Chapter XXI: Part I: , Group 2, issued monthly with more condensed entries,--containing (3)

President Harrison, in his first annual message, December 3, 1889, to the Fifty-first Congress, said, "The subject of an international copyright has been frequently commended to the attention of Congress by my predecessors. The enactment of such a law would be eminently wise and just." Senator Chace having resigned his seat, Senator O. H. Platt became chairman of the Committee on Patents and the chief advocate of the Chace bill, which he reintroduced December 4, 1889. In the House it was again introduced by Mr. Breckinridge on January 6, 1890, and referred to the Judiciary Committee, which made a favorable report, prepared by G. E. Adams of Illinois February 15, 1890. It was also introduced on the same day by Benjamin Butterworth of Ohio, as a Republican, and referred to the Committee on Patents, of which he was chairman. A third bill was also introduced on January 6, by W. E. Simonds of Connecticut, amending the patent and trade-mark acts with an incidental reference to copyright. Mr. Simonds presented a favorable report from the Committee on Patents February 18, but no action was taken on this report. The main bill was, however, reported from the Judiciary Committee by Mr. Adams, and on motion of William McKinley of Ohio, was made the special order for May 2, when it was debated, with amendments introduced by Mr. Adams and defeated on the third reading by a vote of 99 to 125. The bill was reintroduced, however, by Mr. Simonds with the inclusion of a reciprocity clause, May 16, 1890, and on June 10 the Committee on Patents through Mr. Simonds presented a strong report with a substitute bill, essentially the same. The Simonds report set forth that aside from "practical reasons" for the bill, "it is a sufficient reason that an author has a natural exclusive right to the thing having a value in exchange which he produced by the labor of his brain and hand. No one denies and everyone admits that all men have certain natural rights which exist independently of all written statutes." And in respect to international protection, the report said "the United States of America must give in its adhesion to international copyright or stand as the literary Ishmael of the civilized world." The report is printed in full and a detailed account of the campaign for this bill is given in G. H. Putnam's "The question of copyright." On December 3, 1890, the bill was again voted upon by the House and received a vote of 139 to 95 on its final passage.

{Sidenote: Senate debate, 1891}

In the Senate there was a notable debate lasting six days, February 9, 12-14, 17-18, 1891, in which Senators Sherman and Carlisle championed an amendment permitting the importation of authorized foreign editions which was opposed by the Typographical Unions as violating the manufacturing clause, and by authors and publishers as a restriction on authors' rights of control. Senator Frye on February 9, 1891, advocated an amendment extending the manufacturing clause beyond books to include maps, charts, dramatic or musical compositions, engravings, cuts, prints, photographs, chromos and lithographs. With these and other amendments, the bill passed the Senate 36 to 14, February 18, 1891. On February 28, 1891, the House voted 128 to 64 non-concurrence in the Senate amendments, and a Conference Committee was appointed.

{Sidenote: Passage of act of March 4, 1891}

This first Conference Committee, reporting on March 2, 1891, disagreed on the Sherman amendment, and accepted the other Senate amendments; the report was accepted by the House, 139 to 90, on March 2, 1891. The Senate, on March 3, refused by a vote of 33 to 28 to recede from the Sherman amendment, and a second Conference Committee was appointed. This second Conference Committee modified the Sherman amendment, and after an all-night session the copyright bill was passed, 127 to 77, by the House, March 3, and was also passed, 27 to 18, by the Senate at half past two in the morning, March 4, 1891.

The bill as passed was in the form of amendments to the Revised Statutes, omitting the limitation to citizens or residents of the United States, confining copyright, in the case of a book, photograph, chromo or lithograph, to works of which the deposit copies should be "printed from type set within the limits of the United States, or from plates made therefrom, or from negatives or drawings on stone, made within the limits of the United States or from transfers made therefrom," and extending copyright to citizens of a foreign country only when such country protects American citizens "on substantially the same basis as its own citizens," or is a party to international arrangements, as determined by proclamation of the President.

{Sidenote: Approval by President Harrison}

The signature of President Harrison was promptly affixed before the close of the legislative day, and the United States at last, though in a restricted form, accepted international copyright after an exciting and dramatic contest, which began more than half a century before. The bill became effective July 1, 1891.

{Sidenote: Review of the publishing situation}

There had been a continuous growth in the United States, though displayed somewhat intermittently, of an active sentiment in favor of international copyright. For some years the question was less insistent, from the practical point of view, because of what was called "the courtesy of the trade," by which a publisher who was the first to reprint an English work was not disturbed by rival editions of that and of succeeding works by the same author. Under this custom, the leading American publishers voluntarily made payments to foreign authors, in many cases the same ten per cent paid to American authors, and reaching in one case of "outright" purchase of "advance sheets" $5000, though there was no protection of law for the purchase. American and English works then competed on much the same terms. In 1876 the cheap "quarto libraries" were started, reprinting an entire English novel, though on poor paper and often in dangerously poor type, for 10, 15, or 20 cents. They presently obtained the advantage, by regular issue (one "library" at one time issuing a book daily, others weekly), of the low postal rates for periodicals, of two cents a pound, and thus obtained a further advantage over books by American authors. These quartos gradually gave way to the "pocket edition," in more convenient shape, but not always in better print, at 20 or 25 cents. The sales of corresponding American books had meanwhile definitely fallen.

{Sidenote: Lack of unified policy}

{Sidenote: Compromise of 1891}

The history of the movements for international copyright in America shows that there had been no continuous and well-defined policy on the part of the government authorities, or of publishers, or of authors. While authors almost unanimously, and publishers generally, favored international copyright, the division lines as to method were not between authors and publishers, but between some authors and other authors, and between some publishers and other publishers. There were those, in both classes, who objected to any bill which did not acknowledge to the full the inherent rights of authors, by extending the provisions of domestic copyright to any author of any country, without regard to other circumstances. There were others, at the other extreme, who opposed international copyright unless it was restricted to books manufactured in this country, issued simultaneously with their publication abroad, and of which the importation of other than the American copies was absolutely prohibited. The act of 1891 was finally passed with the assent of the advocates of authors' rights who were willing to waive the abstract principle in favor of any moderate measure which should be at least a first step of recognition, and which might justify by its results, even to the opponents of international copyright, further steps of future progress.

{Sidenote: Need of general revision}

While the act of 1891 was unsatisfactory to the friends of copyright, who desired rather that the United States might grant unrestricted international copyright and become a signatory power in the convention of Berne, it was thought fair and right not to attempt broader legislation for some years. Copyright legislation had become, however, confused and uncertain in the multiplicity of statutes, and the need of revision was emphasized in annual and special reports by Thorvald Solberg, an expert in copyright and skilled bibliographer, who had been appointed Register of Copyrights on the creation of that office in 1897 with the approval of the Librarian of Congress, Herbert Putnam, who had been appointed in 1899. In 1903 the Register of Copyrights presented a special report on copyright legislation which was made part of the report of the Librarian of Congress for 1903, and accompanied by a list of all copyright statutes by the original states and by the United States, the text of the revised statutes with notations of later provisions and a list of foreign copyright laws in force, which three documents were also published as separate pamphlets.

{Sidenote: Ad interim copyright act, 1905}

In 1905, March 3, an act was passed granting _ad interim_ protection for one year to works in a foreign language published in a foreign country, pending manufacture in America within one year of the original work or a translation thereof. This protection was conditioned on the deposit within thirty days from publication in a foreign country of a copy of the foreign edition bearing copyright notice and a reservation in the following form: "Published____, 19__. Privilege of copyright in the United States reserved under the Act approved March 3, 1905, by ____,"--which was also to be printed on all copies of the foreign work sold or distributed in the United States.

{Sidenote: Copyright conferences, 1905-06}

On January 27, 1905, Senator Kittredge announced (in Senate Report 3380) that the Committee on Patents purposed to "attempt a codification of the copyright laws at the next session of the Congress" and in a letter to the Librarian of Congress suggested that he call a conference of the several classes interested in such codification. Accordingly on April 10, the Librarian of Congress announced such a conference, of which sessions were held at the City Club in New York, May 31 to June 2, and November 1 to 4, 1905, and in the Library of Congress, Washington, March 13 to 16, 1906. At these conferences, organizations representing authors, dramatic and musical as well as literary, artists, publishers, printers, lithographers, librarians, the legal profession and the public, participated through delegates, and discussed first a basic memorandum presented by the American (Authors) Copyright League and thereafter successive drafts of a copyright measure prepared by the Register of Copyrights. As a result of these discussions, presided over by Librarian Putnam, the final draft was prepared under the immediate direction of the Librarian of Congress, which became the basis of the bill "to amend and consolidate the acts respecting copyright" introduced into the Senate by Senator Kittredge (Senate bill 6380) and into the House by Chairman Frank D. Currier (H. R. bill 19853), May 31, 1906.

{Sidenote: "Copyright in Congress, 1789-1904"}

In connection with these conferences, a number of valuable documents were prepared by Register Solberg and published through the Copyright Office, among them a chronological record of "Copyright in Congress, 1789-1904," with bibliography, summarizing all Congressional proceedings in relation to copyright through the second session of the Fifty-eighth Congress.

{Sidenote: President Roosevelt's message, 1905}

Meantime President Roosevelt, in his annual message of December 5, 1905, to the Fifty-ninth Congress, had made strong recommendations in favor of copyright reform: "Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the public; they are difficult for the courts to interpret and impossible for the Copyright Office to administer with satisfaction to the public. Attempts to improve them by amendment have been frequent, no less than twelve acts for the purpose having been passed since the Revised Statutes. To perfect them by further amendment seems impracticable. A complete revision of them is essential. Such a revision, to meet modern conditions, has been found necessary in Germany, Austria, Sweden and other foreign countries, and bills embodying it are pending in England and the Australian colonies. It has been urged here, and proposals for a commission to undertake it have, from time to time, been pressed upon the Congress. The inconveniences of the present conditions being so great, an attempt to frame appropriate legislation has been made by the Copyright Office, which has called conferences of the various interests especially and practically concerned with the operation of the copyright laws. It has secured from them suggestions as to the changes necessary; it has added from its own experience and investigations, and it has drafted a bill which embodies such of these changes and additions as, after full discussion and expert criticism, appeared to be sound and safe. In form this bill would replace the existing insufficient and inconsistent laws by one general copyright statute. It will be presented to the Congress at the coming session. It deserves prompt consideration."

{Sidenote: Congressional hearings, 1906-08}

It was arranged that the two Committees on Patents of the Senate and House should hold joint sessions for public hearings on the copyright bill, and these hearings were held in the Senate reading room in the Library of Congress, the first June 6 to 9, 1906, the second December 7 to 11, 1906, the third March 26 to 28, 1908, of each of which full stenographic reports were printed for the Committees. At the first hearing the discussions were largely on the general principles of copyright and their special application to the right of musical composers to control mechanical reproduction of their works. Amendments proposed at this hearing were printed by the Copyright Office in two parts, and a third or supplementary part gave the comment of the Bar Associations' Committees. Register Solberg also printed as preliminary to the second hearing the copyright bill compared with copyright statutes then in force, and earlier United States enactments.

{Sidenote: Kittredge-Currier reports, 1907}

In 1907, at the second session of the Fifty-ninth Congress, the copyright measure was introduced by Senator Kittredge January 29, 1907 (Senate bill 8190), accompanied later by the majority report, February 5, 1907 (Senate report 6187), and a minority report, February 7, 1907 (Senate report 6187; part 2); and by Chairman Currier January 29, 1907 (H. R. bill 25133), accompanied later by the majority report, January 30, 1907 (H. R. report 7083), and by a minority report, March 2, 1907 (H. R. report 7083, part 2). No action was taken at this session.

{Sidenote: Smoot-Currier, Kittredge-Barchfeld bills, 1907-08}

At the first session of the Sixtieth Congress, Senator Smoot, who had become Chairman of the Patents Committee on the retirement from it of Senator Kittredge, introduced a majority bill December 16, 1907 (Senate bill 2499), and Senator Kittredge a minority bill December 18, 1907 (Senate bill 2900); and in the House, Chairman Currier introduced the majority bill December 2, 1907 (H. R. bill 243), and A. J. Barchfeld the minority bill January 6, 1908 (H. R. bill 11794). The Smoot-Currier bills, practically identical, were less favorable to authors, particularly in respect to mechanical reproductions of music, than the Kittredge-Barchfeld bills; and in a pamphlet "The copyright bills in comparison and compromise," prepared by R. R. Bowker in behalf of the American (Authors) Copyright League in March, 1908, the features of the several measures were compared and the views of the Copyright League set forth in a combined measure, with annotations. The "canned music" question, indeed, absorbed most of the time at the third hearing, in the stenographic report of which a combined index to the several hearings was printed.

{Sidenote: Washburn, Sulzer, McCall, Currier bills, 1908}

After the hearings, other bills were introduced into the first session of the Sixtieth Congress by C. G. Washburn May 4, 1908 (H. R. bill 21592), more fully representing authors' views; by Wm. Sulzer May 12, 1908 (H. R. bills 21984, 22071), embodying views of dramatic authors; by S. W. McCall May 12, 1908 (H. R. bill 22098), embodying an amendment to the manufacturing clause as phrased by the American (Authors) Copyright League, excepting from the manufacturing provision "the original text of a foreign work in a language other than English," and by Chairman Currier May 12, 1908 (H. R. bill 22183). But again no action was taken at this session.

{Sidenote: Fourth Congressional hearing, 1909}

At the short (second) session of the Sixtieth Congress the copyright bills were reintroduced in the House by Mr. Barchfeld December 19, 1908 (H. R. bill 24782), by Mr. Sulzer January 5, 1909 (H. R. bill 25162), by Mr. Washburn January 15, 1909 (H. R. bill 26282). On January 20, 1909, a fourth public hearing, specifically on "common law rights as applied to copyright," was given by the Copyright Subcommittee of the House Committee on Patents, to which had been referred the preparation of a final draft, which hearing was reported with the inclusion of a communication of Arthur Steuart, Esq., Chairman of the Copyright Committee of the American Bar Association, giving a careful analysis of the several common law rights possible as to copyright property. After this hearing there were further reintroductions of copyright bills by Mr. Washburn January 28, 1909 (H. R. bill 27310), by Chairman Currier February 15, 1909 (H. R. bill 28192), and in the Senate by Senator Smoot February 22, 1909 (Senate bill 9440).

{Sidenote: Passage of act of March 4, 1909}

The Currier bill was referred to the Committee of the Whole February 22, when a report (H. R. report 2222) was presented. On February 26, amendments were agreed to by the House Committee on Patents; on March 2 the bill had a further reading, and on March 3 was briefly discussed and passed by the House. Senator Smoot had reported to the Senate March 1, 1909, with a report from the Committee (Senate report 1108), and on March 3 the bill as passed by the House was brought before the Senate, briefly discussed, and passed. The exact votes were not recorded.

{Sidenote: Approval by President Roosevelt}

It had scarcely been hoped at the beginning of 1909 by the friends of copyright that the act could be passed during the short session, but the energy of Chairman Currier, complemented by Senator Smoot in the Senate, carried the bills through, and on March 4, the last day of the administration of President Roosevelt, himself an author of distinction and member of the Authors Club, he had the satisfaction of signing, as one of his last acts, a copyright bill completely codifying the law of copyright and greatly broadening international copyright. The copyright code, as in force July 1, 1909, is printed with an index and with the regulations adopted by the U. S. Supreme Court, as Copyright Office Bulletin 14.

{Sidenote: Code of 1909}

{Sidenote: Hopes of future progress}

The code of 1909 made the manufacturing clause more drastic, though freeing photographs from its provisions, by requiring in the case of books, periodicals, lithographs and photo-engravings that they should be completely manufactured within the United States, including printing and binding as well as type setting, with requirement of affidavit from printer or publisher in the case of books; but made on the other hand a further approach to complete international copyright in freeing from the manufacturing clause "the original text of a book of foreign origin in a language or languages other than English," thus relieving a difficult situation which threatened retaliation and the rupture of copyright relations by Germany and other countries, and in extending protection to mechanical music reproductions on a reciprocal basis. The hopes of the friends of copyright will not, however, be fully realized until the manufacturing clause, with the affidavit provision, is repealed, and the United States enabled by Congress to join the family of civilized nations as a signatory power in the Berlin convention.

XX

COPYRIGHT THROUGHOUT THE BRITISH EMPIRE

{Sidenote: English and American systems}

Copyright in America has been so much modeled on English statutes, decisions and precedents, that the previous chapters have covered most of the points of copyright law in the United Kingdom. There are two essential points of difference, however, between the English and American systems. British copyright has depended essentially upon first publication, not upon citizenship; and registration and deposit, which are here a _sine qua non_, have there been necessary only (except in the case of works of art) previous to, and as a basis for, an infringement suit.

{Sidenote: First publication and residence}

A book first published in the United Kingdom (England, Scotland, Wales, and Ireland) has been _ipso facto_ copyright, under the act of 1842, throughout British dominions; and this protection was definitely extended, by the act of 1886, to a work first published elsewhere in the British dominions. This held whether the author were a natural-born or naturalized British subject, wherever resident; or a person who was at the time of publication on British soil, colonies included, and so "temporarily a subject of the Crown--bound by, subject to, and entitled to the benefit of the laws," even if he made a journey for this express purpose; or, probably but not certainly, an alien friend not resident in the United Kingdom nor in a country with which there was copyright reciprocity. Under the statute of Anne, it was decided by the Law Lords, in the case of Jefferys _v._ Boosey (overruling Boosey _v._ Jefferys), that a person not a British subject or resident was not entitled to copyright because of first publication in England, but the statute of 1842 was construed to alter this. In the ruling case under the last-named statute, Routledge _v._ Low, in 1868, Lords Cairns and Westbury laid down explicitly that first publication was the single necessity, and that copyright was not strengthened by residence; though Lord Cranworth objected and Lord Chelmsford doubted whether this was good law. It was because of this doubt that American authors had been accustomed to make a day's stay in Montreal on the date of English publication of their books. This decision was accepted by the law officers of the Crown and became in 1891 the basis for the reciprocal relations proclaimed by the President of the United States.

{Sidenote: Variations in copyright terms}

The copyright term in Great Britain has differed for the several subjects of copyright, under the divers acts as stated in previous chapters, the general term being for life and seven years or for forty-two years, whichever the longer. Registration at Stationers' Hall has been requisite only (except in the case of works of art) as preliminary to suit, and infringement previous to registration was punishable. Deposit of one copy in the British Museum has been required within a stated time from publication, but only on penalty of fine and not forfeiture of copyright, and the four university libraries might demand copies. Under the international copyright acts, registration and deposit at Stationers' Hall for transmission to the British Museum was requisite for foreign works; but this was made unnecessary by the adhesion of Great Britain to the International Copyright Union.

{Sidenote: The new British code}

The Copyright Act, 1911, as amended by the Lords, which became law (1 & 2 Geo. v. c. 46) on Crown approval December 16, 1911, provides a codification for the British Empire as comprehensive as the American code. The act covers as Part I, Imperial copyright, Part II, International copyright, Part III, Supplemental provisions. The act extends throughout His Majesty's dominions, but is not to be in force in a self-governing dominion (Canada and Newfoundland, Australia and New Zealand, and South Africa) unless enacted by the legislature thereof, either in full or with modifications relating exclusively to procedure and remedies or necessary to adapt the act to the circumstances of the dominion, in case of which adoption the legislature may repeal the act or enact supplementary legislation with reference to works first published or whose authors are resident within the dominion. Thus the bill practically permits the self-governing colonies to legislate independently, each for itself within its domain. The act may also be extended by Orders in Council to English protectorates "and Cyprus." Its provisions are also made applicable (by Part II on international copyright) through Orders in Council to subjects or citizens of foreign countries, directly or through separate action by self-governing dominions, under conditions which practically cover countries within the International Copyright Union under the Berne-Berlin conventions, though these are not named in the act; and to countries having reciprocal relations,--with authority to the Crown to withdraw any benefits of the act from citizens of countries not giving reciprocal protection. This code is based largely upon previous British practice, though with considerable extension and improvement.

{Sidenote: Scope and extent}

Copyright under this code covers "every original literary, dramatic, musical, and artistic work," first published within the included parts of His Majesty's dominions, and in the case of an unpublished work, the author of which was "at the date of the making of the work" a British subject or a resident domiciled within such included parts [or under protection through the international copyright provisions].

{Sidenote: Publication}

"A work shall be deemed to be published simultaneously in two places if the time between the publication in one such place and the publication in the other place does not exceed fourteen days," or such longer period as may be fixed by Order in Council. Publication is expressly distinguished from performance, exhibition or delivery.

{Sidenote: Definition of copyright}

Copyright is defined to mean "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever" or any translation thereof, to publish, perform, or deliver the work in public, to dramatize or novelize it, to make any record, roll, film or other contrivance by which it may be mechanically performed or delivered or to authorize any such acts. Architectural works of art are included as to design but not process or method.

{Sidenote: Infringement and exceptions thereto}

Infringement is comprehensively and sweepingly defined to cover any copying or colorable imitation of any copyright work or the doing by an unauthorized person of "anything the sole right to do which is by this Act conferred on the owner of the copyright." The code specifically excepts from the provisions against infringement (1) any "fair dealing" for private study, research, review or newspaper summary; (2) the use by an artist who has sold his copyright in a work of moulds, sketches, etc., except to repeat or imitate the design of that work; (3) the making or publishing of paintings, drawings, engravings, or photographs of a work of sculpture or artistic craftsmanship, if permanently situate in a public place or building, or (if not in the nature of architectural drawings or plans) of an architectural work of art; (4) the use in collections described and advertised as for school use, of extracts from copyright works (not themselves published for the use of schools), not more than two from any one author, and not duplicated within five years by the same publisher; (5) the newspaper report of a public lecture, unless specifically prohibited by exhibited notice; and (6) the reading or recitation in public by one person of any reasonable extract.

{Sidenote: Term}

The copyright term is for the life of the author and fifty years after his death, with provision that after an author's death the Judicial Committee of the Privy Council may, on allegation of the withholding of the work, require grant of license to reproduce, publish or perform it. Posthumous works, works the property of the Crown, photographs and mechanical music reproductions, are protected for fifty years; but no specific term seems to be indicated for anonymous or pseudonymous works as such. Works of joint authorship are protected for fifty years after the death of the author who _first_ dies, or during the life of the author who dies last, whichever the longer period, and such works may be protected by action of any one of the authors. Twenty-five years, or for existing works thirty years after an author's death, any person may under specified conditions publish a copyright work on payment of ten per cent royalty--following an Italian precedent. Compulsory license is also provided for mechanical music reproductions, in case the author permits any such reproduction--following the American provision. University copyrights are continued in perpetuity only for existing copyrights.

{Sidenote: Ownership}

The author of a work is the first owner of the copyright, except in the case of a work done on order or in the course of contract employment. The owner of a copyright may by an assignment in writing assign his rights wholly or partially, and either generally or as limited to any part of His Majesty's dominions, or for the whole term of copyright or any part thereof, or license accordingly. But no assignment otherwise than by will shall be operative beyond twenty-five years from the death of the author, when the copyright reverts to his natural heirs, following Spanish precedent.

Registration provisions are altogether omitted from the new measure.

{Sidenote: Deposit copies}

Deposit is required at the British Museum within one month after publication, "of every book published in the United Kingdom" on penalty of fine not exceeding five pounds and the value of the book, and copies must also be supplied to the four university libraries, and for specific classes to the National Library of Wales, on demand--the "best" edition in the case of the British Museum, and that of which most copies are sold in the other cases.

{Sidenote: Importation}

Importation of "copies made out of the United Kingdom ... which if made within the United Kingdom would infringe copyright," is prohibited, on notification in writing to the Commissioners of Customs (the Isle of Man being specifically excepted from this provision), and similar prohibition is authorized as to British possessions. The use in the section on infringement of the phrase "imports for sale or hire," taken from the act of 1842, involves a possible limitation of this prohibition which is discussed in the chapter on importation.

{Sidenote: Remedies}

The usual civil remedies are provided, actions being limited within three years from the infringement. If the real name of an author, or in the absence of such, the name of a publisher, is indicated on a work, that is _prima facie_ evidence of copyright ownership in the prosecution of infringement. An infringer may be relieved from damages (but not from injunction) on proving innocence; architectural infringements may not be enjoined after commencement of the structure, but are punishable by damages. On summary conviction any person who knowingly for sale or hire or for trade makes, sells or lets, distributes, exhibits, or imports infringing copies, shall be liable to a fine not exceeding forty shillings for each copy or fifty pounds for the same transaction, or in the case of a second offense, to imprisonment not exceeding two months; and similar provision is made as to infringing performance. The summary remedies in the musical copyright acts of 1902 and 1906 remain unrepealed.

{Sidenote: General relations}

The provisions of the code are extended to cover existing copyrights. Common law rights are specifically abrogated by provision confining the protection of an unpublished as well as a published work to statutory provisions.

{Sidenote: Acts repealed}

The measure repeals all existing enactments except sections seven and eight (modified) of the fine arts copyright act, 1862 (25 & 26 Vict. c. 68), which deal with fraudulent signature or marketing of art works and concern fraud rather than copyright, and the musical copyright acts of 1902 and 1906, providing summary remedies for piracy of musical works; and the provisions regarding copyrights of the customs and revenue acts are continued with modifications conforming them to this act.

The act does not apply to designs capable of being registered under the patents and designs act, 1907. Schedules of existing and corresponding rights and of enactments repealed are appended to the bill. The act is effective July 1, 1912, unless earlier made effective by Order in Council.

{Sidenote: Changes from original bill}

It may be noted that the new British measure had been much modified,--especially in the Committee stage, where efforts to reconcile conflicting interests were chiefly effective,--since its introduction as a Government measure in 1910. In the earlier form it was provided that the contributor of an article or contribution, periodical articles included, might retain a specific copyright except as against the proprietor of a collective work, and that an article in a newspaper, not being a tale or serial story, might be reproduced in another newspaper in default of a notice expressly forbidding it, providing the source were duly acknowledged. University copyrights, new as well as old, it was then proposed should still be perpetual. Copyright, it was specifically provided, should not pass from an artist when he sells his original work except by agreement in writing, but subsequent transfers of the original work from an owner also of the copyright, should transfer the copyright--but this is probably taken as implied in the new law. Registration at Stationers' Hall was continued and made applicable to all classes of works, and though optional, it was practically necessitated by the ingenious provision that in the absence of such registration an infringer might plead ignorance and be freed from damages. The summary provisions of the musical copyright acts were extended to cover other works, and these acts it was therefore proposed to repeal. The compulsory license provision limiting musical copyright and certain provisions as to ownership and term were introduced in the Committee stage. The word "infringing" was substituted for "piratical" in Parliamentary debate to conciliate a supersensitive member. The compromises and modifications indicated brought the measure before Parliament as an "agreed upon" bill.

{Sidenote: Isle of Man}

{Sidenote: Channel Islands}

The Isle of Man applies the copyright law of the United Kingdom, and has a supplementary law of 1907, applying British legislation on engravings and prints, sculpture, paintings, etc., and musical compositions, quite up to date, embodying in the latter section the latest provisions as to summary proceedings in the protection of music--this being enacted by "the Deemsters and Keys in Tynwald assembled," as the tiny Manx parliament is quaintly called. The Channel Islands of Jersey and Guernsey also apply British copyright law by ordinances or local legislation in their respective domains.

{Sidenote: International relations}

Great Britain was one of the original parties to the Berne convention and accepted the additional act, but not the interpretative declaration of Paris, and the passage of the new measure will permit adhesion to the Berlin convention. She has a special treaty with Austria-Hungary (1893), sometimes cited as the treaty of Vienna of 1893, and has been in reciprocal relation with the United States as a "proclaimed" country since July 1, 1891.

{Sidenote: Colonial relations}

The British dominions outside of the United Kingdom and Ireland are, in general, under the like provisions of Imperial copyright law, including the law of 1842 and earlier unrepealed or subsequent acts, the colonial copyright act of 1847 and the international copyright act of 1886 being especially important. They are also generally included under British international relations embracing the Berne-Paris provisions of the International Copyright Union and the reciprocal relations with the United States, but with the exception that in the Austria-Hungary treaty, Canada, New South Wales and Tasmania (both now part of the Australian Commonwealth), and Cape Colony (now part of the Union of South Africa) are not parties, because these colonies did not exercise the right of ratification specifically reserved to individual colonies.

{Sidenote: Judicial confirmation}

The application of the Berne convention to the British possessions was upheld in an important Canadian decision, when in 1906 Justice Fortin, in Mary _v._ Hubert, in the Quebec Court of King's Bench, held that the British international copyright act in relation with the Berne convention protected a French work from Canadian reprint, though the author had not complied with specific Canadian requirements,--a most significant decision in defense of international copyright.

{Sidenote: Local legislation}

Under the colonial copyright act of 1847, which declared local legislation or decrees repugnant to the Imperial law to be null and void, local legislation consonant with Imperial acts was permitted, subject to approval by the Crown through Orders in Council, in which case prohibition of importation of foreign reprints might be suspended by Order in Council with regard to the particular colony. Under this act, local legislation with special provisions existed in British India and other colonies, as well as in the "self-governing dominions," which last now include Canada and Newfoundland, Australia and New Zealand, and South Africa, and which have somewhat greater powers of local legislation. Under these local provisions, the Imperial law still prevails, local legislation being concurrent but not necessarily co-terminous with it, as is particularly noticeable in Canada, where there has been more or less conflict between the Imperial and Dominion authorities. Local protection may thus be extended, for instance, to works not first published within the British possessions, or in a unionist country, but copyright cannot be denied to works thus first published; and the Crown disapproves or disallows laws or provisions construed by the Imperial authorities to be repugnant to Imperial law. More than a score of colonies have adopted local laws or ordinances, some of which have been disallowed by the Crown. The _status_ of copyright in the several colonies is thus indefinite and confusing, even to the best-informed English jurists, and can seldom be stated with certainty. Under the new British code, the "self-governing dominions" will have the right to accept the Imperial code, either completely or with adaptation to local judicial methods, or to legislate independently.

{Sidenote: Canadian copyright history}

In respect to the colonies now constituting the Dominion of Canada, before British copyright protection had been definitely extended to works first published outside the United Kingdom, Lower Canada in 1832, Canada (upper) in 1841 and Nova Scotia in 1847 had passed copyright statutes to protect authors of books first published in the respective provinces. On the passage of the Imperial act of 1847, authorizing the suspension of that portion of the act of 1842 which prohibited the importation of foreign reprints of British copyright works, as to any colony in which provision should be made by local legislation for protecting the rights of British authors, Orders in Council were passed for Nova Scotia and New Brunswick in 1848 and for Canada in 1850, suspending such prohibition, following satisfactory protection accorded by local acts in those years. These local acts provided for the collection of an impost on foreign reprints of works by British authors in favor of the author or copyright owner.

{Sidenote: Dominion of Canada: early acts}

In 1867 the British North America act (30 & 31 Victoria, c. 3) was passed, providing for the union of Canada and the other North American provinces (except Newfoundland) under the title of the Dominion of Canada, and section 91 of this act specified copyright among the subjects which were to be within the legislative authority of the Parliament of Canada. At the first session of the first Dominion Parliament in 1868, a general copyright act was accordingly passed, which was followed in the same year by an act continuing the customs duty of 12-1/2 per cent on foreign reprints of British copyright works, and an Imperial Order in Council was passed July 7, 1868, continuing Canada within the provisions of the foreign reprints act of 1847. The returns to British authors from this duty proved so small--only L1084 in ten years--that there was much dissatisfaction, and this impost was finally discontinued in 1895, whereupon the suspension under the Imperial act of 1847 of the prohibition of importation ceased to be in force in Canada and foreign reprints of British copyright works were again under the Imperial law prohibited.

{Sidenote: Acts of 1875}

In 1872 a new Canadian copyright act was passed, but it was disallowed by the Imperial authorities, whereupon, in 1875, the Parliament of Canada passed a new act, carefully drawn to avoid conflict with Imperial legislation. To remove any doubts as to its validity, the "Canada copyright act" of 1875 was passed by the British Parliament to authorize the royal assent. This Imperial act forbade the importation into the United Kingdom of colonial reprints, though authorized for the Canadian market by British authors (and therefore not piracies), of any work which might be copyrighted in Canada, and in which copyright subsisted in the United Kingdom. The Canadian act of 1875 then received the approval of the Crown, and as replaced and substantially re-enacted by the Revised Statutes of Canada, 1886 (c. 62),--which also included (as c. 37) the amendatory act of 1886, prohibiting the importation of "reprints of Canadian copyright works and reprints of British copyrighted works which have been also copyrighted in Canada,"--is still in force, being now Revised Statutes, 1906, c. 70, pt. I, as the fundamental Canadian copyright law, subject to amendments since passed and approved. The Imperial and Canadian laws of 1875, taken together, make it possible to issue in Canada cheaper reprints of British copyright works, by arrangement with the author or copyright owner, without interfering with the more costly English editions.

{Sidenote: License acts disallowed}

It should here be noted that the Canadian act of 1889, as amended by the Canadian act of 1895, constituting Part II of chapter 70 of the Revised Statutes, 1906, has never been approved and brought into force by proclamation of the Governor-General. The act of 1889, following the Imperial international copyright act of 1886, extended Canadian copyright on condition of registration with the Minister of Agriculture, and printing and publication or production in Canada within one month after publication or production elsewhere, and provided that the Minister of Agriculture might grant licenses, not exclusive, for the production of works not thus protected on an undertaking to pay to the author ten per cent royalty on the retail price, in which case importation of foreign-made (but not British) editions might be prohibited during the copyright period. The act of 1895 extended this license system to works which the copyright proprietor failed to keep in print in Canada, unless he should give satisfactory assurance of prompt reissue. These acts, as noted, never became effective.

{Sidenote: The Fisher act, 1900}

In 1900 an amendment to the copyright act was passed which is sometimes referred to as the Fisher act. It provides that if a book, as to which there is subsisting Canadian copyright under the copyright act, has first been published in any part of the British dominions other than Canada, and the owner of the copyright has granted a license to reproduce in Canada an edition of such book designed for sale in Canada only, the Minister of Agriculture may prohibit the importation into Canada, except with the written consent of the licensee, of any copies of such book printed elsewhere, excepting two copies each for the use of public or institution libraries. There is some question as to the compatibility of this act with Imperial law.

{Sidenote: Minor acts}

{Sidenote: Short form of notice}

An act of 1887 had authorized the transfer from the Minister of Agriculture to the Minister of Trade and Commerce of the registration of industrial designs and trade-marks, but this transfer has never taken place. The acts of 1890 and 1891 provided for copyright suits in the Exchequer Court of Canada in the name of the Attorney-General or at the suit of any person interested. The act of 1895 also contained a provision adding to the two deposit copies required for Canada a third for deposit in the British Museum. Finally an act of 1908 substituted the short form of copyright notice, "Copyright, Canada, 19__, by A. B." This completes the history of Canadian copyright legislation.

{Sidenote: Proposed Canadian copyright code, 1911}

The copyright legislation of Canada will presently be replaced by a comprehensive code, utilizing the permission granted by the new Imperial copyright measure to self-governing dominions. The new bill, of which the original text, as submitted to Parliament April 26, 1911, is given in full in the appendix, will establish relations between the Dominion of Canada and the Imperial authority closely similar to those established by the Australian act of 1905, between that Commonwealth and the home government. It pushes still further the precedent of "protection to home industries" followed by American copyright legislation since 1891, and is a far more drastic measure, evidently in retaliation against the United States and with preferential relations toward Great Britain in view. Americans can scarcely criticize, however, the logical application in Canada of legislation on this side of the border. Copyright is to "subsist in every original literary, dramatic, musical and artistic work the author of which was at the date of making the work a _bona fide_ resident in Canada," not first published outside Canada (simultaneous publication being defined as within fourteen days), conditioned on registry before publication, and the manufacture of every copy within Canada. One registration of a periodical is to protect all future issues. Copyright it is proposed to define broadly, as in the new English bill, including the right "if the work is unpublished, to publish the work," thus bringing unpublished works within the statute law and probably excepting them from common law protection; and protection against mechanical music reproduction is also to be included. The term is to be for the life of the author and fifty years thereafter, with the new British proviso as to works of joint authorship, that the term is to be for the life of the author who dies first and fifty years thereafter, or the life of the author who dies last, whichever period is the longer. Assignment of copyright must be in accordance with the acts, and be registered. Importation of copies made out of the British dominions is prohibited. In case of a license for a Canadian edition of a book, copies printed elsewhere may be prohibited importation, except two copies for library use. Copyright may also be extended to foreign citizens under arrangements made by the governor in Council. British subjects resident elsewhere than in Canada may be brought under the act by Order in Council.

{Sidenote: Imperial and Canadian copyright}

{Sidenote: Requisites for domestic copyright}

The Imperial and Canadian copyright laws, apparently a complexity of complexities, are construed with relation to each other and thus do not conflict. Each is good _pro tanto_. The Canadian copyright law permits any person domiciled in Canada or in any part of the British possessions, or any citizen of any country which has an international copyright treaty with the United Kingdom, who is the author of a literary, scientific or artistic work, to obtain copyright in Canada for twenty-eight years, with a right of renewal for fourteen years to the author, if living, or to his widow or children, if he is dead, conditioned on re-registration within one year _after_ the expiration of the original term, publication of a renewal notice in the Canadian Gazette and fulfillment of the obligations of original copyright. The requirements for obtaining domestic copyright in Canada are that the work shall be printed and published in Canada, shall be registered and three copies thereof deposited at the Department of Agriculture (Copyright Branch) before publication, and that each copy published shall bear the notice as cited above. In the case of paintings, drawings and sculpture, the original work may be protected by deposit of a written description instead of copies.

{Sidenote: Imperial and local protection}

Under the Imperial copyright act of 1886, providing that a book first published in any part of the British dominions shall have copyright throughout those dominions, works are protected in Canada under that act. Subjects or citizens of a country which has no international copyright relations with the United Kingdom may obtain copyright in Canada under the Canadian law by showing that they have British copyright in the work and complying with the other Canadian requirements. Copyright obtained under the Canadian copyright law, so far as it relates to books first published in the British dominions, is in addition to and concurrent though not co-terminous with Imperial copyright. The Copyright Branch in the Department of Agriculture is in charge of the Registrar of Copyrights, Trade Marks and Designs, a post filled since 1906 by P. E. Ritchie, Esq. Canadian copyright may be obtained in a work although the Imperial copyright may have been lost by reason of first publication having been made outside of the British dominions or treaty relationship, the Canadian law providing that literary works may be protected when printed and published in Canada, whether they are so published for the first time or contemporaneously with or subsequently to publication elsewhere.

{Sidenote: Additional local protection}

Canadian copyright also affords additional protection and relief not granted by Imperial copyright, by provisions (1) that the importation into Canada of foreign reprints of Canadian copyright works is prohibited, and (2) that every person who knowingly prints, publishes, sells, or exposes for sale any piratical copy of a copyright work shall forfeit every such copy to the copyright owner and shall pay for every such copy found in his possession, printed, published or exposed for sale by him not more than one dollar and not less than ten cents, one half of which shall belong to the copyright owner.

{Sidenote: Application for copyright}

An applicant for Canadian copyright, either the proprietor or his authorized agent, whether domiciled in Canada or other British possessions or a citizen of a country having an international copyright treaty with Great Britain, should make application to the Minister of Agriculture (Copyright Branch), Ottawa, Canada, for which statutory forms are provided from that office, attested by two witnesses and accompanied by a fee of one dollar for copyright registration, or fifty cents in case of _interim_ or temporary copyright, and three copies of the book (full bound), map (mounted), etc., as printed and published in Canada, or written description of a work of art. A book must bear the statutory copyright notice, but a work of art the signature of the artist only. An author or his legal representative may obtain _interim_ copyright pending publication or republication in Canada or temporary copyright during serial publication, by registering the designation or title of a work. Thus a citizen of the United States may protect his work in Canada through international copyright by first publication in the British dominions and also through Canadian copyright, with additional protection, by complying with the requirements of the Canadian law, which are in some respects closely parallel with those of the United States.

{Sidenote: Newfoundland}

In Newfoundland, always a separate colony and now a self-governing dominion separate from the Dominion of Canada, an act of 1849 for the protection of British authors was followed by an Order in Council of the same year extending to that colony the provisions of the Imperial act of 1847. It made provision, following the precedent of Canada, for a customs duty on foreign reprints of British copyright works, which provision was re-enacted in the Consolidated Statutes of 1872 as chapter 53 and again in the Consolidated Statutes of 1892 as chapter 111, the duty being at twenty per cent. In 1890 a copyright act was passed, which remains the fundamental copyright act of Newfoundland, as included in the Consolidated Statutes of 1892 as chapter 110, supplemented by chapter 111, as above indicated. These two chapters have been amended only by the act of 1898 placing copyrights, patents and trade marks under the jurisdiction of the Colonial Secretary, an officer provided for in the act, and the act of 1899 reducing the copyright fee of one dollar to twenty-five cents in the case of photographs. Copyright in Newfoundland is on the same general lines as in Canada, following in large part the precedent of the United States, and is for a term of twenty-eight years with renewal for fourteen years--local protection as distinguished from Imperial protection being given to works printed and published--or in the case of works of art, produced--within Newfoundland, on condition of registration with the Colonial Secretary and deposit with him of two copies of a printed work, bearing statutory copyright notice, or of the description of a work of art,--which work must bear the signature of the artist,--one of the two copies being for the use of the Legislative Library.

{Sidenote: British West Indies, etc.}

In the British West Indies, Jamaica has domestic legislation of 1887 under the Imperial act of 1886, for the British term, requiring the deposit at an office notified in the Jamaica _Gazette_ of three copies within one month from publication--one for the British Museum, one for official use, and one for a designated public library. The Governor may declare one copy sufficient where deposit of three copies would inflict injury. Trinidad, under an ordinance of 1888, provides similarly for the deposit of three copies in the office of a Registrar of copying rights, with optional but not obligatory registration of playright. The minor British islands in the West Indies, the Bahamas, British Guiana and British Honduras, seem not to have provided local legislation, but remain exclusively under Imperial law.

{Sidenote: Australian code of 1905}