Chapter XXXIV: Section IV: What Dramatic Works Are Protected: Duration of Protection

It has been suggested by some writers that there is no statutory protection of performing rights until first representation in public.[696] It has also been suggested that the duration of performing right is in every case for the period laid down by 5 & 6 Vict. c. 45, _i. e._ forty-two years from first performance or the author's life plus seven years. It is difficult to concur in these views, which seem to imply that 5 & 6 Vict. has taken away from the dramatic author certain rights given to him by 3 & 4 Will. IV. c. 15.

The law appears to stand thus. Before the statute of 3 and 4 Will. IV. c. 15 there was no statutory performing right. Whether there was a common law performing right _quære_.[697] By the Act of 3 & 4 Will. IV. c. 15 the author of a dramatic piece not printed and published in book form is given a perpetual performing right. This presumably dates from the composition of the dramatic piece. If the dramatic piece is printed and published as a book, the protection is then limited to twenty-eight years from publication or for the life of the author, whichever be the longer period. In neither case is the performing right dependent for its existence on public performance.[698] Then comes the Act of 5 & 6 Vict. c. 45, which enacts in section 20--

"that the provisions of the said Act of His late Majesty (3
& 4 Will. IV. c. 15) and of this Act shall apply to musical
compositions, and that the sole liberty of representing or
performing or causing or permitting to be represented or performed
any dramatic piece or musical composition shall endure and be the
property of the author thereof and his assigns for the term in
this Act provided for the duration of copyright in books; and the
provisions hereinbefore enacted in respect of the property of such
copyright and of registering the same shall apply to the liberty
of representing or performing any dramatic piece or musical
composition as if the same were herein expressly re-enacted
and applied thereto save and except that the first public
representation or performance of any dramatic piece or musical
composition shall be deemed equivalent in the construction of this
Act to the first publication of any book."

As regards dramatic pieces which have been publicly performed it is clear that the Act of Victoria gives them protection from that date for forty-two years, or for the life of the author and seven years.[699] But does 5 & 6 Vict. c. 45 take away the protection given by 3 & 4 Will. IV. c. 15 to such dramatic pieces as do not come within the provisions of the later statute, _i. e._ unperformed dramatic pieces? It is submitted that it does not, and this appears to be the view of Hawkins, J., in _Reichardt_ v. _Sapte_,[700] the only decision on the point. In that case A wrote a dramatic piece, B subsequently wrote one very similar: B's drama was first performed, and a few days afterwards A's drama was performed. In an action by B against A for infringement of performing right, Hawkins, J., held that A had acquired his performing right under 3 & 4 Will. IV. when he wrote his drama. He says:

"In none of the enactments in 5 & 6 Vict. c. 45 will be
found anything which prejudicially affects the right of sole
representation conferred by the statute of 3 & 4 Will IV. c. 15.
The first production of a dramatic piece mentioned in section 20
of the statute of Victoria confers no priority upon the first
producer, nor does it confer a title to the sole liberty of
representation. That is conferred by the statute 3 & 4 Will. IV.
c. 15 upon the author or his assignee: it[701] only fixes the
first production as the point from which (if entitled to it)
the endurance of the sole liberty of representation is to be
calculated."

What Hawkins, J., decided was that there is a vested statutory interest in a dramatic piece immediately it is composed, and although it is not quite clear from his judgment, it seems necessarily to follow that the whole rights and remedies given by 3 & 4 Will. IV. c. 15 still attach immediately on composition, and that there is nothing in 5 & 6 Vict. to divest the author of that right. When a dramatic work is performed, no doubt the protection to performing right is restricted as well as extended to the period given by 5 & 6 Vict. c. 45, _i. e._ forty-two years from the date of first performance, or life and seven years: but as regards unperformed works, it is submitted that the performing right is given by 3 & 4 Will. IV. c. 15 on composition, and is perpetual if the work be not printed and published as a book within the British dominions, or if it be printed and published as a book, then for forty-two years from the date of publication as a book, or for the author's life and seven years.

Extremely difficult questions may arise as regards performing rights when a dramatic or musical work has been published as a book or publicly performed outside the British dominions before the first publication or the first public performance within the British dominions.