Page:The copyright act, 1911, annotated.djvu/60

 48

��CoPYKiGHT Act, 1911.

��§3.

author a

higher

royalty.

��Where after expiration of original term publisher may continue to reproduce under sect. 24.

��No corre- sponding right in relation to performing rights.

��Application of proviso to posthumous works.

��to jDay the author a stipulated roj'alty, say 20 per cent., during the full term of the copyright. Before the old term of copyright has expired, the work may have come under the operation of this proviso. Other publishers will then have the right to reproduce upon pa^'ment of a royalty of 10 per cent. Must the original publisher con- tinue to pay 20 per cent, under his contract until the expiration of the old term of copyright? It is submitted that he is not bound to do so, but may pay 10 per cent. only under the proviso. The meaning of the contract is that he shall pay 20 per cent, so long as he has the copy- right in the sense in which it was then understood, that is to say, the sole and exclusive right of multiplying copies. There is no agreement to pay a 20 per cent, royalty after such sole and exclusive righ't has determined, and the right to reproduce lias fallen in to the public domain. It seems fairly clear that the original publisher must then be entitled to claim the right along with the rest of the public to reproduce upon payment of the 10 per cent, royalty.

After the expiration of the old term of copyright, the extended period of copyright belongs to the author's re- presentatives, but the original publisher may continue to reproduce the work under the provisions of sect. 24. If, however, the work has also fallen under the operation of the proviso to sect. 3, it is submitted that he can re- produce upon payment of a 10 per cent, royalty under that proviso, and is not bound to submit the amount of royalty to arbitration under sect. 24 (1) (a) (ii).

It will be observed that the proviso does not contain any provision for the public performance of works, or for the production of works which have been publicly performed but not published. In respect of these, the absolute monopoly is maintained for the full period of life and fifty years.

Primarily, this j)roviso does not apply to those cases where the duration of the copyright is expressly defined in other parts of the Act, that is to say (1) works of joint authors ; (2) posthumous works ; (3) photographs ; (4) records, perforated rolls, &c. The proviso qualifies the period of life and fifty years prescribed in this section, but does not purport to qualify any special periods pre- scribed in other sections. In the case of posthumous works, however, which are dealt with in sect. 17, the

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