Chapter LIV: Section 3: of the International Copyright Act, 1844, applies to foreign

works, _inter alia_, the provisions 5 & 6 Vict., sections 15 and 17, which prohibit the importation of any copies printed outside the British dominions. Section 10 was held not to curtail the general application in section 3 of the provisions of the Copyright Act, 1842, to foreign books.

As to certain foreign works which are dealt with below, there is express provision in the International legislation which results in giving such foreign works a narrower right or shorter term than they would have if first published in this country. Where there is no express limitation, the above general rules apply. The law of both the country of origin and of the United Kingdom must be examined, and the right given will be limited according to the law which affords least protection. Where, however, according to this rule there is a right, the Courts here will give the same remedies as they would extend to the author of a work first published in the United Kingdom. Thus in _Baschet_ v. _London Illustrated Standard_,[1088] Kekewich, J., refused to consider whether a French Court would or would not award penalties for infringement.

_Works published before December 6, 1887_, are protected, except in so far as such protection may prejudice rights or interests arising from or in connection with works lawfully produced before, and subsisting and valuable at, that date.[1089]

This limitation is introduced by the retrospective section of the Act of 1886, which enacts that--

"Where any person has before the date of the publication of an
Order in Council lawfully produced any work in the United Kingdom,
nothing in this section shall diminish or prejudice any rights or
interests arising from, or in connection with, such production
which are subsisting and valuable at the said date."

The following are some of the classes of literary or artistic works which were not protected before 1886 but to which the retrospective section and its saving clause applies:

i. Works not registered in this country under the International
Copyright Act, 1844, section 6.[1090]
ii. Works which had not acquired the translating right
under the International Copyright Act, 1852, sections 2, 4, 8.
iii. Dramatic works, as to the liberty to make fair imitations
or adaptations to the English stage under the
International Copyright Act, 1852, section 6.

"Lawfully Produced" means that the work has been produced without contravening any right existing at the date of its production.[1091]

"Rights" and "Interests" are to be distinguished, the latter word bearing a wider interpretation than the former. Right does not mean the right to reproduce in common with all mankind, but right in the strict legal sense of the term under the English Copyright Acts, _i. e._ an exclusive right of property.

When any capital has been embarked in the production of a work, and the publisher depends on the sale of copies in stock or on the proceeds of a future edition to recoup himself for his outlay, there is clearly an interest although there may be no right. Where a bandmaster had purchased a copy of a French musical composition and instructed his band to perform it, he was held to have such an interest as would entitle him to continue performing it after the French composer had acquired protection under the Act of 1886.[1092] Even where no capital has been embarked, if the publisher has a special interest as distinct from the rest of the public in the reproduction of the work, he has an interest within the meaning of the section.[1093] Thus where a firm had adopted a German picture as a trade mark for their candles, they were held to have such an interest in the reproduction as would constitute a good defence to an action for infringement of copyright acquired under the retrospective operation of the Act of 1886.[1094] It has been suggested that not only the interests of the lawful producer will be safeguarded, but also interests arising in a third person from or in connection with such production, and this seems to be sound.[1095]

_Translating Right_ expires if not exercised within ten years.

The exclusive right of translation is expressly given to the foreign author by the Act of 1886 and the Additional Act of Paris for the full term of his copyright in the original work, but if an authorised translation in the English language is not published after the expiration of ten years next after the end of the year in which the work was first produced the translating right of the author shall cease.[1096] If a book is published in numbers, the ten years run from the date of publication of the last part.[1097] When a book is composed of a number of volumes, each volume is considered as a separate work.[1098] A translation in order to preserve the translating right must be full and substantial.[1099] A translation might be such as, if made without the consent of the author, would constitute a piracy, and yet not be such a translation as is required by the Act--

"What is required is that the English people should have the
opportunity of knowing the foreign work as accurately as it is
possible to know a foreign work by the medium of a version in
English."[1100]

_Articles in Newspapers and Periodicals._[1101]--Articles, not being serial stories or tales, appearing in a newspaper or periodical in a foreign country, may be republished or translated in a newspaper or periodical in this country without the consent of the owner of the copyright, provided--

(_a_) In the case of articles of political discussion, the news
of the day, or miscellaneous information, the source
from which the same is taken be acknowledged.
(_b_) In the case of articles relating to any other subject,
the source from which the same is taken be acknowledged,
and the author has not signified his intention
in a conspicuous part of the newspaper or periodical
of preserving the copyright and right of translation.

_Photographic Works._--The Additional Act of Paris runs as follows: "It is understood that an authorised photograph of a work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the Berne Convention, and by the present Additional Act, for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights."[1102]

It would seem, therefore, that photographs of protected works of art are not protected as original works, and that, whenever produced, their protection stands and falls with the right in the original work. Other photographs, including photographs of unprotected works of art, are protected as original works.

_Performing Right in Dramatic or Dramatic Musical Works._--Exclusive performing right in dramatic or dramatico-musical works subsists during the existence of the exclusive right of translation. If the translating right is allowed to fall into the public domain by non-exercise within ten years, the performing right falls with it.[1103]

There is not now as formerly any right in the public to make fair imitations or adaptations to the English stage.[1104]

_Express Provision as to Particular Kinds of Infringement._--The Berne Convention, article 8, provides that the question of the right of extract is to be decided by the legislation of the different countries of the Union, or by special arrangement between them. There is no special arrangement as to this with the United Kingdom, therefore the law as to extract and quotation applicable to works produced in this country applies.

Article 10 of the Berne Convention enacts that indirect appropriations such as adaptations and arrangements are included among illicit reproductions when they do not bear the character of original work. Here also, therefore, the law is similar to that applicable to works produced in this country.