if there is reasonable ground for believing that an offence

against the act is being committed on any premises.

Rights of foreigners.

13. The right of foreigners under the English copyright acts produced at

one time an extraordinary conflict of judicial opinion. A foreigner who

during residence in the British dominions should publish a work was

admitted to have a copyright therein. The question was whether residence

at the time of publication was necessary. In _Cocks_ v. _Purday_, the

court of common pleas held that it was not. In _Boosey_ v. _Davidson_,

the court of queen's bench, following the decision of the court of

common pleas in _Cocks_ v. _Purday_, held that a foreign author might

have copyright in works first published in England, although he was

abroad at the time of publication. But the court of exchequer, in

_Boosey_ v. _Purday_, refused to follow these decisions, holding that

the legislature intended only to protect its own subjects,--whether

subjects by birth or by residence. The question came before the House of

Lords on appeal in the case of _Boosey_ v. _Jeffreys_ (1854), in which

the court of exchequer had taken the same line. The judges having been

consulted were found to be divided in opinion. Six of them held that a

foreigner resident abroad might acquire copyright by publishing first in

England. Four maintained the contrary. The views of the minority were

affirmed by the House of Lords (Lord Chancellor Cranworth and Lords

Brougham and St Leonards). The lord chancellor's opinion was founded

upon "the general doctrine that a British senate would legislate for

British subjects properly so called, or for such persons who might

obtain that character for a time by being resident in this country, and

therefore under allegiance to the crown, and under the protection of the

laws of England." Lord Brougham said that

"The statute of Anne had been passed for the purpose of encouraging

learned men, and with that view that act had given them the exclusive

right in their publications for twenty-one years. This, however, was

clear, they had no copyright at common law, for if they had there

would have been no necessity for the passing of that statute. It could

scarcely be said that the legislature had decided a century and a half

since that act was to be passed to create a monopoly in literary works

solely for the benefit of foreigners. In the present case he was

clearly of opinion that the copyright did not exist, and therefore

that foreign law should not prevail over British law where there was

such diversity between the two."

Against the authority of this case, however, must be set the opinion of

two great lord chancellors--Lord Cairns and Lord Westbury. In the case

of _Routledge_ v. _Low_, L.R. 3 H. L. 100, 1868, Lord Cairns said,

"The aim of the legislature is to increase the common stock of the

literature of the country; and if that stock can be increased by the

publication for the first time here of a new and valuable work

composed by an alien who has never been in the country, I see nothing

in the wording of the act which prevents, nothing in the policy of the

act which should prevent, and everything in the professed object of

the act and in its wide and general provisions which should entitle

such a person to the protection of the act, in return and compensation

for the addition he has made to the literature of the country."

And Lord Westbury said, in the same case,

"The case of _Jeffreys_ v. _Boosey_ is a decision which is attached to

and depends on the particular statute of which it was the exponent,

and as that statute had been repealed and is now replaced by another

act, with different enactments expressed in different language, the

case of _Jeffreys_ v. _Boosey_ is not a binding authority in the

exposition of this later statute. The act appears to have been

dictated by a wise and liberal spirit, and in the same spirit it

should be interpreted, adhering of course to the settled rules of

legal construction. The preamble is, in my opinion, quite inconsistent

with the conclusion that the protection given by the statute was

intended to be confined to the works of British authors. 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. If the intrinsic merits of the

reasoning on which, _Jeffreys_ v. _Boosey_ was decided be considered,

I must frankly admit that it by no means commands my assent."

These conclusions might follow also from the Naturalization Act of 1870,

which 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 by a natural born British subject. At the present time

the International Copyright Act has largely removed the question from

the area of conflict.

The Bern Convention.

14. _International Copyright._--Books published in one country and

circulated in another depend for their protection in the latter upon

international copyright. Until 1886 international copyright in Great

Britain rested on a series of orders in council, made under the

authority of the International Copyright Act 1844 (superseding acts of

1820 and 1826), conferring on the authors of a particular foreign

country the same rights in Great Britain as British authors, on

condition of their registering their work in Great Britain within a year

of first publication abroad. A condition of the granting of each order

was that the sovereign should be satisfied that reciprocal protection

was given in the country in question to British authors. As the result

of conferences at Bern in 1885 and 1887, this system was simplified and

made more general by the treaty known as "The Bern Convention," signed

at Bern on the 5th of September 1887. The contracting parties were the

British Empire, Belgium, France, Germany, Italy, Spain, Switzerland,

Tunis and Hayti. Luxemburg, Monaco, Norway and Japan afterwards joined.

Austria and Hungary have a separate convention with Great Britain,

concluded on the 24th of April 1893. The notable absentees among

European powers are Holland and Russia. So far as the United States is

concerned, the matter is regulated by the American copyright acts, which

are dealt with separately below.

The basis of the Bern convention was that authors of any of the

countries of the Union, or the publishers of works first published in

one of them, should enjoy in each of the other countries of the Union

the same rights as the law of that country granted to native authors.

The only conditions were that the work should comply with the necessary

formalities, such as registration, in the country where it was first

published, in which case it was exempt from all such formalities

elsewhere; and that the protection required from any country should not

exceed that given in the country of origin. The rights conferred

included the sole right of making a translation of the work for ten

years from its first publication. The convention was retrospective; that

is to say, it applied to copyright works published before its coming

into existence, each country being allowed to protect vested interests,

or copies already made by others, as it should think best.

The rights of foreign authors in Great Britain rest on legislation

giving effect to the Bern convention, namely, the International

dated 28th November 1887. These confer on the author or publisher of a

work of literature or art first published in one of the countries which

are parties to the convention, after compliance with the formalities

necessary there, the same rights as if the work had been first published

in the United Kingdom, provided that those rights are not greater than

those enjoyed in the foreign country.

The rights of British authors in foreign countries rest in each country

on the domestic legislation by which the particular country has given

effect to its promise contained in the Bern convention, and are enforced

by the courts of that country. The Bern convention was revised in minor

details not affecting its broad principles by a conference meeting in

1896 in Paris, and Great Britain adopted the results of their labours by

an order in council dated 7th March 1898. A further simplification in

the international law of copyright was expected to result from the

efforts of the international conference at Berlin in 1908, July 1910

being the latest date at which ratification by the states concerned

might take place, but it cannot here be stated to what extent

legislation may give effect to the decisions arrived at. So far as these

decisions affect Great Britain, the greatest alterations of existing law

would be in establishing throughout the Union protection of musical

also in the matter of newspaper copyright. The conference adopted a

threefold division of newspaper matter: (1) serial stories, tales and

all other work, literary, scientific and artistic, which is to have

absolute protection; (2) all newspaper matter, except the foregoing and

mere items of general news (_faits divers_), of which reproduction is to

be permitted on acknowledgment of the source, unless such reproduction

is expressly forbidden; (3) news of the day and simple facts, to which

no protection is given. An endeavour was also made to have a uniform

period throughout the Union for copyright of the author's life and 50

years.

15. _Colonial Copyright._--Under English copyright, books of the United

Kingdom were formerly protected in the colonies by the Colonial

could not be imported into the colonies. In 1876 a royal commission was

appointed to consider the whole question of home, colonial and

international copyright; and various recommendations were made. But the

matter now rests on the English International Copyright Act 1886, which

contains provisions designed to extend the benefit of the British

each colony to legislate separately for works first produced within its

own limits. The colonies at present are all included in the system of

international copyright established by the Bern convention.

In 1875 an act was passed (re-enacted in 1886 in the revised Canadian

statutes) to give effect to an act of the parliament of the Dominion of

Canada respecting copyright. An order in council in 1868 had suspended

the prohibition against the importation of foreign reprints of English

books into Canada, and the parliament had passed a bill on the subject

of copyright as to which doubts had arisen whether it was not repugnant

to the Order in Council. It was also enacted that, after the bill came

into operation, if an English copyright book became entitled to Canadian

United Kingdom, unless by the owner of the copyright. The following

points in the Canadian act are worth noting:--Any person printing or

publishing an unprinted manuscript without the consent of the author or

legal proprietor shall be liable in damages (S 3). Any person domiciled

in Canada, or in any part of the British possessions, or being a citizen

of any country having an international copyright treaty with the United

Kingdom, who is the author of any book, map, &c., &c., shall have the

sole right and liberty of printing, reprinting, publishing, &c., for the

term of twenty-eight years. The work must be printed and published, or

reprinted or republished in Canada, whether before or after its

publication elsewhere: and the Canadian privilege is not to be continued

after the copyright has ceased elsewhere. And "no immoral or

licentious, or irreligious, or treasonable, or seditious literary,

scientific or artistic work" shall be the subject of copyright (S 4). A

further period of fourteen years will be continued to the author or his

widow and children. An "interim copyright" pending publication may be

obtained by depositing in the office of the minister of agriculture (who

keeps the register of copyrights) a copy of the title of the work; and

works printed first in a series of articles in a periodical, but

intended to be published as books, may have the benefit of this interim

notified of the act through the minister of agriculture, who, if he does

not apply a remedy, may license a new edition, subject to a royalty to

the owner. Anonymous books may be entered in the name of the first

publisher. In 1889 an amending Canadian act was passed, which led to a

long controversy with the Mother Country,--the imperial government

refusing to sanction it,--till in 1900 a compromise was effected, and a

further act amending that of 1886 became law. It applies only to books

minister of agriculture to prohibit the importation, without consent of

the licensees, of any copies printed elsewhere of books published in the

British dominions licensed by the owners to be reproduced in Canada.

The Australian states all have copyright laws modelled on the English.

New Zealand provides for a term of 28 years, or the author's life. In

Cape Colony the term for books is the author's life and 5 years, or a

minimum of 30 years. The Indian act of 1847 is modelled on the English.

Foreign law.

16. _Other Countries._--The following notes give the general terms of

the copyright law in other countries of importance. For details

reference must be made to text-books. We only deal specifically with the

history and particulars of American copyright.

_Austria_, by a law of 1895, gives copyright for thirty years after

author's death.

_Belgium._--Copyright formerly perpetual, now limited to the life of the

author, and 50 years thereafter.

_France._--Copyright in France is recognized in the most ample manner.

Two distinct rights are secured by law--1st, the right of reproduction

of literary works, musical compositions, and works of art; and 2nd, the

right of representation of dramatic works and musical compositions. The

period is for the life of the author and fifty years after his death.

After the author's death the surviving consort has the usufructuary

enjoyment of the rights which the author has not disposed of in his

lifetime or by will, subject to reduction for the benefit of the

author's protected heirs if any. The author may dispose of his rights in

the most absolute manner in the forms and within the limits of the Code

Napoleon. Piracy is a crime punishable by fine of not less than 100 nor

more than 2000 francs; in the case of a seller from 25 to 500 francs.

The pirated edition will be confiscated. Piracy also forms the ground

for a civil action of damages to the amount of the injury sustained--the

produce of the confiscation, if any, to go towards payment of the

indemnity (Penal Code, Art. 425-429).

_Germany._--Period fixed in 1837 at ten years; but copyright for longer

periods was granted for voluminous and costly works, and for the works

of German poets. Among others the works of Schiller, Goethe, Wieland,

&c., were protected for a period of twenty years from the date of the

decree in each case. In 1845 the period was extended in all cases to the

author's life and thirty years after. The present law rests on a

Codifying Act of 1901, the term being the author's life and 30 years, or

not less than 10 years in any case.

_Greece._--Copyright is for fifteen years from publication.

_Holland._--Fifty years, or author's life, whichever is longer.

_Hungary._--by a law of 1884, gives a copyright for the author's life

and 50 years after.

_Italy._--Life of author, or 40 years from date of publication; and

afterwards a further period of 40 years, subject to a right in others to

reproduce on payment of 5% on each copy.

_Japan._--Author's life and 30 years after.

_Norway_, by a law of 1893, gives protection for author's life and 50

years after.

_Portugal._--Author's life and 50 years after.

_Russia._--Author's life and 50 years.

_Spain._--Author's life and 80 years thereafter.

_Sweden and Denmark_ provide for a term of the author's lifetime and 50

years after.

_Switzerland._--Author's life and 30 years after.

_Turkey._--Author's life, or 40 years, whichever is the longer.

American law.

17. _United States._--American copyright is provided for by an act of

March 1909, which replaced acts of July 1870 and March 1891, both of

which had introduced important modifications in the original act of

1790. Under all acts preceding that of 1891, copyright had been granted

to "citizens or residents of the United States," the term "resident"

having been, in decisions prior to 1891, construed to mean a person

domiciled in the United States with the intention of making there his

permanent abode. The works of foreigners could thus be reproduced

without authorization, and they were so reproduced in so far as there

was prospect of financial gain. The leading publishers, however, had

from the earliest times made terms with British authors, or with their

representatives, the British publishers, for producing authorized

American editions. But at most they were only able to secure by this

means an advantage of a few weeks' priority over the unauthorized

editions, and the good-will of the conscientious buyer; so that if they

paid the author any considerable sum, the price of the authorized

editions had to be made so high that it was not easy to secure a

remunerative sale. The unauthorized editions had the further advantage

in competition, that for the purpose of being manufactured more promptly

and more economically, they could be and often were issued in an

abbreviated and garbled form, an injury which to not a few writers

seemed more grievous than the lack of pecuniary profit. In Great

Britain, during the first half of the 19th century, the copyright law

had been so interpreted as to secure recognition of the rights of

American authors for such works as were produced there not later than in

any other country, so that authors like Washington Irving and Fenimore

Cooper secured for a time satisfactory returns; but after 1850 the

conditions became the same as in the United States. Unauthorized

editions were published, and were often incomplete and garbled.

As from decade to decade the books produced on either side of the

Atlantic, which possessed interest for readers of the other side,

increased in quantity and in importance, the evil of these unrestricted

piracies increased. The injury to British authors was greater only in

proportion as the English books were more numerous. The pressure from

Great Britain during the last half of the 19th century for international

by representative publishers, and by the more intelligent people

everywhere, that the existing conditions were of material disadvantage.

The loss to American authors was direct; and the loss to legitimate

American publishers was also clear, in that better returns could be

secured by adequate payments for rights that could be protected by law

than by "courtesy" payments for authorizations that carried no legal

rights. An injury was being done to American literature; for, when

authorized editions of American works had to compete against

unauthorized and more cheaply produced editions of English works, the

business incentive for literary production was seriously lessened. In

fiction particularly, authors had to contend against a flood of cheaply

produced editions of "appropriated" English books. Equally to be

condemned were the ethics of a relation under which one class of

property could be appropriated while other classes secured legal

protection. On these several grounds efforts had long been made to

secure international copyright. Between 1843 and 1886 no less than

eleven international copyright bills were drafted, for the most part at

the instance of the copyright associations or copyright leagues. They

were one after the other killed in committee. In 1886 the twelfth

international copyright bill was brought before the Senate by Senator

Jonathan Chace of Rhode Island, and was referred to the committee on

patents. In 1887 the American Publishers' Copyright League (succeeding

the earlier American Publishers' Association) was organized, with

William H. Appleton as president and G. H. Putnam as secretary. The

executive committee of this league formed, with a similar committee of

the Author's Copyright League, a conference committee, under the

direction of which the campaign for copyright was continued until the

passage of the act of March 1891. Of the Authors' Copyright League James

Russell Lowell was the first president, being succeeded by Edmund

Clarence Stedman. The secretary during the active work of the league was

Robert U. Johnson. Under the initiative of the conference committee

Cincinnati, Minneapolis, Denver, Colorado City and other places. The

Chace Bill was introduced in the House in March 1888. In May 1890 this

bill, with certain modifications, came before the House, and was there

defeated. In March 1891 the same measure, with certain further

modifications, secured a favourable vote in the House during the last

hour of the last day of the session, was passed by the Senate, and was

promptly signed by President Harrison. Thus, after a struggle extending

over fifty-three years, the United States accepted the principle at all

events of international copyright.

Provisions of Act of 1909.

18. The act of 1891 was criticized in several respects: (1) A condition

was that books or works of art must be "manufactured" in America;

consideration not being given to books originally produced in some

language other than English. (2) It required publication in the United

States simultaneously with that in the country of origin. (3) The term

of copyright (28 years, with an extension of 14 years to the author if

alive, or to widow or children) was shorter than that accorded under the

law of any other literature-producing country, excepting Greece. Minor

amending acts were passed in 1893, 1895 and 1897, that of Feb. 19, 1897,

establishing as the copyright department of the library of Congress a

Bureau of Copyrights, the head of which bears the title of Register of

Copyrights. Eventually, after hard work by the American Authors'

sittings extending to a period of three years, a new bill submitted to

Congress by the two Committees on Patents of the House of

Representatives and the Senate was successfully passed. It came into

force on the 1st of July 1909. Its provisions may be briefly summarized

as follows:--

Term of copyright.

Definition of copyright.

"Manufacture" clause.

Exemption of text of foreign book.

of first publication, whether the copyrighted work bears the author's

true name or is published anonymously or under an assumed name. A

further term of twenty-eight years is granted to the author if at the

expiration of the first term he be still living, or to his widow and

children if he be dead. If the author's widow and children be dead an

extension is granted to the author's executors, or in the absence of a

will, to his next of kin. Applications for renewal and extension must

be made to the copyright office and duly registered therein within one

year prior to the expiration of the existing term. To any work in

which copyright subsists at the time the act went into force the act

extends renewal for a period of twenty-eight years at the expiration

of the time provided for under the previously existing law (first

period 28 years, renewal period 14 years). The works for which

of an author." For purposes of registration the act classifies (1)

books, including composite and cyclopaedic works, directories,

gazetteers and other compilations; (2) periodicals, including

newspapers; (3) lectures, sermons, addresses, prepared for oral

delivery; (4) dramatic or dramatico-musical compositions; (5) musical

compositions; (6) maps; (7) works of art; models or designs for works

of art; (8) reproductions of a work of art; (9) drawings or plastic

works of a scientific or technical character; (10) photographs and

(11) prints and pictorial illustrations. But compilations or

abridgments, adaptations, arrangements, dramatizations, translations

or other versions of copyrighted works, when produced with the consent

of the proprietors of the copyrighted work are, under the 1909 act,

new works subject to copyright. A citizen or subject of a foreign

state can secure copyright only when he is domiciled within the United

States at the time of the first publication of his work, or when the

foreign state or nation of which he is a subject grants, either by

treaty, convention, agreement or law, to citizens of the United States

the benefit of copyright on substantially the same basis as to its own

citizens, or copyright protection equal to that secured by the foreign

author under the United States act, or when the foreign state is a

party to an international agreement providing for reciprocity in the

granting of copyright, and the United States may, by the terms of that

agreement, become a party thereto. After copyright has been secured by

publication of a work, two complete copies of the best edition

published must be "promptly" deposited in the copyright office, or

mailed to the register of copyrights, the postmaster, on request,

giving a receipt and mailing the books without cost. If the work be a

contribution to a periodical, one copy of the issue containing it must

be sent, or if it be a work not reproduced in copies for sale, a copy,

print, photograph or other identifying reproduction must accompany the

claim. Prior to 1891 the works of authors could be put into print on

either side of the Atlantic. The act of 1891 laid down that, in order

to secure copyright, all editions of the works of all authors,

resident or non-resident, must be entirely manufactured within the

United States, the term "manufactured" including the setting of type

as well as printing and binding. This manufacturing condition was

insisted on by the typographical unions. There is no logical

connexion, however, between the right of an author or artist to the

control of his production and the interests of American workmen; the

attempt to legislate for them jointly must bring about no little

confusion and inequity. If American working-men cannot secure a living

in competition with labourers on the other side of the Atlantic, their

needs should be cared for under the provisions of the protective

tariff. It is, however, the belief of a large number of those who are

engaged in the manufacturing of books that, with his advanced methods

of work, the skilled American labourer has no reason to dread the

competition of European craftsmen. With this manufacturing condition

out of the way, there would be nothing to prevent the United States

from becoming a party to the Bern Convention. This would place

intellectual property on both sides of the Atlantic on the same

footing. The power of the unions was sufficiently strong to prevent

this condition being eliminated from the act of 1909, but the just

claims were met of authors whose books are originally produced in some

language other than English, the "original text of a book of foreign

origin in a language or languages other than English" being exempted

from the requirements as to type-setting in the United States. On the

other hand the manufacturing condition is extended by the act of 1909

to illustrations within a book, and also to separate lithographs or

photo-engravings, "except where in either case the subjects

represented are located in a foreign country and illustrate a

scientific work or reproduce a work of art." The notice of copyrights

required by the act consists either of the word "copyright" or by the

abbreviation "Copr.," accompanied by the name of the copyright

proprietor, and in the case of printed literary, musical or dramatic

works, the notice must include also the year in which the copyright

was secured by publication. In the case of works specified in 6 to 11

inclusive, of the classification given above, the copyright notice may

consist of the letter C enclosed within a circle, thus: (c),

accompanied by the initials, monogram, mark or symbol of the copyright

proprietor, provided that on some accessible portion of the copy or of

the margin, or on the back or pedestal his name appears.

Interim protection.

Infringement.

Musical compositions.

Transfer and assignment of copyright.

Importation of copyright works.

The act of 1909 gives an _interim_ protection to a book published

abroad in the English language before publication in the United

States, the deposit in the copyright office, not later than thirty

days after its publication abroad, of one complete copy of the foreign

edition, with a request for the reservation of the copyright and a

statement of the name and nationality of the author and copyright

proprietor, securing copyright for thirty days from the date of

deposit. Any person infringing a copyright work is liable to an

injunction, and to pay such damages as the copyright proprietor may

have suffered by the infringement; in lieu of actual damages and

profits the courts may award such damages as appear to be just, and in

assessing them may, at its discretion, allow the amounts mentioned

below, except that in the case of a newspaper reproduction of a

copyrighted photograph such damages must not exceed the sum of two

hundred and fifty dollars nor be less than fifty dollars, and in no

other case must the damages be more than five thousand dollars or less

than two hundred and fifty dollars: (1) In the case of a painting,

statue or sculpture, ten dollars for any infringing copy made or sold

or found in the possession of the infringer or his agents or

employees; (2) in the case of any work enumerated in the

classification given before, except a painting, statue or sculpture,

one dollar for every infringing copy; (3) in the case of a lecture,

sermon or address, fifty dollars for every infringing delivery; (4) in

the case of dramatic or dramatico-musical or a choral or orchestral

composition, one hundred dollars for the first and fifty dollars for

every subsequent infringing performance; in the case of other musical

compositions, ten dollars for every infringing performance; all

infringing copies and devices must also be delivered up for

destruction. The act gives full control over his compositions to a

musical composer, and the right to make any arrangement or setting of

it, or of the melody of it, in any system of notation or form of

record from which it may be read or reproduced. His right to control

the reproduction of his music by mechanical instruments is restricted

(1) to cover only music published and copyrighted after the act went

into effect; (2) to include a musical composition by a foreign

composer only in the case of a citizen of a foreign state that grants

to citizens of the United States similar rights; (3) where the owner

of a musical copyright has permitted the use of his work upon parts of

instruments serving to reproduce the composition mechanically,

permission for a similar use of such work must be accorded to any

other person on the payment of a fixed royalty of two cents on each

part manufactured. The act makes a clear distinction between the

property in the copyright and that in the material object representing

the copyright, and enacts that the sale or conveyance of the material

object shall not of itself constitute a transfer of the copyright.

Transfer of copyright in the United States is to be effected by an

instrument in writing signed by the proprietor of the copyright, or

the copyright may be bequeathed by will. Assignment of copyright

executed in a foreign country must be acknowledged by the assignor

before a consular officer of the United States. Every assignment of

calendar months after its execution in the United States or within six

months without the limits of the United States. The importation into

the United States is forbidden of any piratical copies of a

copyrighted book or of any copies not produced in accordance with the

manufacturing provisions of the act (although authorized by the author

or proprietor), but importation is allowed to any society or

institution incorporated for educational, literary, philosophical,

scientific or religious purposes, or for the encouragement of the fine

arts, or to any State school, college, &c., or to free public

libraries, when importation is for use and not for sale. The act of

1891 allowed "_two_ copies in any one invoice" to be imported, but by

the act of 1909 not more than _one_ copy is to be imported in one

invoice.

The provisions having to do with international copyright become

operative in the case of a foreign state only when the president

proclaims that the state has fulfilled the condition of reciprocity. The

act of 1891 was put into force with foreign states as follows:--1st of

July 1891, Great Britain, Belgium, France, Switzerland; 8th of March

1892, Germany (by separate treaty); 31st of October 1892, Italy; 8th of

May 1893, Denmark; 15th of July 1895, Spain; 20th of July 1895,

Portugal; 27th of February 1896, Mexico; 13th of April 1896, Sweden and

Norway; 25th of May 1896, Chile; 19th of October 1899, Costa Rica; 20th

of November 1899, the kingdom of the Netherlands. In the case of each

state the territory covered by the provisions of the law included the

possessions, dependencies, &c. The copyright agreement with Great

Britain therefore covered the crown colonies of the empire, including

India and the self-governing dominions and states, such as Canada,

Australia, &c. An American work duly entered for copyright in Great

Britain secures, as a British publication secures, the protection of

territory of the several states that are parties to that convention.

Encyclopaedia Britannica, 11th Edition, "Convention" to "Copyright" Volume 7, Slice 3 · 第 18 / 21 题