Chapter XVI: Section III: Author's Nationality

It must still be considered doubtful whether or not the author of a book must be a British subject, or at least resident within the British dominions at the time of publication. This point is the subject of a considerable body of case law under the statute of Anne; but there has been no definite and authoritative decision under the statute of Victoria. The question was first seriously argued in the case of _D'Almaine_ v. _Boosey_,[197] when it was decided in the Court of Exchequer that the work of a foreigner would be entitled to protection if first published in England by an English assignee. The next case was _Bentley_ v. _Foster_,[198] before Shadwell, V. C., who decided that the foreigner himself could acquire a copyright by first publication in this country. After that there is a series of confused and conflicting cases,[199] terminating with the decision of _Jefferys_ v. _Boosey_[200] in the House of Lords. The plaintiff in that case was the English assignee of the unpublished work of a non-resident foreigner. The first publication was in England. The judges were consulted, and of these six were in favour of the plaintiff's right and four against it. The House of Lords, however, were unanimous against the plaintiff's right. They decided that the work of a non-resident foreigner could not acquire copyright in this country.

Lord Cranworth, L. C., said:

"The statute (8 Anne) must be construed as referring to British
authors only. _Primâ facie_ the legislature of this country must
be taken to make laws for its own subjects exclusively, and
where, as in the statute now under consideration, an exclusive
privilege is given to a particular class at the expense of
the rest of her Majesty's subjects, the object of giving that
privilege must be taken to have been a national object and the
privileged class to be confined to a portion of that community
for the general advantage of which the enactment is made. When I
say that the legislature must _primâ facie_ be taken to legislate
only for its own subjects, I must be taken to include under the
word 'subjects' all persons who are within the Queen's dominions,
and who thus owe to her a temporary allegiance. I do not doubt
but that a foreigner resident here, and composing and publishing
a book here, is an author within the meaning of the statute: he
is within its words and spirit. I go further: I think that if a
foreigner having composed but not having published a work abroad
were to come to this country, and the week or day after his
arrival were to print and publish it here, he would be within the
protection of the statute."

_Jefferys_ v. _Boosey_[201] then definitely decided that under the statute of Anne a foreigner, unless at the time of publication he was resident within the jurisdiction of the crown, could not be an author within the meaning of the Act, and therefore neither he nor his assigns before or after publication could acquire copyright. It would seem to follow that the construction of 5 & 6 Vict. c. 45 would lead to a similar decision. This, however, has been doubted in the House of Lords in the case of _Routledge_ v. _Low_.[202] The actual decision in that case went no further than holding that a foreign author who was resident for a few days in Canada expressly for the purpose of acquiring copyright while her book was published in London was an author within the Act, a proposition which had not been disputed in _Jefferys_ v. _Boosey_.[203] Their Lordships, however, discussed the wider issue whether even temporary residence was necessary. Lord Cairns, L. C., and Lord Westbury were of opinion that it was not. Lord Cairns, after pointing out that _Jefferys_ v. _Boosey_[204] was a decision under the Act of Anne, said:

"It was impossible not to see that the _ratio decidendi_ in
that case proceeded mainly, if not exclusively, on the wording
of the preamble of the statute of Anne, and on a consideration
of the general character and scope of the legislation of Great
Britain at that period. The present statute had repealed that Act,
and professed to aim at affording greater encouragement to the
production of literary works of lasting benefit to the world. And
accepting this decision of the House as to the construction of the
statute of Anne, it is, I think, impossible not to see that the
present statute would be incompatible with a policy so narrow as
that expressed in the statute of Anne."[205]

Lords Cranworth and Chelmsford agreed that temporary residence within the dominions was sufficient to give a foreigner the right to acquire copyright as a British author, and therefore concurred in the judgment of the House. They, however, differed strongly from the view that a non-resident foreigner could be an author within the Act. Lord Cranworth said:

"I have no hesitation in concurring with my noble and learned
friend in thinking that the decree below was right. I find it
difficult to concur with him in the opinion that the present
statute extends its protection to all foreigners wherever they
may be resident without saying that the case of _Jefferys_ v.
_Boosey_[206] is not good law--a conclusion at which I should
be very unwilling to come as to any case decided in this House,
more especially as to one so elaborately considered as that of
_Jefferys_ v. _Boosey_.[207] That case, as my noble friend has
pointed out, was decided not on the construction of the Act of 5
& 6 Vict. c. 45, but on the statute of Queen Anne; but I own I
do not as at present advised see any difference between the two
statutes so far as relates to the subject of the residence of
foreign authors."

_Routledge_ v. _Low_[208] is followed as to its actual decision in _Low_ v. _Ward_;[209] but as to the rights of a non-resident foreign author the law remains, as left by _Routledge_ v. _Low_,[210] truly in a most unsatisfactory state. It is difficult to escape from the conclusion, however willingly one would, that there is really no distinction between the application of the statute of Anne and that of Victoria, and that, therefore, a case arising on this point under the Act of Victoria is governed by _Jefferys_ v. _Boosey_,[211] a decision which, if erroneous, was not so for want of deliberate research and consideration. The general opinion, however, seems to be that Lords Cairns and Westbury were right and Lords Cranworth and Chelmsford wrong. This view is adopted by Stephen, J., in his digest.[212] Mr. Scrutton is of the same opinion, and cites the Naturalisation Act and the proviso that copyright is personal property.[213] Mr. Chamier does the same.[214] It is respectfully submitted that the provisions of the Naturalisation Act and the indisputable fact that a foreigner wherever resident can acquire a British copyright are entirely beside the mark, and do not in the least help one to decide whether the legislature is to be presumed to have applied the Act of 5 & 6 Vict. to the works of foreign authors. The decision that the work of a non-resident foreign author will not be protected is in no way contrary to the provision of the Naturalisation Act that an alien friend may acquire and hold personal property in the same way in all respects as a British subject. The logical conclusion from that provision is that an alien friend as well as a British subject may acquire British copyright wherever it exists; but it does not necessarily follow that British copyright exists in the work of a foreign author, and that either an alien friend or a British subject can acquire it. After the passing of the Chace Act (1891) in the United States, the law officers of the Crown in England were consulted by the American law officers, and they advised that an American author could acquire copyright in his work by simultaneous publication in this country and America, even although he was not at any time resident within the British dominions. Consequently on that advice the President of the United States proclaimed Great Britain as one of the countries which gave by their law reciprocal rights to American authors; and English authors are thereby entitled to acquire copyright in the United States. It would certainly be most unsatisfactory if the law of England were now to be declared contrary to the advice then given by our law officers, but it cannot be said that this should influence our Courts if their decision on the point was called for.