Page:The copyright act, 1911, annotated.djvu/35

Rh of the work to the public, and does not include the performance in public of a dramatic or musical work, the delivery in public of a lecture, the exhibition in public of an artistic work, or the construction of an architectural work of art, but, for the purposes of this provision, the issue of photographs and engravings of works of sculpture and architectural works of art shall not be deemed to be publication of such works.

This definition of publication brings the provisions of our law upon this point into substantial conformity with the definition in the Berlin Convention. As the international right of the author may depend upon whether or not his work has been published, and, if published, where it was first published, it is important that all the countries of the union should adopt the same definition. The proviso at the end of the sub-section is a modification of the definition in the Berlin Convention. The Convention is silent upon the question as to how far the publication of a derivative work is to be deemed a publication of the original work from which it is derived. The principle which the proviso is intended to express is that where, in the case of an artistic work, the original is in three dimensions, a derivative work in the flat shall not be deemed to be a publication of the original. It is, perhaps, a little unfortunate that this modification has been introduced into the definition agreed upon at Berlin. Where a derivative work such as a photograph or engraving of a painting or work of sculpture is published, there is in either case a publication of the greater part, but not of the whole of the artistic elements which go to make up the original work. There is a residuum of the artistic elements which is left unpublished, but that residuum may be just as important in the case of a photograph of a picture as in the case of a photograph of a work of sculpture. It is therefore extremely arbitrary and artificial to provide that the publication of a photograph of a picture shall be deemed to be a publication of the picture, but that the publication of a photograph of a work of sculpture shall not be deemed to be a