Committee advise an uniform _ad valorem_ duty throughout this Dominion
of 12½ per cent., being the rate fixed and collected in the Province of
Canada, previous to the Confederation of the Provinces—and to establish
such regulations and conditions as may be subsistent with any Act of
the Parliament of the United Kingdom then in force as may be deemed
requisite and equitable with regard to the admission of such books, and
to the distribution of the proceeds of such duty to or among the party or
parties _beneficially_ interested in the Copyright.”
(_From Memorandum by the Minister of Finance._)
“Not one-tenth part of the reprints which find their way to Canada are
entered at the Custom-house, or pay duty.... It is proposed, in order
perfectly to secure the English author, that every Canadian publisher who
reprints English Copyrights should take out a licence, and that effectual
practical checks should be interposed, so that the duty on the number of
copies actually issued from the press should be paid into the Canadian
Government by Canadian publishers for the benefit of the English authors.
It is believed that the English authors would benefit enormously by the
proposed change. At present the amount received by Canada for duty on
English Copyrights, and paid over by Canada to the Imperial Government
for the benefit of English authors, is a mere trifle.”
(_From Mr. Lovell._)
“Montreal, June 11, 1868.
“In 1849, I believe, the Government of Canada, with the sanction of Her
Majesty the Queen, gave United States publishers the right to bring
reprints of English Copyright works into this country on payment of
Customs duty of 15 per cent., which has since been reduced to 12½ per
cent., the proceeds of the duties to be forwarded to the English authors
as a compensation for the privileges secured to the American publishers.
“The people of the Dominion, and especially the printing and publishing
interests, feel that they ought to possess at least equal privileges to
those conceded to the foreigner. There are several establishments in
the Dominion that would esteem it a great boon to be allowed to reprint
English Copyrights on the same terms as are now secured to United States
publishers, and would gladly pay the 12½ per cent. to the English authors
on the _total number_ of copies printed, sure to be very considerable. At
present only a few hundred copies pay duty, but many thousands pass into
the country without registration, and pay nothing at all; thus having
the effect of seriously injuring the publishers of Great Britain, to the
consequent advantage of those of the United States.”
(_Extract from Letter from Sir Louis Mallet to the Under-Secretary of
State, C.O._)
“It is obvious that, looking to the geographical position of the United
States and the North American Confederation, any arrangement with respect
to Copyright which does not apply to both must be always imperfect and
unsatisfactory, and it is therefore extremely desirable, if possible,
that the Canadian question should be considered in connexion with any
negotiations conducted with the United States Government.
“Another serious objection to the sanction by Her Majesty’s Government
of such a proposal appears to my Lords to be, that, while the public
policy of the mother-country enforces an absolute monopoly in works
of literature for a term of years, it is very undesirable to admit in
British Colonial possessions an arrangement which, whatever advantages
it may possess (and my Lords fully admit that much may be said in its
favour), rests upon a wholly different principle.
“It would be difficult, if such a principle were admitted in the British
Colonies, to refuse to recognise it in the case of foreign countries, and
thus it might come to pass that the British public might be called upon
to pay a high price for their books, in order to afford what is held to
be the necessary encouragement to British authors, while the subjects of
other countries and the Colonial subjects of Her Majesty would enjoy the
advantages of cheap British literature provided for them at the expense
of the inhabitants of the United Kingdom.”
(_Extract from a Paper by the Minister of Finance on the Copyright-Law in
Canada._)
“The consequence of this anomalous state of the Law is that Canada
receives large supplies of American reprints of English Copyright books,
which are sold at a much higher rate than if printed in Canada; while, at
the same time, so generally is the payment of the 12½ per cent. Customs
duty evaded, and so trifling is the whole amount realised from that
source (the total received last year for the whole Dominion of Canada
being only $799.43, or 164_l._ 5s. 3d. sterling, the average of the
preceding four years being only 115_l._ 1s. 3d., sterling), that so far
as regards the pecuniary or other interests of English authors, for whose
protection the duty was imposed and in whose behalf it is collected, the
effect is practically the same as if the reprints were avowedly admitted
duty free....
“It is believed that if this privilege were extended to Canadian
publishers, they would avail themselves of it to a very large extent, and
as the Excise duty of 12½ per cent. could, under proper regulations, be
very easily levied, a substantial revenue would accrue therefrom for the
benefit of English authors; and further, that a great impetus would be
given to the interests of printers, publishers, paper manufacturers, type
founders, and other important kindred branches of material industry, and
indirectly to the interests of literature and literary men....
“An American or any other foreign author, by publishing his work first
in the United Kingdom, may obtain for himself all the benefits of the
English Copyright-Law. One of those benefits, as the law now stands, is
to prohibit its reprint in any portion of Her Majesty’s dominions out of
the United Kingdom. He can equally procure its Copyright in the United
States, and the consequence is that the price of literature is enhanced
to British subjects in all Her Majesty’s Colonial possessions, since to
them and to them only can the prohibition to republish apply or be made
effectual.
“England does not confine the protection which she thus extends to her
own authors. The foreign author is protected against all her Colonial
subjects, provided he publishes first within the confines of Great
Britain and Ireland. She will not recognise a publication in a Colonial
possession as a compliance with the Copyright Act, but limits the place
of publication to the United Kingdom.
“Such the undersigned understands to have been the solemn interpretation
of the law by the House of Lords in the recent case of ‘Routledge and
Lowe’ (‘New Law Report,’ Appeal Cases, vol. ii., pp. 100-121), and he
would very strongly call attention to the unfair position in which the
policy of that law places the Canadian publisher and the Canadian public.
“The mere circumstance of the publishing in the United Kingdom gives
the author a monopoly throughout the entire area of the British
dominions—that author, in the opinion of the then Lord Chancellor Cairns,
need not be a native-born subject of the Crown; he need not be an alien
friend sojourning in the United Kingdom; he need not be sojourning
in a British Colony, but he may be a foreigner residing abroad. This
protection is afforded, in the language of Lord Cairns, to induce the
author to publish his work in the United Kingdom.
“If the policy of England, in relation to Copyright, is to stimulate, by
means of the protection secured to literary labour, the composition of
works of learning and utility, that policy is not incompatible with such
a modification of law as will place the Colonial publisher on a footing
of equality not only with the publisher in the United States, but even
with the publisher in the United Kingdom....
“If the rate of duty, whether import or excise, were inadequate, it would
be an equally reasonable argument against the extension of the law; and
in that case the rate could be augmented.”
TENDENCIES OF COPYRIGHT AMENDERS.
That pretensions under Copyright are becoming so formidable as to
demand very serious attention on the part of statesmen and of all who
desire to maintain the integrity of our national inheritance of a
world-wide, heartily-united empire, and imperial freedom from odious,
inquisitorial, and impracticable restraints, especially such as might
hinder intellectual and moral development, will be evident to any person
who takes pains to study and follow out to their necessary consequences
the provisions contained in the following transcripts from a Bill lately
introduced by an ex-Lord Chancellor, “for Consolidating and Amending the
Law of Copyright in Works of Fine Art:”
_Fine Arts Copyright Consolidation and Amendment._ [32 Vict.]
Design.—An original conception represented by the author
thereof in any work of fine art.
Drawing or Painting.—Every original drawing or painting, made
in any manner and material, and by any process.
Photograph shall mean and include every original photograph.
Sculpture.—Every original work, either in the round, in relief,
or intaglio, made in any material, and by any process.
Engraving.—Every original engraving and lithograph made upon a
plate, block, or slab, of any material, by any process, whereby
impressions may be taken from such plate, block, or slab, and
the impressions taken from the same.
Work of Fine Art.—Every drawing, painting, photograph, work of
sculpture, and engraving as herein-before interpreted.
Extending to all parts of the United Kingdom of Great Britain
and Ireland, the Channel Islands, the Isle of Man, and _all
the colonies_ and possessions of the Crown which now are, or
hereafter may be, created or acquired.
3. The author of every original work of fine art, if made, or
first sold, after the commencement of this Act, such author
being a British subject, or resident within any part of the
British dominions at the time such work shall be made or first
sold, and the assigns of such author, shall have the Copyright
of sole and exclusive right of copying, reproducing, and
multiplying such work, and the design thereof, in the British
dominions, by any means, and of any size, for the term of the
natural life of such author, and thirty years after his death,
but subject to the following conditions and restrictions; (that
is to say), &c.
9. If the author of any work of fine art in which there shall
be subsisting Copyright, after having become divested of such
Copyright, or if any other person, not being the proprietor for
the time being of the Copyright in any work of fine art, shall
by any means unlawfully repeat, copy, imitate, or otherwise
multiply for sale, hire, exhibition, or _distribution_, or
cause or procure to be repeated, copied, imitated, or otherwise
multiplied for sale, hire, exhibition, or distribution,
any such work, or the design thereof, _or any part of such
design_, or, knowing that any such repetition, copy, or other
imitation has been unlawfully made, shall _import_ or export
into or out of _any part of the British dominions_, or sell,
publish, let to hire, exhibit, or distribute, or offer for
sale, hire, exhibition, or distribution, or cause or procure
to be so imported, or exported, or sold, published, let to
hire, distributed, or offered for sale, hire, exhibition, or
distribution, any unlawful repetition, copy, or imitation of
any such work, or of the design thereof, such person for every
such offence shall forfeit to the registered proprietor for the
time being of the Copyright thereof a sum not exceeding twenty
pounds, and not less than two pounds, for every first offence,
and not less than five pounds, for every subsequent offence, &c.
11. All repetitions, copies, or imitations of any work of fine
art, or the design thereof, wherein there shall be subsisting
Copyright under this Act, and which, contrary to the provisions
of this Act, shall have been made in any foreign State, are
hereby absolutely prohibited to be imported into any part of
the British dominions, except by or with the consent of the
registered proprietor of the Copyright thereof, or his agent
authorised in writing; and if the registered proprietor for the
time being of any such Copyright or his agent shall declare,
_or if any officer of Her Majesty’s Customs shall suspect_,
that any goods imported are prohibited repetitions, copies,
or imitations of any such work of fine art, or of the design
thereof, then _such goods may be detained_, unpacked, and
examined by the officers of Her Majesty’s Customs.
12. The _Commissioners of Customs_ shall cause to be made, and
_publicly exposed at the several ports_ of the United Kingdom,
_and in Her Majesty’s possessions abroad, printed lists of all
works of fine art wherein Copyright shall be subsisting_, and
as to which the registered _proprietor_ for the time being of
such Copyright, _or his agent_, shall have given notice in
writing to the said Commissioners that such Copyright exists,
stating in such notice when such Copyright expires, and shall
have made and subscribed a declaration before the collector of
the Customs, or any justice of the peace, at some port or place
in the United Kingdom or in Her Majesty’s possessions abroad,
that the contents of such notice are true. The provisions
contained in the Acts now in force, or at any time to be in
force, regarding Her Majesty’s Customs, as to the application
to the courts and judges by any person aggrieved by the entry
of any book in the lists of books to be made and publicly
exposed by the said Commissioners under the said Acts, and
the expunging any such entry, shall apply to the entry of any
work of fine art in the lists thereof to be made by virtue of
this Act, in the same manner as if such provisions were herein
expressly enacted, with all necessary variations in relation to
such last-mentioned lists, &c.
13. _Every person who shall import_ or export, or cause to be
imported or exported, into or out of any part of the British
dominions, or shall _exchange_, publish, sell, let to hire,
_exhibit_, or _distribute_, or offer, or hawk, or carry
about, or keep for sale, hire, exhibition, or distribution,
any unlawful copy, repetition, or imitation of any work of
fine art, in which, or in the design whereof, there shall be
subsisting registered Copyright, shall be bound, on demand in
writing, delivered to him or left for him at his last known
dwelling-house or place of business, by or on behalf of the
registered proprietor for the time being of such Copyright,
to give to the person requiring the same, or his attorney
or agent, within forty-eight hours after such demand, _full
information in writing of the name and address of the person
from whom, and of the times when, he shall have imported,
purchased, or obtained_ such unlawful copy, repetition, or
imitation, also the number of such copies, repetitions, or
imitations which he has obtained, and also to produce to the
person requiring such information all invoices, books, and
other documents relating to the same; and it shall be lawful
for any justice of the peace, on information on oath of such
demand having been made, and of the refusal or neglect to
comply therewith, to summon before him the person guilty of
such refusal or neglect, and on being satisfied that such
demand ought to be complied with, to order such information to
be given and such production to be made within a reasonable
time to be fixed by him.
14. Upon proof by the oath of _one credible person_ before _any
justice of the peace_, court, sheriff, or other person having
jurisdiction in any proceeding under this Act that there is
reasonable cause to _suspect_ that _any person has in his
possession_, or in any house, shop, or other place for sale,
hire, distribution, or public exhibition, any copy, repetition,
or imitation of any work of fine art in which, _or in the
design whereof_, there shall be subsisting and registered
Copyright under this Act, and that such copy, repetition, or
imitation has been made without the consent in writing of the
registered proprietor of such Copyright, it shall be lawful
for such justice, court, sheriff, or other person as aforesaid
before whom any such proceeding is taken, and he or they is and
are hereby required to _grant his or their warrant, to search
in the daytime such house_, shop, or other place, and if any
such copy, repetition, or imitation, or any work which may be
reasonably suspected to be such, shall be found therein, to
cause the same to be brought before him or them, or before some
other justice of the peace, court, sheriff, or other person as
aforesaid, &c.
15. If any person, elsewhere than at his own house, shop,
or place of business, shall hawk, carry about, offer,
utter, _distribute_, or sell, or keep for sale, hire, or
_distribution_, _any_ unlawful copy, repetition, or _colourable
imitation_ of any work of fine art in which, or in the design
whereof, there shall be subsisting and registered Copyright
under this Act, all such unlawful articles may be _seized
without warrant, by any peace officer, or the proprietor of
the Copyright, or any person authorised by him_, and forthwith
taken before any justice of the peace, court, sheriff, &c.
23. Under this Act there shall be kept at the hall of the
Stationers’ Company by the registrar appointed by the said
company for the purposes of the Act passed in the sixth year of
the reign of her present Majesty, intituled “An Act to amend
the Law of Copyright,” three several books or sets of books,
which shall be called as follows:
(1.) The register of proprietors of Copyright in
original drawings and pictures:
(2.) The register of proprietors of Copyright in
original photographs and engravings:
(3.) The register of proprietors of Copyright in
original works of sculpture.
In the first of such registers shall be entered a memorandum of
every Copyright, _or of any limited legal interest therein_, to
which any person shall claim to be entitled under this Act in
any original drawing or painting, and also of _any subsequent
assignment_ of such Copyright or _limited legal interest
therein_; and such memorandum shall contain a statement of the
several particulars required by the form applicable for that
purpose in Part I. of the third schedule to this Act; and in
addition thereto the person registering shall annex to the
memorandum under which he requires the entry to be made an
outline, sketch, or photograph of the drawing or painting to
which such memorandum refers, &c.
⁂ Again adverting to the case of Ireland, let it be remembered it was
only so late as 1836 that an Act was passed “to extend the protection of
Copyright in prints and engravings to Ireland.”
This Bill of Lord Westbury’s, after having been referred to a Select
Committee of the House of Lords, has been withdrawn, but only for the
present Session. The reason for withdrawal is found in amendments
recommended by the Committee, one of which is that it should extend only
to the United Kingdom and Channel Islands. The subjoined extracts from a
printed defence of the Bill, by D. Roberton Blaine, Esq., will be read
with interest, as showing how influential is the quarter whence the Bill
emanates, and not less on account of their allusion to Patent-right and
their other interesting contents.
This Bill has been prepared by direction of the Council of the
Society of Arts, Manufactures, and Commerce, in consequence of
a memorial having been presented to the Council, signed by a
considerable number of the most eminent artists and publishers
resident in London....
There is no Copyright in the _ideas_ embodied in a work of
literature or of fine art....
It is quite otherwise according to our Patent-Laws. Under them
the _idea_ of an author is everything, so to speak, and is
rigidly protected. Thus, for example, suppose A produces a new
manufacture by means of a very imperfect and clumsy machine,
or chemical process, which he invents and patents; and suppose
afterwards that B invents a very perfect and simple machine, or
chemical process, whereby he can produce the same manufacture
as A, but better and cheaper than his. In such a case the
Patent-Laws prohibit B from making any use of his improvement
for making the manufacture of A during the continuance of his
Patent, unless with his consent. This arises from its being
a leading _principle_ of our Patent-Laws, that where a new
invention has been secured by a valid and existing Patent no
one is allowed during the continuance of that Patent to produce
_the same results by a mechanical or chemical equivalent_.
Hence the great source of complaints and of the litigation
arising under our Patent-Laws. Thus it is that a patented
manufacture precludes any improvements therein except by the
patentee, or with his consent, during the term of his Patent....
In Italy, at the expiration of such forty years, although any
one may then make and sell copies of the work, the person doing
so must, during a second term of forty years, annually pay to
the proprietor of the Copyright 5 per cent. (calculated at the
_published_ price) upon all copies sold by the person so making
and selling such copies. As to France, her Copyright-Laws are
expressly extended to all her colonies. And, by the 8th Article
of Her Majesty the Queen’s Copyright Convention with France,
dated 3rd November, 1851, _reciprocal_ protection is agreed to
be given in favour of Copyright works _first_ published in “the
territories of France,” or in “the British dominions.” This
appears to show that both States clearly intended that such
reciprocal protection should extend to their colonies. It is
also stipulated by the 7th Article that “pirated works _shall
be seized_ and destroyed.” Now the French law very justly
declares the piracy of Copyright property to be a _crime_
(_delit_), and provides rapid and effectual means for enabling
the proprietor of the Copyright to seize both the pirate
and the fraudulent copies, plates, &c., in his possession.
Yet, according to the present state of the British Artistic
Copyright-Laws, no such powers of seizure, as expressly agreed
by Her Majesty the Queen’s Convention, exist in the British
dominions; nor does any protection whatever for _artistic_
Copyright works extend beyond the United Kingdom; no, not even
to the Isle of Man, or to the Channel Islands!
This important and novel subject is likely soon to receive useful
illustration from a Parliamentary return to be moved for by the Right
Hon. T. H. Headlam. From another of that gentleman’s Returns a
suggestive extract is also subjoined.
It contains evidence that long ago impatience of existing restraints
was in vigorous action in the British Colonies—evidence that payment of
authors by royalties is a system that commands State concurrence—and
evidence how over-ready the State is, or how circumstances are formed so
as to compel it, to undertake work for authors and publishers by means
of its Custom-house officers. On this last point I am happy also to
produce an important paper kindly furnished by Michael Daly, Esq., of Her
Majesty’s Customs. Mr. Daly’s note deserves to be pondered in prospect
of the re-appearance next Session of the Board of Trade’s “Trade-Marks
Registration Bill.”[11]
The extracts which I have agglomerated show that the idea of employing
officers of _Excise_ as well as those of Customs is seriously propounded,
but this is by no means all the useful information they convey.
[11] Would it not be well to confine registration to _names_ of firms or
premises without recognising _marks_?
COLONIAL DUTIES ON COPYRIGHT WORKS.
_Return of all the Colonies and British Possessions in favour of which
Orders in Council have been issued under the Act 10 and 11 Vict., c.
95, suspending the Prohibition of Importation of Reprints of British
Copyright Works._
NEW BRUNSWICK.—An _ad valorem_ duty of 20 per cent. on the
_bonâ fide_ price of the publication, imposed on importation;
such duty to be transmitted through Her Majesty’s Government
for the benefit of the author.