Page:EB1911 - Volume 07.djvu/139

Rh 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 1905 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 Copyright 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 committed on any premises.

13. The right of foreigners under the English copyright acts produced at one time an extraordinary conflict of judicial opinion. A foreigner who during residence in the 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 be 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. 100, 1868, Lord Cairns said,

“The aim of the legislature is to increase the common stock of the literature of the country; and if that stock can be increased by 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 wording 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 1870, 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 in council, made under the authority of the International 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 the 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