Page:Copyright, Its History And Its Law (1912).djvu/217

 is the only country in the International Copyright Union which has declined to accept the declarative interpretation made in Paris in 1896 of the Berne convention of 1886, declaring that performance does not constitute publication. Thus if a dramatic or musical work is first publicly performed outside the British dominions, the performing right is extinguished therein, unless protected under the international copyright acts, though first publication outside the British dominions of a work first publicly performed within them, may not extinguish the performing right.

The confusion of judicial interpretations, as to the relations between performance and publication, in international as well as domestic copyright, was invited by the unfortunate draftsmanship in the copyright act of 1842, in which the clause making first performance "equivalent in the construction of this act to the first publication of any book" may be taken either in a comprehensive sense or merely as defining the starting-point for performing right as well as for copyright in the specific sense.

The question of what is public performance is of some importance, especially in Great Britain, where playright is not infringed except by representation in a place of dramatic entertainment and where it has been held that any place in which a dramatic piece is publicly performed is for the time a place of dramatic entertainment. A public performance is probably one to which the public in general is admitted either by sale of tickets or by invitation; and this would probably include a performance given before a society to membership in which the public might be admitted, although a performance limited to a certain class of the public might not be construed as a public representation. Where "Our boys" was performed