Page:The copyright act, 1911, annotated.djvu/61

 Rights. 49

special period prescribed is fifty years from first publica- § 3.

tioii or performance in public, and tben it is provided ■

that the 23i'oviso to sect. 3 "shall . . . apply as if the author had died at the date of such publication or per- formance." Posthumous works, therefore, may be repro- duced on the royalty basis after the expiration of twenty ■ five 3'ears (or in the case- of a work in which copyright subsists at the passing of the Act, thirty years j from first publication or performance.

The application of the proviso to the works of joint Applicatiou authors is not quite so clear. In the case of such works, ^orkso^f°omt special provision as to the duration of copyright is made authors, under sect. 16. The duration of copyright is fifty years from the death of the author who dies first, but if the author who dies last survives that period, then for his life. There is no express reference in the section to the proviso in sect. 3, but it is provided that "references in this Act to the period after the expiration of any speci- fied number of years from the death of the author shall be construed as references to the period after the expira- tion of the like number of years from the death of the autho]- who dies first, or after the death of the author who dies last, whichever period may be the shorter." It seems most probable that these words were inserted so as to bring the works of joint authors under the proviso in sect. 3, as well as under the proviso in sect. 5, which makes the last twenty-five years of the copyright unassignable by the author during his lifetime. Unfortunately, the pro- viso in sect. 3 is not expressly applied to the case of the works of joint authors, and upon a strict construction of the Act, it does not apply. It is submitted, however, that the strict construction ought to yield to the obvious in- tention of the draftsman, and to the consideration that it is of the utmost importance that the proviso in sect. 3 should fit in with the proviso in sect. 5. It is essential to the whole scheme of these two provisoes that, when the interest during any period is unassignable by the author, there should be a right during the same period to repro- duce upon a roj^alty agreement. If this were not so, it would be a source of serious inconvenience to publishers, since they would not be able to continue the publication of a work without making a fresh contract with the author's representatives. As it is clear that the proviso in sect. 5 does apply to works of joint authors, the Courts

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