Chapter XXXV: Section 19: of 7 & 8 Vict. c. 12, provides

"That neither the author of any book, nor the author or
composer of any Dramatic Piece or Musical Composition ... which
shall, after the passing of this Act, be first published out
of Her Majesty's Dominions, shall have any copyright therein
respectively, or any exclusive right to the public representation
or performance thereof, otherwise than such, if any, as he may
become entitled to under this Act."[702]

The whole difficulty lies in the meaning of the words "first published" as applied to the performing right. In _Boucicault_ v. _Delafield_,[703] and _Boucicault_ v. _Chatterton_,[704] it was held that when an unpublished play was first performed outside the British dominions the performing right in this country was extinguished. "First published" was held to include the "first performance" of a drama. This, however, only provides for one possible contingency. As the literary exchange with America, with which we have no international convention, is becoming larger every year, it may be useful to consider some of the other contingencies which may arise, and the difficulties of which are not yet judicially solved. The cases suggested are in connexion with the United States, but apply equally to any foreign country, except in so far as rights may be acquired under International Convention.

_Dramatic or Musical Work unpublished, first performed in America._--This has been decided as above. The performing right in this country is lost.

_Dramatic or Musical Work first published in America, subsequently first performed within the British Dominions._--This problem is not solved by the above cases. The alternative views are that "publication" in the section means: (i) a putting before the public in any form, whether by representation or in print, or (ii) as regards copyright, a publication in print, as regards performing right, a publication by representation. I am inclined to think that the second alternative is the correct one, and that the performing right in this country is not lost. The contrary, however, seems to have been assumed in _Boucicault_ v. _Chatterton_,[705] both by the bench and bar.

_Dramatic or Musical Work first published in the British Dominions, subsequently first performed in America._--This problem depends on the same two alternatives as the last. I therefore think that the performing right here would be lost, even although there was first publication as a book within the British dominions.

_Dramatic or Musical Work first performed in America, subsequently first published in the British Dominions._--The performing right in this country would be lost, but probably not the copyright.

_Dramatic or Musical Work first performed in the British Dominions, subsequently first published in America._--The performing right in this country would be secured, but the copyright lost.

SECTION V.--WHAT IS A MUSICAL COMPOSITION.

The necessary originality in a musical composition consists either in a new air or melody, or in the new arrangement and adaptation of an old air. Thus an arrangement of an opera for the pianoforte is an original work separate and distinct from the opera itself.[706] So the adaptation of new words and accompaniment to an old air is a musical composition entitled to protection.[707] It must always be remembered, however, that a new arrangement or adaptation will only be protected _quoad_ its novelty. In so far as the new work is taken from a non-copyright work, an unauthorised taking of that part is not an infringement of the new work.