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XX
COPYRIGHT THROUGHOUT THE BRITISH EMPIRE

English and American systems

Copyright in America has been so much modeled on English statutes, decisions and precedents, that the previous chapters have covered most of the points of copyright law in the United Kingdom. There are two essential points of difference, however, between the English and American systems. British copyright has depended essentially upon first publication, not upon citizenship; and registration and deposit, which are here a sine qua non, have there been necessary only (except in the case of works of art) previous to, and as a basis for, an infringement suit.

First publication and residence

A book first published in the United Kingdom (England, Scotland, Wales, and Ireland) has been ipso facto copyright, under the act of 1842, throughout British dominions; and this protection was definitely extended, by the act of 1886, to a work first published elsewhere in the British dominions. This held whether the author were a natural-born or naturalized British subject, wherever resident; or a person who was at the time of publication on British soil, colonies included, and so "temporarily a subject of the Crown – bound by, subject to, and entitled to the benefit of the laws," even if he made a journey for this express purpose; or, probably but not certainly, an alien friend not resident in the United Kingdom nor in a country with which there was copyright reciprocity. Under the statute of Anne, it was decided by the Law Lords, in the case of Jefferys v. Boosey (overruling Boosey v. Jefferys), that a person not a British subject or resident was not entitled to copyright because of first publication in England, but the statute of 1842 was construed to alter this. In the ruling case under the last-named statute, Routledge v. Low, in 1868, Lords Cairns and Westbury laid down explicitly that first publication was the single necessity, and that copyright was not strengthened by residence; though Lord Cranworth objected and Lord Chelmsford doubted whether this was good law. It was because of this doubt that American authors had been accustomed to make a day's stay in Montreal on the date of English publication of their books. This decision was accepted by the law officers of the Crown and became in 1891 the basis for the reciprocal relations proclaimed by the President of the United States.

Variations in copyright terms

The copyright term in Great Britain has differed for the several subjects of copyright, under the divers acts as stated in previous chapters, the general term being for life and seven years or for forty-two years, whichever the longer. Registration at Stationers' Hall has been requisite only (except in the case of works of art) as preliminary to suit, and infringement previous to registration was punishable. Deposit of one copy in the British Museum has been required within a stated time from publication, but only on penalty of fine and not forfeiture of copyright, and the four university libraries might demand copies. Under the international copyright acts, registration and deposit at Stationers' Hall for transmission to the British Museum was requisite for foreign works; but this was made unnecessary by the adhesion of Great Britain to the International Copyright Union.

The new British code

The Copyright Act, 1911, as amended by the Lords, which became law (1 & 2 Geo. v. c. 46) on Crown approval December 16, 1911, provides a codification for the British Empire as comprehensive as the American code. The act covers as Part I, Imperial copyright, Part II, International copyright, Part III, Supplemental provisions. The act extends throughout His Majesty's dominions, but is not to be in force in a self-governing dominion (Canada and Newfoundland, Australia and New Zealand, and South Africa) unless enacted by the legislature thereof, either in full or with modifications relating exclusively to procedure and remedies or necessary to adapt the act to the circumstances of the dominion, in case of which adoption the legislature may repeal the act or enact supplementary legislation with reference to works first published or whose authors are resident within the dominion. Thus the bill practically permits the self-governing colonies to legislate independently, each for itself within its domain. The act may also be extended by Orders in Council to English protectorates "and Cyprus." Its provisions are also made applicable (by Part II on international copyright) through Orders in Council to subjects or citizens of foreign countries, directly or through separate action by self-governing dominions, under conditions which practically cover countries within the International Copyright Union under the Berne-Berlin conventions, though these are not named in the act; and to countries having reciprocal relations, – with authority to the Crown to withdraw any benefits of the act from citizens of countries not giving reciprocal protection. This code is based largely upon previous British practice, though with considerable extension and improvement.

Scope and extent

Copyright under this code covers "every original literary, dramatic, musical, and artistic work," first published within the included parts of His Majesty's dominions, and in the case of an unpublished work, the author of which was "at the date of the making of the work" a British subject or a resident domiciled within such included parts [or under protection through the international copyright provisions].

Publication

"A work shall be deemed to be published simultaneously in two places if the time between the publication in one such place and the publication in the other place does not exceed fourteen days," or such longer period as may be fixed by Order in Council. Publication is expressly distinguished from performance, exhibition or delivery.

Definition of copyright

Copyright is defined to mean "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever" or any translation thereof, to publish, perform, or deliver the work in public, to dramatize or novelize it, to make any record, roll, film or other contrivance by which it may be mechanically performed or delivered or to authorize any such acts. Architectural works of art are included as to design but not process or method.

Infringement and exceptions thereto

Infringement is comprehensively and sweepingly defined to cover any copying or colorable imitation of any copyright work or the doing by an unauthorized person of "anything the sole right to do which is by this Act conferred on the owner of the copyright." The code specifically excepts from the provisions against infringement (1) any "fair dealing" for private study, research, review or newspaper summary; (2) the use by an artist who has sold his copyright in a work of moulds, sketches, etc., except to repeat or imitate the design of that work; (3) the making or publishing of paintings, drawings, engravings, or photographs of a work of sculpture or artistic craftsmanship, if permanently situate in a public place or building, or (if not in the nature of architectural drawings or plans) of an architectural work of art; (4) the use in collections described and advertised as for school use, of extracts from copyright works (not themselves published for the use of schools), not more than two from any one author, and not duplicated within five years by the same publisher; (5) the newspaper report of a public lecture, unless specifically prohibited by exhibited notice; and (6) the reading or recitation in public by one person of any reasonable extract.

Term

The copyright term is for the life of the author and fifty years after his death, with provision that after an author's death the Judicial Committee of the Privy Council may, on allegation of the withholding of the work, require grant of license to reproduce, publish or perform it. Posthumous works, works the property of the Crown, photographs and mechanical music reproductions, are protected for fifty years; but no specific term seems to be indicated for anonymous or pseudonymous works as such. Works of joint authorship are protected for fifty years after the death of the author who first dies, or during the life of the author who dies last, whichever the longer period, and such works may be protected by action of any one of the authors. Twenty-five years, or for existing works thirty years after an author's death, any person may under specified conditions publish a copyright work on payment of ten per cent royalty – following an Italian precedent. Compulsory license is also provided for mechanical music reproductions, in case the author permits any such reproduction – following the American provision. University copyrights are continued in perpetuity only for existing copyrights.

Ownership

The author of a work is the first owner of the copyright, except in the case of a work done on order or in the course of contract employment. The owner of a copyright may by an assignment in writing assign his rights wholly or partially, and either generally or as limited to any part of His Majesty's dominions, or for the whole term of copyright or any part thereof, or license accordingly. But no assignment otherwise than by will shall be operative beyond twenty-five years from the death of the author, when the copyright reverts to his natural heirs, following Spanish precedent.

Registration provisions are altogether omitted from the new measure.

Deposit copies

Deposit is required at the British Museum within one month after publication, "of every book published in the United Kingdom" on penalty of fine not exceeding five pounds and the value of the book, and copies must also be supplied to the four university libraries, and for specific classes to the National Library of Wales, on demand – the "best" edition in the case of the British Museum, and that of which most copies are sold in the other cases.

Importation

Importation of "copies made out of the United Kingdom … which if made within the United Kingdom would infringe copyright," is prohibited, on notification in writing to the Commissioners of Customs (the Isle of Man being specifically excepted from this provision), and similar prohibition is authorized as to British possessions. The use in the section on infringement of the phrase "imports for sale or hire," taken from the act of 1842, involves a possible limitation of this prohibition which is discussed in the chapter on importation.

Remedies

The usual civil remedies are provided, actions being limited within three years from the infringement. If the real name of an author, or in the absence of such, the name of a publisher, is indicated on a work, that is prima facie evidence of copyright ownership in the prosecution of infringement. An infringer may be relieved from damages (but not from injunction) on proving innocence; architectural infringements may not be enjoined after commencement of the structure, but are punishable by damages. On summary conviction any person who knowingly for sale or hire or for trade makes, sells or lets, distributes, exhibits, or imports infringing copies, shall be liable to a fine not exceeding forty shillings for each copy or fifty pounds for the same transaction, or in the case of a second offense, to imprisonment not exceeding two months; and similar provision is made as to infringing performance. The summary remedies in the musical copyright acts of 1902 and 1906 remain unrepealed.

General relations

The provisions of the code are extended to cover existing copyrights. Common law rights are specifically abrogated by provision confining the protection of an unpublished as well as a published work to statutory provisions.

Acts repealed

The measure repeals all existing enactments except sections seven and eight (modified) of the fine arts copyright act, 1862 (25 & 26 Vict. c. 68), which deal with fraudulent signature or marketing of art works and concern fraud rather than copyright, and the musical copyright acts of 1902 and 1906, providing summary remedies for piracy of musical works; and the provisions regarding copyrights of the customs and revenue acts are continued with modifications conforming them to this act.

The act does not apply to designs capable of being registered under the patents and designs act, 1907. Schedules of existing and corresponding rights and of enactments repealed are appended to the bill. The act is effective July 1, 1912, unless earlier made effective by Order in Council.

Changes from original bill

It may be noted that the new British measure had been much modified, – especially in the Committee stage, where efforts to reconcile conflicting interests were chiefly effective, – since its introduction as a Government measure in 1910. In the earlier form it was provided that the contributor of an article or contribution, periodical articles included, might retain a specific copyright except as against the proprietor of a collective work, and that an article in a newspaper, not being a tale or serial story, might be reproduced in another newspaper in default of a notice expressly forbidding it, providing the source were duly acknowledged. University copyrights, new as well as old, it was then proposed should still be perpetual. Copyright, it was specifically provided, should not pass from an artist when he sells his original work except by agreement in writing, but subsequent transfers of the original work from an owner also of the copyright, should transfer the copyright – but this is probably taken as implied in the new law. Registration at Stationers' Hall was continued and made applicable to all classes of works, and though optional, it was practically necessitated by the ingenious provision that in the absence of such registration an infringer might plead ignorance and be freed from damages. The summary provisions of the musical copyright acts were extended to cover other works, and these acts it was therefore proposed to repeal. The compulsory license provision limiting musical copyright and certain provisions as to ownership and term were introduced in the Committee stage. The word "infringing" was substituted for "piratical" in Parliamentary debate to conciliate a supersensitive member. The compromises and modifications indicated brought the measure before Parliament as an "agreed upon" bill.

Isle of Man

Channel Islands

The Isle of Man applies the copyright law of the United Kingdom, and has a supplementary law of 1907, applying British legislation on engravings and prints, sculpture, paintings, etc., and musical compositions, quite up to date, embodying in the latter section the latest provisions as to summary proceedings in the protection of music – this being enacted by "the Deemsters and Keys in Tynwald assembled," as the tiny Manx parliament is quaintly called. The Channel Islands of Jersey and Guernsey also apply British copyright law by ordinances or local legislation in their respective domains.

International relations

Great Britain was one of the original parties to the Berne convention and accepted the additional act, but not the interpretative declaration of Paris, and the passage of the new measure will permit adhesion to the Berlin convention. She has a special treaty with Austria-Hungary (1893), sometimes cited as the treaty of Vienna of 1893, and has been in reciprocal relation with the United States as a "proclaimed" country since July 1, 1891.

Colonial relations

The British dominions outside of the United Kingdom and Ireland are, in general, under the like provisions of Imperial copyright law, including the law of 1842 and earlier unrepealed or subsequent acts, the colonial copyright act of 1847 and the international copyright act of 1886 being especially important. They are also generally included under British international relations embracing the Berne-Paris provisions of the International Copyright Union and the reciprocal relations with the United States, but with the exception that in the Austria-Hungary treaty, Canada, New South Wales and Tasmania (both now part of the Australian Commonwealth), and Cape Colony (now part of the Union of South Africa) are not parties, because these colonies did not exercise the right of ratification specifically reserved to individual colonies.

Judicial confirmation

The application of the Berne convention to the British possessions was upheld in an important Canadian decision, when in 1906 Justice Fortin, in Mary v. Hubert, in the Quebec Court of King's Bench, held that the British international copyright act in relation with the Berne convention protected a French work from Canadian reprint, though the author had not complied with specific Canadian requirements, – a most significant decision in defense of international copyright.

Local legislation

Under the colonial copyright act of 1847, which declared local legislation or decrees repugnant to the Imperial law to be null and void, local legislation consonant with Imperial acts was permitted, subject to approval by the Crown through Orders in Council, in which case prohibition of importation of foreign reprints might be suspended by Order in Council with regard to the particular colony. Under this act, local legislation with special provisions existed in British India and other colonies, as well as in the "self-governing dominions," which last now include Canada and Newfoundland, Australia and New Zealand, and South Africa, and which have somewhat greater powers of local legislation. Under these local provisions, the Imperial law still prevails, local legislation being concurrent but not necessarily co-terminous with it, as is particularly noticeable in Canada, where there has been more or less conflict between the Imperial and Dominion authorities. Local protection may thus be extended, for instance, to works not first published within the British possessions, or in a unionist country, but copyright cannot be denied to works thus first published; and the Crown disapproves or disallows laws or provisions construed by the Imperial authorities to be repugnant to Imperial law. More than a score of colonies have adopted local laws or ordinances, some of which have been disallowed by the Crown. The status of copyright in the several colonies is thus indefinite and confusing, even to the best-informed English jurists, and can seldom be stated with certainty. Under the new British code, the "self-governing dominions" will have the right to accept the Imperial code, either completely or with adaptation to local judicial methods, or to legislate independently.

Canadian copyright history

In respect to the colonies now constituting the Dominion of Canada, before British copyright protection had been definitely extended to works first published outside the United Kingdom, Lower Canada in 1832, Canada (upper) in 1841 and Nova Scotia in 1847 had passed copyright statutes to protect authors of books first published in the respective provinces. On the passage of the Imperial act of 1847, authorizing the suspension of that portion of the act of 1842 which prohibited the importation of foreign reprints of British copyright works, as to any colony in which provision should be made by local legislation for protecting the rights of British authors, Orders in Council were passed for Nova Scotia and New Brunswick in 1848 and for Canada in 1850, suspending such prohibition, following satisfactory protection accorded by local acts in those years. These local acts provided for the collection of an impost on foreign reprints of works by British authors in favor of the author or copyright owner.

Dominion of Canada: early acts

In 1867 the British North America act (30 & 31 Victoria, c. 3) was passed, providing for the union of Canada and the other North American provinces (except Newfoundland) under the title of the Dominion of Canada, and section 91 of this act specified copyright among the subjects which were to be within the legislative authority of the Parliament of Canada. At the first session of the first Dominion Parliament in 1868, a general copyright act was accordingly passed, which was followed in the same year by an act continuing the customs duty of 12-1/2 per cent on foreign reprints of British copyright works, and an Imperial Order in Council was passed July 7, 1868, continuing Canada within the provisions of the foreign reprints act of 1847. The returns to British authors from this duty proved so small – only £1084 in ten years – that there was much dissatisfaction, and this impost was finally discontinued in 1895, whereupon the suspension under the Imperial act of 1847 of the prohibition of importation ceased to be in force in Canada and foreign reprints of British copyright works were again under the Imperial law prohibited.

Acts of 1875

In 1872 a new Canadian copyright act was passed, but it was disallowed by the Imperial authorities, whereupon, in 1875, the Parliament of Canada passed a new act, carefully drawn to avoid conflict with Imperial legislation. To remove any doubts as to its validity, the "Canada copyright act" of 1875 was passed by the British Parliament to authorize the royal assent. This Imperial act forbade the importation into the United Kingdom of colonial reprints, though authorized for the Canadian market by British authors (and therefore not piracies), of any work which might be copyrighted in Canada, and in which copyright subsisted in the United Kingdom. The Canadian act of 1875 then received the approval of the Crown, and as replaced and substantially re-enacted by the Revised Statutes of Canada, 1886 (c. 62), – which also included (as c. 37) the amendatory act of 1886, prohibiting the importation of "reprints of Canadian copyright works and reprints of British copyrighted works which have been also copyrighted in Canada," – is still in force, being now Revised Statutes, 1906, c. 70, pt. I, as the fundamental Canadian copyright law, subject to amendments since passed and approved. The Imperial and Canadian laws of 1875, taken together, make it possible to issue in Canada cheaper reprints of British copyright works, by arrangement with the author or copyright owner, without interfering with the more costly English editions.

License acts disallowed

It should here be noted that the Canadian act of 1889, as amended by the Canadian act of 1895, constituting Part II of chapter 70 of the Revised Statutes, 1906, has never been approved and brought into force by proclamation of the Governor-General. The act of 1889, following the Imperial international copyright act of 1886, extended Canadian copyright on condition of registration with the Minister of Agriculture, and printing and publication or production in Canada within one month after publication or production elsewhere, and provided that the Minister of Agriculture might grant licenses, not exclusive, for the production of works not thus protected on an undertaking to pay to the author ten per cent royalty on the retail price, in which case importation of foreign-made (but not British) editions might be prohibited during the copyright period. The act of 1895 extended this license system to works which the copyright proprietor failed to keep in print in Canada, unless he should give satisfactory assurance of prompt reissue. These acts, as noted, never became effective.

The Fisher act, 1900

In 1900 an amendment to the copyright act was passed which is sometimes referred to as the Fisher act. It provides that if a book, as to which there is subsisting Canadian copyright under the copyright act, has first been published in any part of the British dominions other than Canada, and the owner of the copyright has granted a license to reproduce in Canada an edition of such book designed for sale in Canada only, the Minister of Agriculture may prohibit the importation into Canada, except with the written consent of the licensee, of any copies of such book printed elsewhere, excepting two copies each for the use of public or institution libraries. There is some question as to the compatibility of this act with Imperial law.

Minor acts

Short form of notice

An act of 1887 had authorized the transfer from the Minister of Agriculture to the Minister of Trade and Commerce of the registration of industrial designs and trade-marks, but this transfer has never taken place. The acts of 1890 and 1891 provided for copyright suits in the Exchequer Court of Canada in the name of the Attorney-General or at the suit of any person interested. The act of 1895 also contained a provision adding to the two deposit copies required for Canada a third for deposit in the British Museum. Finally an act of 1908 substituted the short form of copyright notice, "Copyright, Canada, 19__, by A. B." This completes the history of Canadian copyright legislation.

Proposed Canadian copyright code, 1911

The copyright legislation of Canada will presently be replaced by a comprehensive code, utilizing the permission granted by the new Imperial copyright measure to self-governing dominions. The new bill, of which the original text, as submitted to Parliament April 26, 1911, is given in full in the appendix, will establish relations between the Dominion of Canada and the Imperial authority closely similar to those established by the Australian act of 1905, between that Commonwealth and the home government. It pushes still further the precedent of "protection to home industries" followed by American copyright legislation since 1891, and is a far more drastic measure, evidently in retaliation against the United States and with preferential relations toward Great Britain in view. Americans can scarcely criticize, however, the logical application in Canada of legislation on this side of the border. Copyright is to "subsist in every original literary, dramatic, musical and artistic work the author of which was at the date of making the work a bona fide resident in Canada," not first published outside Canada (simultaneous publication being defined as within fourteen days), conditioned on registry before publication, and the manufacture of every copy within Canada. One registration of a periodical is to protect all future issues. Copyright it is proposed to define broadly, as in the new English bill, including the right "if the work is unpublished, to publish the work," thus bringing unpublished works within the statute law and probably excepting them from common law protection; and protection against mechanical music reproduction is also to be included. The term is to be for the life of the author and fifty years thereafter, with the new British proviso as to works of joint authorship, that the term is to be for the life of the author who dies first and fifty years thereafter, or the life of the author who dies last, whichever period is the longer. Assignment of copyright must be in accordance with the acts, and be registered. Importation of copies made out of the British dominions is prohibited. In case of a license for a Canadian edition of a book, copies printed elsewhere may be prohibited importation, except two copies for library use. Copyright may also be extended to foreign citizens under arrangements made by the governor in Council. British subjects resident elsewhere than in Canada may be brought under the act by Order in Council.

Imperial and Canadian copyright

Requisites for domestic copyright

The Imperial and Canadian copyright laws, apparently a complexity of complexities, are construed with relation to each other and thus do not conflict. Each is good pro tanto. The Canadian copyright law permits any person domiciled in Canada or in any part of the British possessions, or any citizen of any country which has an international copyright treaty with the United Kingdom, who is the author of a literary, scientific or artistic work, to obtain copyright in Canada for twenty-eight years, with a right of renewal for fourteen years to the author, if living, or to his widow or children, if he is dead, conditioned on re-registration within one year after the expiration of the original term, publication of a renewal notice in the Canadian Gazette and fulfillment of the obligations of original copyright. The requirements for obtaining domestic copyright in Canada are that the work shall be printed and published in Canada, shall be registered and three copies thereof deposited at the Department of Agriculture (Copyright Branch) before publication, and that each copy published shall bear the notice as cited above. In the case of paintings, drawings and sculpture, the original work may be protected by deposit of a written description instead of copies.

Imperial and local protection

Under the Imperial copyright act of 1886, providing that a book first published in any part of the British dominions shall have copyright throughout those dominions, works are protected in Canada under that act. Subjects or citizens of a country which has no international copyright relations with the United Kingdom may obtain copyright in Canada under the Canadian law by showing that they have British copyright in the work and complying with the other Canadian requirements. Copyright obtained under the Canadian copyright law, so far as it relates to books first published in the British dominions, is in addition to and concurrent though not co-terminous with Imperial copyright. The Copyright Branch in the Department of Agriculture is in charge of the Registrar of Copyrights, Trade Marks and Designs, a post filled since 1906 by P. E. Ritchie, Esq. Canadian copyright may be obtained in a work although the Imperial copyright may have been lost by reason of first publication having been made outside of the British dominions or treaty relationship, the Canadian law providing that literary works may be protected when printed and published in Canada, whether they are so published for the first time or contemporaneously with or subsequently to publication elsewhere.