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Originally appearing in Volume V07, Page 125 of the 1911 Encyclopedia Britannica.
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LITERARY COPYRIGHT 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 Histork4l multiP1Ying copies of literary works, and this super- vision 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 copyright acts, referred to below, except from their provisions the 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 copyright are the English translation of the Bible, the Book of Common Prayer, statutes, orders of privy council,proclamations, almanacs, Lilly's Latin Grammar, year books and law reports. The copy- right 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 publica- tion 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 parliment. 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-andtwenty 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 arch-bishop 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 copy-rights 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 copy-right 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 copyright of their works. Three judges, among whom was Lord Mansfield, 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 destroycopyright 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 1794. 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 18o1 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." 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 1842 . principal clause is the following (§ 3) : That the copy- right 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 '836, 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 copyright granted by the act.' But the proprietor may not publish 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. 5. During the last quarter of the '9th 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, '889, 40 Ch.D. 425) the author or compiler has really put his own brain-work into it. 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 News- and expenditure of newspapers that obtain for the papers. public the earliest news and arrange it for publication. It is settled law since 188' (Walter v. Howe, '7 Ch.D. 708, over-ruling Cox v. Land S' Water Journal Co., '869), that a newspaper is a book within the meaning of the act, and can claim all rights that a Look has under the Copyright Act. Thus, leading articles, special articles, and even news items are protected (Walter v. Steinkcpff, 1892, 3 Ch. 489; Exchange Telegraph Co. v. Gregory ' Such articles must be paid for, in order to vest copyright in the proprie tor. The leading case about encyclopaedias is that of Lawrence and Bullen v. Aflalo, decided by the House of Lords in 1904.and Co., '896, i 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 'goo). 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. 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 publica- Lectures. tion 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, '887, 12 A.C. 326. 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 letters. Private 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.) 'oo, 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). 9. The question of what is an infringement of copyright has been the subject of much discussion. It was decided under the statute of '709 that a repetition from memory was not a publication so as to be an infringement of Test of infringe. copyright. In the case of Reade v. Conquest, '861, merit. 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 copyright does more than make that fair use of the original author's 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 Recent extensions. 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 makinng 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. 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, r 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. 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 Titles of of another. This is, however, not copyright, but a works. question of ordinary fraud. The name of a journal (if 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+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'goo, could not successfully attack each other, because neither had an established reputation when first adopted. 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 Drama and copies is a piracy of the usual sort. This was decided to music. 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 copy-right 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 Copyright Act 1842 extended this right to musical compositions, and made 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 copy-right 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 copyright is the case of Boosey v. Whight (1899; followed in other 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 Injurious works. 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 19o5 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 Copy-right Act 1906) made it a criminal offence, punishable with fine and 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 cgmmitted on any premises. 13. The right of foreigners under the English copyright acts produced at one time an extraordinary conflict of judicial Rights of opinion. A foreigner who during residence in the foreigners. 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 he 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. too, 1868, Lord Cairns said, " The aim of the legislature is to increase the common stock ofthe literature of the country; and if that stock can be increased lay 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 wcrding 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 187o, 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. 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 The Bern in council, made under the authority of the Inter- convention. national 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 t,f 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 Copyright Act of 1886, and an order in council made under that act, 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 1968, 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 copyright, especially with regard to singing and talking machines, and also in the matter of newspaper copyright. The conference adopted a threefold division of newspaper matter : (t) 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 Copyright Act of 1847, and copies of them printed or reprinted elsewhere 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 copyright acts to works first produced in the colonies, while allowing 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 copyright, no Canadian reprints thereof should be imported into the 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 (§ 3). Any person domiciled in Canada, or in any part of the British possessions, or being a citizen of any country having an inter-national 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 con-tinued 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 (§ 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 copyright. If a copyright work becomes out of print, the owner may be 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 pct amending that of 1886 became law. It applies only to books copyright in Canada, and, subject to certain reservations, allows the 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. 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. Foreign We only deal specifically with the history and par- taw ticulars 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 lawtst, 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 too 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 19ot, the term being the author's life and 30 years, or not less than to 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 5o 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 5o years after. Portugal.—Author's life and 50 years after. Russia.—Author's life and 5o years. Spain.—Author's life and 8o years thereafter. Sweden and Denmark provide for a term of the author's lifetime and 5o years after. Switzerland.—Author's life and 30 years after. Turkey.—Author's life, or 40 years, whichever is the longer. 17. United States.—American copyright is provided for by an act of March 1909, which replaced acts of July 187o and March 1891, both of which had introduced important American modifications in the original act of 1790. Under all law. 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 copy-right 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 r85o 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 copyright was continuous; and in America it was recognized by authors, 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 copy-right 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 r886 the twelfth inter-national 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 copyright leagues were organized in Boston, Chicago, St Louis, 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. 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' Copyright League and the Publishers' Copyright League, and after otAct of s sittings extending to a period of three years, a new bill 1909. 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: Copyright is granted to authors for twenty-eight years from the date of first publication, whether the copyrighted work bears the author's true name or is published anonymously or under Term of an assumed name. A further term of twenty-eight years (Shi. is granted to the author if at the expiration of the first coPYn 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 copyright may be secured under the act " shall include all the writings of an author." For purposes of registration the act classifies (1) books, including composite and cyclopaedic works, directories, Definition gazetteers and other compilations; (2) periodicals, includ- of copying newspapers; (3) lectures, sermons, addresses, pre- right pared for oral delivery; (4) dramatic or dramaticomusical 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; (to) 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 "Mann- manufactured within the United States, the term " manufacture" factured" including the setting of type as well as printing clause. 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 tExemexptio otn languages other ftha book of an English Q1beinggel language from the foreign requirements as to type-setting in the United States. On book. 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 " copy-right ' 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 1i inclusive, of the classification given above, the copyright notice may consist of the letter C enclosed within a circle, thus: ©, 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. The act of 1909 gives an interim protection to a book published abroad in the English language before publication in the United Interim States, the deposit in the copyright office, not later than Int eri thirty days after its publication abroad, of one complete protec- don copy of the foreign edition, with a request for the reserva- tion of the copyright and a statement of the name and nationality of the author and copyright proprietor, securing copy-right for thirty days from the date of deposit. Any person infringing Infringe- a copyright work is liable to an injunction, and to pay such went 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, Musical ten dollars for every infringing performance; all infringcampusi- ing copies and devices must also be delivered up for de- dons. struction. 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 ofnotation 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 (i) 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 Transfer and that in the material object representing the copyright, and as- and enacts that the sale or conveyance of the material si anient object shall not of itself constitute a transfer of the copy- ofcopyright. Transfer of copyright in the United States is to be right. effected by an instrument in writing signed by the pro- prietor 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 copyright must be recorded in the copyright office within three 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 for-bidden of any piratical copies of a copyrighted book or of any copies not produced in accordance with the manufacturing fmportaprovisions of the act (although authorized by the author tbn of or proprietor), but importation is allowed to any society copyright or institution incorporated for educational, literary, works. 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; loth 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; loth 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 copyright under the provisions of the Bern convention throughout the territory of the several states that are parties to that convention.
End of Article: LITERARY

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