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§ 189. “Copyright.”

© Copyright is the right which an author or artist has to prevent the re-publication of his published literary or artistic productions, including books, designs, drawings, engravings, paintings, photographs, musical compositions, and dramatic pieces. It must be distinguished from the property which an author has in his unpublished works, which is sometimes loosely called “copyright.” At common law and independently of statute authors have property in their unpublished literary and artistic works. (Southey v. Sherwood, 2 Mer. 435.)

Whether, before the Copyright Acts, authors had at common law any exclusive right in their works after publication, is a question which has been the subject of much legal argument, but as to which authority has been and is still divided. In Millar v. Taylor (4 Burr. 2303) it was held by a majority that at common law an author and his assigns had a perpetual copyright in his published works, and that this right was unaffected by the statute 8 Anne, c. 21. In Donaldson v. Becket (4 Burr. 2408), Millar v. Taylor was overruled by the House of Lords, a majority being of opinion that, though the common law right existed, it had been taken away by the statute. The weight of modern opinion seems to be against the existence of the common law right, but the question is now one of merely historic interest, as copyright in published works is now wholly regulated by statute. (Jefferys v. Boosey, 4 H.L. Cas. 815; Read v. Conquest, 30 L.J. C.P. 209; Wheaton v. Peters, 8 Pet. [U.S.] 591; Copinger on Copyright, 3rd. ed. pp. 27–35.)

The first Act which directly recognized copyright in books after their publication was 8 Anne, c. 21, 1709, by which severe penalties were provided against infringers of copyright, such rights being secured for a period of fourteen years from registration; a term which was afterwards extended to twenty eight years. Copyright in prints and engravings was established in 1735 by the Act of 8 Geo. II. c. 13; since amended by the 15 and 16 Vic. c. 12. Copyrights in designs for manufactures was secured in 1787 by 27 Geo. III. c. 38, which has been amended by subsequent Acts. By the Act 5 and 6 Will. IV. c. 65 the right of printing and publishing lectures belongs to the lecturer, subject to compliance with certain conditions. (Caird v. Sime, 1887, 12 App. Cas. 326.)

By the Act 1 and 2 Vic. c. 59, passed in 1838, the copyright of works published in foreign countries is secured against infringement within the British Dominions, provided the law of those countries gives similar protection to the works of British authors. Before the statute the courts would not protect a copyright belonging to a foreigner.


  ― 594 ―
(Delondre v. Shaw, 2 Sim. 237.) This Act was repealed and amended by 7 and 8 Vic. c. 12, which was afterwards amended by 15 and 16 Vic. c. 12. The last Imperial Act relating to international copyright was 49 and 50 Vic. c. 33, passed in 1886, after the holding of the international conference at Berne, where the draft of a copyright convention was agreed to.

The Act 5 and 6 Vic. c. 45, passed in 1842, amended and consolidated the law of copyright in books, and is the law which now regulates literary property throughout the Empire to this extent, that a copyright registered in England is valid and may be enforced in the courts of every British possession. This is one of the few Imperial statutes passed during the present reign the operation of which extends to every part of the Queen's Dominions. By this Act copyright in literary works is defined as the sole and exclusive liberty of printing or otherwise multiplying copies of any subject; and it is declared to belong to the author and his assigns, and to endure for the whole term of his life and for seven years after his death, or, if that term of seven years expires before the end of forty-two years from first publication, then for such period of forty-two years. Persons pirating a copyright work are liable to a special action for damages and may be restrained by injunction. The protection of this Act also extends to musical compositions and dramatic pieces. Sec. 15 prohibits her Majesty's colonial subjects, whatever may be their local laws, from printing or publishing in the colonies without the consent of the proprietor any work of which there is a copyright in the United Kingdom. It also prohibits the importation into any British possession of any foreign reprint of works first printed and published in the United Kingdom and entitled to a copyright.

In Routledge v. Low (1868), L.R. 3 H.L. 100, it was held that, notwithstanding the fact that Canada had a Legislature entitled to pass laws concerning copyright, Canada was included in the general words of sec. 29 of the Imperial Copyright Act of 1842.

That Act was afterwards amended by 10 and 11 Vic. c. 95 (1847), which provided that in case the legislature of any British possession should pass an Act making due provision for securing or protecting the rights of British authors in such possession, and transmit the same to the Secretary of State, and in case Her Majesty should be of opinion that such Act was sufficient for the purpose of securing to British authors reasonable protection within such possession, it should be lawful for Her Majesty to express Her Royal approval of such Act, and thereupon, by Order in Council, to suspend, so long as the provisions of such Act should continue in force in such colony, the provisions of the 5 and 6 Vic. c. 45, against the importing, selling, or exposing for sale of foreign reprints of British copyright works.

The Royal assent was refused to the Canadian Copyright Bill of 1872 on the ground that it was repugnant to the provisions of the Imperial statute. In a despatch dated 15th June, 1874, addressed by Lord Carnarvon, Secretary of State for the Colonies, to the Governor-General of Canada, his lordship pointed out that the effect of the Canadian Constitution giving the Parliament of the Dominion power to legislate with respect to copyright was to enable it to deal with colonial copyright within the Dominion, and that it was not intended to interfere with the rights secured to authors by the Imperial Act or to override the provisions of that Act. “The Imperial Copyright Act, 5 and 6 Vic. c. 45,” wrote his lordship, “is, as you are aware, still in force in its integrity throughout British dominions, in so far as it prohibits the printing in any part of such dominions of a book in which there is a subsisting copyright under that Act without the assent of the owner of the copyright.”

Under the power conferred by the Imperial Act, 10 and 11 Vic. c. 95, the Dominion Parliament, in 1875, passed 31 Vic. c. 56 in order to secure to authors the reasonable protection contemplated by the Imperial Act. It provides that any author domiciled in Canada or any part of the British possessions, or being a citizen of a foreign State having an international copyright treaty with Great Britain, should be entitled to copyright in Canada for twenty-eight years, and renewal of it for fourteen years to himself, if he were still alive, and if not to his widow and children, but to no one else, who might be


  ― 595 ―
in possession of the copyright, for any work, literary, scientific, or artistic, printed and published or reprinted or republished in Canada, with the reservation that the exclusive privilege should cease in Canada at the same time that it expired for any work anywhere else.

The conditions precedent to securing the protection of this Canadian Act were (1) that such works should be recorded and copyrighted in Canada; (2) that such works should be printed and published, or reprinted or republished in Canada, or, in the case of works of art, that they should be produced or reproduced in Canada, whether they were so published or produced for the first time or contemporaneously with or subsequently to publication or production elsewhere: provided that in no case should the exclusive privilege in Canada continue after it had expired elsewhere; (3) that no immoral, or licentious, or irreligious, or treasonable, or seditious work should be the subject of such registration or copyright. By Clause 15 of the Act, works of which the copyright had been granted and were subsisting in the United Kingdom, and copyright of which was not secured or subsisting in Canada under any Canadian or Provincial Act, should, upon being printed and published or reprinted or republished in Canada, be entitled to copyright under the Act; but nothing in the Act should be held to prohibit the importation from the United Kingdom of copies of such works legally printed there.

One legal result of this Canadian measure was that, if the proprietor of an English copyright did not register and publish in Canada, foreign reprints could be imported into Canada upon payment of a royalty, to be appropriated for his benefit. The reason for this was that under the protection of the Imperial system, United States authors could secure copyright in Great Britain and her possessions by publishing in England, and thus secure the control of the Canadian market, whilst a Canadian author could not obtain such privileges in the United States.

Her Majesty was empowered to assent to this Bill, by the (Imperial) Canada Copyright Act, 38 and 39 Vic. c. 53, and an Order in Council was then promulgated suspending the provisions of 5 and 6 Vic. c. 45, so far as it prohibited the importation into Canada of foreign reprints of books first published in the United Kingdom and copyrighted there.

The effect of this combination of Canadian and Imperial legislation was considered in the Canadian case of Smiles v. Belford (1877), 1 Ont. App. 436, in which an injunction was applied for on behalf of the holder of an English copyright, under the Imperial Act, 5 and 6 Vic. c. 45, to restrain the defendants from publishing a reprint of the plantiff's work in Canada. The point was raised in this case, though afterwards abandoned by counsel before the Court of Appeal, that the Imperial Parliament, by sub-sec. 23 of section 91 of the British North America Act, had divested itself of all power respecting British copyright in Canada, and that the Canadian Copyright Act, 38 Vic. c. 88, had, by virtue of the Imperial Canada Copyright Act, 1875, 38 and 39 Vic. c. 53, superseded the Imperial Copyright Act of 1842, and required all authors desirous of obtaining copyright in Canada to print and publish and register under the new Act, which the plaintiffs had not done. The defendant further contended that the provisions of the Canadian Act must be complied with, in order to give copyright in Canada. Proudfoot, V.C., refused to sustain these views and granted the injunction asked for. He said: “There is nothing indicating any intention of the Imperial Parliament to abdicate its power of legislation on matters of this kind.” On appeal to the Ontario Court of Appeal, this decision was affirmed. Burton, J.A., entirely concurred in the view of Proudfoot, V.C. Referring to Routledge v. Low, in which it had been unsuccessfully contended that as Canada had a legislature of her own she was not included in the general words of section 29 of the Imperial Act, 5 and 6 Vic. c. 45, whereby that Act was extended to every part of the British dominion, he said: “What the British North America Act intended to effect was to place the right of dealing with colonial copyright within the Dominion under the exclusive control of the Parliament of Canada, as distinguished from the provincial legislatures, in the same way as it has transferred the power


  ― 596 ―
to deal with banking, bankruptcy, and insolvency, and other specified subjects, from the local legislatures, and place them under the exclusive jurisdiction and control of the Dominion. I entirely concur with the learned Vice-Chancellor in the opinion he has expressed, that under that Act no greater powers were conferred upon the Parliament of the Dominion to deal with this subject than had been previously enjoyed by the local Legislatures.” (1 Ont. App. 443, Wheeler, Conf. Can. pp. 92–3.)

The Canadian Copyright Act, 1889 (which contained a clause suspending its operation until proclamation by the Governor-General), made regulations operative in Canada which differed from those existing under Imperial legislation, and which were calculated to affect copyrights registered in England. The English law officers advised the Secretary of State for the Colonies that in their opinion “the then existing powers of colonial legislatures to pass local laws on the subject of copyright in books were probably limited to enactments for registration and for the imposition of penalties with a view to the more effectual prevention of piracy, and to enactments within sub-sec. 4 of sec. 8 of the International Copyright Act, 1886, with reference to works first produced in the colony.” With respect to the constitutionality of the Canadian Act, the law officers reported that the powers of legislation conferred on the Dominion Parliament by the British North America Act, 1867, did not authorize that Parliament to amend or repeal, so far as it related to Canada, an Imperial Act conferring privileges within Canada, and that, in their opinion, Her Majesty should disallow the Act. On 25th March, 1890, Lord Knutsford sent a despatch to Lord Stanley of Preston, the Governor-General of Canada, in which he expressed his regret that he was unable to authorize the Governor-General to issue a proclamation to bring the Act into force. (Lefroy, p. 231. Todd, Parl. Gov. in Col., 2nd ed. p. 182.)

COPYRIGHT IN THE UNITED STATES.—In the United States, under the power to secure to authors and inventors the exclusive right to their writings and discoveries, Congress has created the patent and copyright systems of the Union, and regulates and controls them exclusively.

“It can hardly be said that this power is exclusive to the Congress as against the States, in the sense that if the Congress had not occupied the ground the States might not do so. While the States cannot probably amend or supplement the patent and copyright laws of the United States, there is no reason for asserting that, in the absence of any patent and copyright legislation by Congress, the States may not pass laws to protect the inventions and writings of their own citizens, which will hold until displaced by the legislation of Congress upon the subject. Of course such protection would be very inadequate, as it would not reach beyond the boundaries of the particular State.” (Burgess, Political Sci. II. p. 144.)

Congress may provide for copyright of photographs as works of art or science, so far as they are representations of original intellectual conceptions of the author. (Burrow-Giles Lithographic Co. v. Sarony, III U.S. 53.)

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