Chapter XIV: Part 14

Copyright is granted to authors for twenty-eight years from the date
of first publication, whether the copyrighted work bears the author's
true name or is published anonymously or under an assumed name. A
further term of twenty-eight years is granted to the author if at the
expiration of the first term he be still living, or to his widow and
children if he be dead. If the author's widow and children be dead an
extension is granted to the author's executors, or in the absence of a
will, to his next of kin. Applications for renewal and extension must
be made to the copyright office and duly registered therein within one
year prior to the expiration of the existing term. To any work in
which copyright subsists at the time the act went into force the act
extends renewal for a period of twenty-eight years at the expiration
of the time provided for under the previously existing law (first
period 28 years, renewal period 14 years). The works for which
copyright may be secured under the act "Shall include all the writings
of an author." For purposes of registration the act classifies (1)
books, including composite and cyclopaedic works, directories,
gazetteers and other compilations; (2) periodicals, including
newspapers; (3) lectures, sermons, addresses, prepared for oral
delivery; (4) dramatic or dramatico-musical compositions; (5) musical
compositions; (6) maps; (7) works of art; models or designs for works
of art; (8) reproductions of a work of art; (9) drawings or plastic
works of a scientific or technical character; (10) photographs and
(11) prints and pictorial illustrations. But compilations or
abridgments, adaptations, arrangements, dramatizations, translations
or other versions of copyrighted works, when produced with the consent
of the proprietors of the copyrighted work are, under the 1909 act,
new works subject to copyright. A citizen or subject of a foreign
state can secure copyright only when he is domiciled within the United
States at the time of the first publication of his work, or when the
foreign state or nation of which he is a subject grants, either by
treaty, convention, agreement or law, to citizens of the United States
the benefit of copyright on substantially the same basis as to its own
citizens, or copyright protection equal to that secured by the foreign
author under the United States act, or when the foreign state is a
party to an international agreement providing for reciprocity in the
granting of copyright, and the United States may, by the terms of that
agreement, become a party thereto. After copyright has been secured by
publication of a work, two complete copies of the best edition
published must be "promptly" deposited in the copyright office, or
mailed to the register of copyrights, the postmaster, on request,
giving a receipt and mailing the books without cost. If the work be a
contribution to a periodical, one copy of the issue containing it must
be sent, or if it be a work not reproduced in copies for sale, a copy,
print, photograph or other identifying reproduction must accompany the
claim. Prior to 1891 the works of authors could be put into print on
either side of the Atlantic. The act of 1891 laid down that, in order
to secure copyright, all editions of the works of all authors,
resident or non-resident, must be entirely manufactured within the
United States, the term "manufactured" including the setting of type
as well as printing and binding. This manufacturing condition was
insisted on by the typographical unions. There is no logical
connexion, however, between the right of an author or artist to the
control of his production and the interests of American workmen; the
attempt to legislate for them jointly must bring about no little
confusion and inequity. If American working-men cannot secure a living
in competition with labourers on the other side of the Atlantic, their
needs should be cared for under the provisions of the protective
tariff. It is, however, the belief of a large number of those who are
engaged in the manufacturing of books that, with his advanced methods
of work, the skilled American labourer has no reason to dread the
competition of European craftsmen. With this manufacturing condition
out of the way, there would be nothing to prevent the United States
from becoming a party to the Bern Convention. This would place
intellectual property on both sides of the Atlantic on the same
footing. The power of the unions was sufficiently strong to prevent
this condition being eliminated from the act of 1909, but the just
claims were met of authors whose books are originally produced in some
language other than English, the "original text of a book of foreign
origin in a language or languages other than English" being exempted
from the requirements as to type-setting in the United States. On the
other hand the manufacturing condition is extended by the act of 1909
to illustrations within a book, and also to separate lithographs or
photo-engravings, "except where in either case the subjects
represented are located in a foreign country and illustrate a
scientific work or reproduce a work of art." The notice of copyrights
required by the act consists either of the word "copyright" or by the
abbreviation "Copr.," accompanied by the name of the copyright
proprietor, and in the case of printed literary, musical or dramatic
works, the notice must include also the year in which the copyright
was secured by publication. In the case of works specified in 6 to 11
inclusive, of the classification given above, the copyright notice may
consist of the letter C enclosed within a circle, thus: (c),
accompanied by the initials, monogram, mark or symbol of the copyright
proprietor, provided that on some accessible portion of the copy or of
the margin, or on the back or pedestal his name appears.

Interim protection.

Infringement.

Musical compositions.

Transfer and assignment of copyright.

Importation of copyright works.

The act of 1909 gives an _interim_ protection to a book published
abroad in the English language before publication in the United
States, the deposit in the copyright office, not later than thirty
days after its publication abroad, of one complete copy of the foreign
edition, with a request for the reservation of the copyright and a
statement of the name and nationality of the author and copyright
proprietor, securing copyright for thirty days from the date of
deposit. Any person infringing a copyright work is liable to an
injunction, and to pay such damages as the copyright proprietor may
have suffered by the infringement; in lieu of actual damages and
profits the courts may award such damages as appear to be just, and in
assessing them may, at its discretion, allow the amounts mentioned
below, except that in the case of a newspaper reproduction of a
copyrighted photograph such damages must not exceed the sum of two
hundred and fifty dollars nor be less than fifty dollars, and in no
other case must the damages be more than five thousand dollars or less
than two hundred and fifty dollars: (1) In the case of a painting,
statue or sculpture, ten dollars for any infringing copy made or sold
or found in the possession of the infringer or his agents or
employees; (2) in the case of any work enumerated in the
classification given before, except a painting, statue or sculpture,
one dollar for every infringing copy; (3) in the case of a lecture,
sermon or address, fifty dollars for every infringing delivery; (4) in
the case of dramatic or dramatico-musical or a choral or orchestral
composition, one hundred dollars for the first and fifty dollars for
every subsequent infringing performance; in the case of other musical
compositions, ten dollars for every infringing performance; all
infringing copies and devices must also be delivered up for
destruction. The act gives full control over his compositions to a
musical composer, and the right to make any arrangement or setting of
it, or of the melody of it, in any system of notation or form of
record from which it may be read or reproduced. His right to control
the reproduction of his music by mechanical instruments is restricted
(1) to cover only music published and copyrighted after the act went
into effect; (2) to include a musical composition by a foreign
composer only in the case of a citizen of a foreign state that grants
to citizens of the United States similar rights; (3) where the owner
of a musical copyright has permitted the use of his work upon parts of
instruments serving to reproduce the composition mechanically,
permission for a similar use of such work must be accorded to any
other person on the payment of a fixed royalty of two cents on each
part manufactured. The act makes a clear distinction between the
property in the copyright and that in the material object representing
the copyright, and enacts that the sale or conveyance of the material
object shall not of itself constitute a transfer of the copyright.
Transfer of copyright in the United States is to be effected by an
instrument in writing signed by the proprietor of the copyright, or
the copyright may be bequeathed by will. Assignment of copyright
executed in a foreign country must be acknowledged by the assignor
before a consular officer of the United States. Every assignment of
copyright must be recorded in the copyright office within three
calendar months after its execution in the United States or within six
months without the limits of the United States. The importation into
the United States is forbidden of any piratical copies of a
copyrighted book or of any copies not produced in accordance with the
manufacturing provisions of the act (although authorized by the author
or proprietor), but importation is allowed to any society or
institution incorporated for educational, literary, philosophical,
scientific or religious purposes, or for the encouragement of the fine
arts, or to any State school, college, &c., or to free public
libraries, when importation is for use and not for sale. The act of
1891 allowed "_two_ copies in any one invoice" to be imported, but by
the act of 1909 not more than _one_ copy is to be imported in one
invoice.

The provisions having to do with international copyright become operative in the case of a foreign state only when the president proclaims that the state has fulfilled the condition of reciprocity. The act of 1891 was put into force with foreign states as follows:--1st of July 1891, Great Britain, Belgium, France, Switzerland; 8th of March 1892, Germany (by separate treaty); 31st of October 1892, Italy; 8th of May 1893, Denmark; 15th of July 1895, Spain; 20th of July 1895, Portugal; 27th of February 1896, Mexico; 13th of April 1896, Sweden and Norway; 25th of May 1896, Chile; 19th of October 1899, Costa Rica; 20th of November 1899, the kingdom of the Netherlands. In the case of each state the territory covered by the provisions of the law included the possessions, dependencies, &c. The copyright agreement with Great Britain therefore covered the crown colonies of the empire, including India and the self-governing dominions and states, such as Canada, Australia, &c. An American work duly entered for copyright in Great Britain secures, as a British publication secures, the protection of copyright under the provisions of the Bern convention throughout the territory of the several states that are parties to that convention.

ARTISTIC COPYRIGHT

19. Literary authors had protection for their literary work much earlier than artists for their artistic productions. Pictures and illustrations, when included in books or newspapers, are protected by the law which applies to the latter, but that is a separate question. It was not until the reign of George II. that the legislature in England afforded any protection for the work of artists. The English law on artistic copyright is alone considered in this account, the American having been included in the section _United States_ above (18), while for other countries the details are so various that it is only possible to refer the reader to the leading text-books.

Engravings.

The first Artists' Copyright Bill was passed in the interest of William Hogarth, one of the greatest of English painters, who was engraver as well as painter, and who devoted a considerable portion of his time to engraving his own works. No sooner, however, were these published than his market was seriously damaged by the issue of inferior copies of his engravings by other publishers. To protect Hogarth from such piracy the Engraving Copyright Act 1734 was passed, which provided that "every person who should invent and design, engrave, etch, or work in mezzotinto or chiaroscuro, any historical or other print or prints, should have the sole right and liberty of printing and representing the same for the term of fourteen years, to commence from the day of the first publishing thereof, which shall be truly engraved with the name of the proprietor on each plate, and printed on every such print or prints." The penalty for piracy was the forfeiture of the plate and all prints, with a fine of 5s. for every pirated print.

In 1766, in the reign of George III., a second Engraving Copyright Act was passed "to amend and render more effectual" the first act, and "for vesting and securing to Jane Hogarth, widow, the property in certain prints," which extended the protection beyond the designer, who was also engraver, to any person who, not being himself a designer, made, or caused to be made, an engraving from any picture or other work of art. Jane Hogarth, the widow of the painter, found herself nearing the termination of the fourteen years' term of copyright grant by the first act, with the probability that immediately on its expiry the engravings of her husband then on sale, and on which her livelihood depended, would be immediately pirated. It was mainly to save her from the loss of her livelihood that this second Copyright Bill extended the term of the copyright to twenty-eight years.

The engravers and publishers of the day were not over-scrupulous, and they sought to evade the penalties of the copyright acts by taking the designs, and adding to them or taking from them, or both, and producing fresh engravings, seeking to make it appear that they were producing new works. These practices assumed such proportions that it became necessary, in 1777, to call upon parliament to put through another short measure still further to protect the engraver, by prohibiting the copying "in whole or in part" (a clause not contained in the previous acts), by varying, adding to, or diminishing from, the main design of an engraving without the express consent of the proprietor or proprietors. These three acts remain in force to the present day. In 1852, in an international copyright act, it was declared that the Engraving Copyright Acts collectively were intended to include prints taken by lithography or any other mechanical process.

Sculpture.

20. In May 1814 the Sculpture Copyright Act was passed to give protection to sculptors. The term of copyright for sculptors was a peculiar one. It was to last for fourteen years, with the proviso that, should the author be still alive, he should enjoy a further period of fourteen years, the copyright returning to him for the second fourteen should he have disposed of it for the first period. It is a condition of copyright with the sculptor that the author must put his name with the date upon every work before putting it forth or publishing it. A curious and interesting point in the interpretation of this act is, that according to the opinion of eminent jurists it is necessary to an infringement of the copyright of a piece of sculpture that the copy of it must take the form of another piece of sculpture; that a photograph, drawing, or engraving of a piece of sculpture is not to be considered a reproduction of it, and is therefore not an infringement of the sculptor's copyright.

Painting.

21. Strange as it may seem, painting was the last branch of the arts to receive copyright protection. The cause of the painters was taken up by the Society of Arts, who endeavoured, in the first instance, to pass an amendment and consolidation bill dealing with engraving, sculpture and painting; but, failing in their first effort, they limited their second to an attempt to pass a bill in favour of painting, drawing and photography. It was in the year 1862 that this act, having passed through parliament, came into force. The absence of any antecedent protection for the painter is clearly stated in its preamble, which reads as follows: "Whereas by law as now established, the authors of paintings, drawings, and photographs have no copyright in such their works, and it is expectant that the law should in that respect be amended. Be it, therefore, enacted," &c. This preamble makes it clear that there is no copyright in any paintings, drawings, or photographs executed and dealt with before the year 1862--to be exact, 29th July of that year. The duration of the term of copyright in this act of 1862 differs from its predecessors, by being made dependent on the life of the author, to which life seven years were added. In the Literary Copyright Act there are two terms--the life of the author and seven years, or forty-two years, whichever may prove the longer. In taking a fixed term like forty-two years it is necessary to have something to start from, and with a literary work it was easy to start from the date of publication. But pictures are not published. They may pass from the studio to the wall of the purchaser without being made public in any way. The difficulty was evidently before the author of this act, and the artist's term was made his life and seven years after his death without any alternative. This term applies equally to photographers. Perhaps no bill which ever passed through parliament ostensibly for the purpose of benefiting a certain set of people has failed so completely as has this bill to accomplish its end. It started by proposing to give copyright to authors of paintings, drawings and photographs, and it would seem that no difficulty ought to have arisen as to whom such copyright should rightly belong; but the following clause of the act has introduced confusion into the question of ownership:--

Provided that when any painting, or drawing, or the negative of any
photograph, shall for the first time after the passing of this act be
sold or disposed of, or shall be made or executed for or on behalf of
any other person for a good or valuable consideration, the person so
selling or disposing of, or making or executing the same, shall not
retain the copyright thereof unless it be expressly reserved to him by
agreement in writing, signed at or before the time of such sale or
disposition, by the vendee or assignee of such painting or drawing, or
such negative of a photograph, or by the person on whose behalf the
same shall be so made or executed; but the copyright shall belong to
the vendee or assignee of such painting or drawing, or such negative
of a photograph, or to the person for or on whose behalf the same
shall have been made or executed; nor shall the vendee or assignee
thereof be entitled to such copyright unless at or before the time of
such sale or disposition an agreement in writing, signed by the person
so selling or disposing of the same, or by his agent duly authorized,
shall have been made to that effect.

That is to say, after promising the author copyright in his work for life and seven years, the act stipulates that in order to get it the author must, at the time of the first sale or disposition of his picture, obtain a document in writing from the purchaser of the picture, reserving the copyright to the author, and the act goes on to say that if he does not take this step the copyright becomes the property of the purchaser of the picture, but with the proviso, in order to secure it to him, he must have a document signed by the artist assigning the copyright to him; but if neither of these things is done, and no document is signed, the copyright does not belong to either the artist who sells or the client who buys, and the act is silent as to whom it does belong to. It has disappeared and belongs to no one. There is no copyright existing in the work for any one. It has passed into the public domain, and any one who can get access to the work may reproduce it. Now, as most purchases are made from the walls of exhibitions, in ninety-nine cases out of a hundred the copyright is absolutely lost. And where the sale is arranged directly between the artist and his client, the difficulty experienced by the artist in raising the question as to whom the copyright shall belong to is so great, owing to the dread lest the mere mention of the signing of a document should cause the selling of the picture to fall through, that in numerous such cases the copyright lapses and becomes public property. Photographers are not affected by this clause, because they do not as a rule sell the negatives they produce, and with them the copyright lies in the negative. They carry on their trade in prints without the question of the negative arising. The picture-dealer, also, who buys a picture and copyright is not subjected to the same disability as the painter. The picture-dealer can sell a picture without saying a word to his client as to the copyright, which he, nevertheless, retains intact; the provision is applicable only to the _first_ sale of the work, which, therefore, throws the whole of the disability upon the painter.

The act gives the copyright of every work executed on commission to the person by whom it is commissioned. It makes it compulsory upon every owner of a copyright that he should register it at Stationers' Hall before he can take any action at law to protect it. The copyright does not lapse if unregistered, but so long as it remains unregistered no action at law can be taken on account of any infringement. A copyright can be registered at any time, even after an infringement, but the owner of the copyright cannot recover for any infringement before registration. The act provides for both penalties and damages in the following cases:--(1) For infringing copyright in the ordinary way by issuing unlawful copies. (2) For fraudulently signing or affixing a fraudulent signature to a work of art. (3) For fraudulently dealing with a work so signed. (4) For fraudulently putting forth a copy of a work of art, whether there be copyright in it or no, as the original work of the artist. (5) For altering, adding to, or taking away from a work during the lifetime of the author if it is signed, and putting it forth as the unaltered work of the author. (6) For importing pirated works.

The incongruities of this act were so apparent that its promoters
desired to stop it, feeling that it would be better to have no bill at
all than one which conferred so little upon the people it was intended
to benefit; but Lord Westbury, the lord chancellor, who had charge of
the bill in the House of Lords, advised them to let it go through with
all its imperfections, that they might get the right of the painter to
protection recognized. This advice was followed, and the bill had no
sooner become law than a fresh effort was started to have it amended.
Year by year the agitation went on, with the exception only of a
period when Irish affairs took up all the attention of parliament, and
domestic legislation was rendered impossible. But in 1898 the
Copyright Association of Great Britain promoted a bill, which was
introduced into the House of Lords by Lord Herschell. It was a measure
designed to deal with all forms of copyright--literary, musical,
dramatic and artistic--and was remitted by the House of Lords for
consideration to a committee, which, having sat for three sessions,
decided not to proceed with Lord Herschell's measure, but to treat
literature and art in separate bills. It had under its consideration
an artistic bill, drafted for and presented by the Royal Academy, and
a literary bill and an artistic bill drafted by the committee itself.
The main proposals in the latter were to give copyright to the author
of any artistic work or photograph for a period of life and thirty
years, unless the work be commissioned, in which case the copyright
was to be the property of the employer, except in the case of
sculpture intended to be placed in a street or public place. The bill
provided summary remedies for dealing with pirated works. It omitted
altogether any reference to registration, and it provided for
international copyright.

22. To sum up the position of artistic copyright in 1909, we find five British acts, three dealing with engraving, one with sculpture, and one with painting, drawing and photography, and between them very little relation. We have three terms of duration of copyright--28 years for engraving, 14 for sculpture, with a second 14 if the artist be alive at the end of the first, life and 7 years for painting, drawing or photography. There are two different relations of the artist to his copyright. The sculptor's right to sell his work and retain his copyright has never been questioned so long as he signs and dates it. The painter's copyright is made to depend upon the signing of a document by the purchaser of his work. The engraver and the sculptor are not required to register; but the author's name, and the date of putting forth or publishing, must appear on his work. The painter cannot protect his copyright without registration, but this registration as it is now required is merely a pitfall for the unwary. Designed to give the public information as to the ownership and duration of copyrights, the uncertainty of its operation results in the prevention of information on these very points.

The Berlin Convention of 1908 led to the appointment of a British committee to deal with its recommendations, and their report in 1909 foreshadowed important changes in the law both of literary and of artistic copyright, whenever Parliament should give its attention seriously to the subject.

Practical difficulties.

Difficult and complicated as is the whole subject of artistic copyright, it is perhaps not to be wondered at that ignorance of the law on the subject is very widespread, even amongst those who are most interested in its action. One of the commonest beliefs amongst artists is, that all they have to do to secure copyright is to register a picture at Stationers' Hall; but the authorities at Stationers' Hall ask no questions, and simply enter any particulars submitted to them on their printed form. Some artists make a practice, when they send a picture away to exhibition, to fill up one of these forms, reserving the copyright by their entry to themselves, in the belief that, if accompanied by the fee required by the Hall, its entry will reserve the copyright to them, oblivious of the fact that the only thing which can reserve the copyright to them is the possession of a document assigning the copyright to them by the purchaser of the picture. Another useless method of attempting to reserve artists' copyrights is that adopted by the promoters of public exhibitions, with whom it is an almost constant practice to print on some portion of the catalogue of the exhibition a statement that "copyrights of all pictures are reserved," the impression apparently prevailing that a notice of this kind effectively reserves the copyright for the artist while selling his picture from the walls. It, of course, does no such thing, and the copyright of any picture sold in these circumstances, without the necessary document from the purchaser, must be lost to the artist, and pass irrevocably into the public domain.

In a work of art the work itself and the copyright are two totally distinct properties, and may be held by different persons. The conditions differ materially from those of a work of literature, in which as a rule there is no value apart from publication. There is a value in a work of art for its private enjoyment quite apart from its commercial value in the form of reproductions; but when the two properties exist in different hands, the person holding the copyright has no power to force the owner of the work of art to give him access to it for purposes of reproduction; this can only be effected by private arrangement. It has been argued that, as the two properties are so distinct, the owner of the copyright ought to have the right of access to the picture for the purpose of exercising his right to reproduce it. But it is easy to see that it would destroy the value of art property if proprietors knew that at any moment they might be forced to surrender their work for the purpose of reproduction, though for a time only.

There is often a strong sympathy between the artist and the person who buys his picture, and it is not at all unusual, when application is made to the owner of the picture for access to it, for him to submit the question of reproduction to the artist. Although the latter may really have no right in it, it is felt, as a practical matter, that he is largely interested in the character of the reproduction it is proposed to make. Hence the courtesy which is usually extended to him.

Owing also to the increased facilities of reproduction, the practice has become very common of splitting up copyrights and granting licences in what may be described as very minute forms. It would, of course, be impossible for a publisher to pay an artist the sum at which he values his entire copyright, simply that he might reproduce his picture in the form of a black-and-white block in a magazine, and it has consequently become quite common for the artist to grant a licence for any and every particular form of reproduction as it may be required, so that he may grant the right of reproduction in one particular form in one particular publication, and even for a particular period of time, reserving to himself thus the right to grant similar licences to other publishers. This is apparently not to the injury of the artist; it is probably to his advantage, and it certainly promotes business.

Photographs.

23. The great obstacle in the way of securing a really good Artistic Bill has been the introduction into it of photography. It was by a sort of accident that the photographer was given the same privileges as the painter in the bill of 1862. The promoters of the bill thought that the photographer would be protected by the Engraving Acts which covered prints; but since the photographers feared that, as their prints were of a different character from the prints from a plate, the Engraving Acts might not protect them, it was at the last moment decided to put photography into the Art Bill. The result of this was that the painter lost his chance of copyright on all works executed on commission. Legislators feared that if photographers held copyright in all their works the public would have no protection from the annoyance of seeing the photographs of their wives and daughters exhibited and sold in shop windows by the side of "professional beauties" and other people, and made articles of commerce. So in the case of commissioned works the copyright was denied to both painters and photographers.

The royal commission which reported on the subject in 1878 proposed two distinct terms of copyright for painting and photography. The term for the painter was dependent on his life; that for the photographer was a definitely fixed term of years from the date of publication of his photographs; and there can be little doubt that this is the right way to deal with the two branches of copyright. The artist who paints a picture signs it, and there is no difficulty in knowing who is the author of a painting and in whom the term of copyright is vested. In a very large number of cases a photograph is taken by an employee, who is here to-day and gone to-morrow, and even his employer knows nothing of his existence. Of course, it may suit an employer to be able to maintain secrecy as to the authorship of his negative, inasmuch as it enables him to go on claiming copyright fees indefinitely; but it is not to the public interest. In most countries on the continent of Europe a photographer has the fixed term of five years' copyright in an original photograph dating from its publication, which date, together with the name and address of the photographer, has to be stamped on every copy issued. In the public interest this is a good method of dealing with photographs.

24. The "authorship" of a photograph has been much debated in the law courts; and "author" was defined in _Nollage_ v. _Jackson_ (1883) as "the man who really represents or creates, or gives to ideas, or fancy, or imagination, true local habitation--the man in fact who is most nearly the effective cause of the representation" (_per_ Lord Justice Bowen). He is not necessarily the owner of the camera, or the proprietor of the business; it depends on the circumstances. He is essentially the person who groups and effectively superintends the picture. When a photographer takes a portrait without fee, the copyright vests in him and not in the sitter, who cannot prevent its publication; but if the photograph is commissioned and paid for by the sitter the copyright--in the absence of contrary stipulations--vests in him, and he can restrain exhibition or multiplication of copies; "the bargain includes, by implication, an agreement that the prints taken from the negative are to be appropriated to the use of the customer only" (Mr Justice North in _Pollard_ v. _Photographic Co._, 1888). And this applies even when the sitter is not the actual purchaser of the negative (_Boucas_ v. _Cooke_, 1903). But in several cases the "celebrity" who has _sat_ to a photographer at his request and without payment has not been allowed to distribute his photograph to newspapers for reproduction without the photographer's consent. The fact that a sitter pays the photographer for prints, though he has not commissioned the sitting, would not vest the copyright in him.

25. The "Living Pictures" case in 1894 (_Hanfstangel_ v. _Empire Palace_) was a curious one. The Empire music-hall in London produced some _tableaux vivants_, representing certain pictures, of which Messrs Hanfstangel owned the copyright, and an action was brought by them for an injunction. The courts of chancery and of appeal decided against the plaintiffs, on the ground that a reproduction of a painting must be by a painting or something cognate; but in an action for infringement, though the view already given was confirmed, the plaintiffs succeeded so far as the backgrounds to the grouping were concerned. Meanwhile two newspapers had published sketches of the same _tableaux vivants_, and Messrs Hanfstangel brought actions for infringement (_Hanfstangel_ v. _Newnes_, and v. _Baines_, 1894). Mr Justice Stirling found for the plaintiffs, but on appeal, and finally in the House of Lords, this decision was reversed.

Designs.

26. _Copyright in Designs._--An act of 1787 first gave protection to printed designs on linen and cotton fabrics; and in 1839 a further act included designs on animal fabrics, or mixed animal and vegetable fabrics; while in the same year another act protected designs for manufactured articles. These acts had been preceded in France by laws of 1737 and 1744 creating a property by law in manufacturers' designs. The British law, which in various acts established a copyright (a) in ornamental and (b) useful designs, was in 1883 consolidated in the Patents, Designs and Trade Marks Act, with amending acts up to 1888; and these acts were further consolidated and amended by an act of 1905. See TRADE-MARKS and PATENTS.

BRITISH IMPERIAL COPYRIGHT BILL OF 1910

The consolidation of the British copyright law, not only in the United Kingdom but in the Dominions, and its amendment so as to include the recommendations of the Berlin International Convention of 1908, were the objects of a government bill introduced into parliament by the president of the Board of Trade on the 26th of July 1910, discussion on which was reserved for a later period in the year. The passing of this bill, though the date of it was uncertain owing to the peculiar circumstances of English politics at the moment, was practically assured by the facts that, apart altogether from the crying need for a revision of the English law, the draft had previously been considered and accepted, not only by a Board of Trade Committee which reported unanimously in favour of the recommendations of the Berlin Convention, but also by an Imperial Conference. The bill for the first time brought British copyright entirely under statutory law and consolidated and amended all previous enactments; it adopted the suggestions of the Imperial Conference (attended by representatives of Canada, Australia, South Africa, New Zealand and Newfoundland, other interests being covered by home representatives of the Foreign Office, India Office, Colonial Office and Board of Trade) as to providing for its extension by their declaration to the Dominions; and with its enactment a great simplification of the British law of copyright came in sight, though for historical reasons the details given above of the law as unamended must still remain of value.

Briefly, the new points of importance, apart from the placing of all copyright on a purely statutory basis and the inclusion of literary and artistic copyright within one arrangement, were as follows. All compulsory formalities of registration were abolished. The length of the period for which copyright lasted was extended to the life of the author and 50 years after. This reform was qualified, however, by a clause intended to protect the public from its abuse, and providing that after the author's death, if the work was withheld from the public or published at too high a price, or if the reasonable requirements of the public were not satisfied, a licence might be granted to publish or perform it. These changes applied to all the subject-matters of copyright, which were now put on the same level and treated uniformly. In certain cases, already discussed above, protection was extended: e.g. translations and lectures, original adaptations and arrangements, works of artistic novelty, including architectural designs; and the right to dramatize a novel or "novelize" a drama was conferred in each case on the author. Musical works were protected against unauthorized reproduction by mechanical means without payment; but protection was also extended to the mechanical record when authorized.

In including all sorts of intellectual product the bill followed the recommendation (resolution 6) of the Imperial Conference as to the definition of copyright (Parl. Paper Cd. 5272): "the Conference is of opinion that, subject to proper qualifications, copyright should include the sole right to produce or reproduce a work, or any substantial part thereof, in any material form whatsoever and in any language, to perform, or in the case of a lecture, to deliver, the work or any substantial part thereof in public, and, if the work is unpublished, to publish the work, and should include the sole right to dramatize novels and vice versa, and to make records, &c., by means of which a work may be mechanically performed." As to architecture and artistic crafts the Conference recommended (resolution 9) that "an original work of art should not lose the protection of artistic copyright solely because it consists of, or is embodied in, a work of architecture or craftsmanship; but it should be clearly understood that such protection is confined to its artistic form and does not extend to the processes or methods of reproduction, or to an industrial design capable of registration under the law relating to designs and destined to be multiplied by way of manufacture or trade."

As to the application of the new period of copyright to existing works, the Conference recommended (resolution 10) "that existing works in which copyright actually subsists at the commencement of the new act (but no others) should enjoy, subject to existing rights, the same protection as future works, but the benefit of any extension of terms should belong to the author of the work, subject, in the case where he has assigned his existing rights, to a power on the part of the assignee at his option either to purchase the full benefit of the copyright during the extended term, or, without acquiring the full copyright, to continue to publish the work on payment of royalties, the payment in either case to be fixed by arbitration if necessary."

The Conference was also of opinion (resolution 4a) that, under the new Imperial Act, copyright should subsist only in works of which the author was a British subject or bona fide resident in one of the parts of the British Empire to which it extended; and that copyright should cease if the work were first published elsewhere than in such parts of the Empire.

The sensible basis on which the new bill was framed, and the authority it represented, commended it, in spite of many controversial points, to the acceptance both of the public and of the various parties concerned. But nobody who had ever wrestled with all the difficulties of international copyright, as complicated by the law in the United States, would suppose that it was the last word on the subject. What the bill did was to bring British legislation into better shape, and to amend it on certain points which had worked unjustly. The great distinction between the requirements for British and for American copyright still remained, namely, the American manufacturing clause. Perhaps the most notable innovation was the clause enabling a licence to be granted for the publication of a copyright work where the owners of the copyright had not exercised it for the "reasonable requirements" of the public. Some such clause was clearly called for when the period of monopoly was being extended; but the interpretation to be put upon the occasions which would justify such interference might well be difficult. It may perhaps be suggested that this innovation pointed to a reconsideration of the true relations of "publishers" and "authors" (in the widest sense) in respect of copyright, which sooner or later might be approached from a different point of view. The new clause was intended for the protection of the public from the mishandling of an author's work after his death, while greater protection was given him during his life. From a purely business point of view, the question might well be whether a publisher or other party not the author should have a copyright at all, and whether equity would not be satisfied if copyright vested solely in the author and his family, with liberty to any one to "publish" on fair terms, consideration being had to an original publisher's reasonable claims and existing contracts. The advisability of any such advance on the principle now asserted must depend rather on experience of actual business and the working of the clause; but even under the procedure provided by the bill of 1910 it would equally be imperative for a publisher who owned a deceased author's copyright to show that he had given or was giving the public valuable consideration for his monopoly, in order to uphold it against any one willing, on payment of a reasonable royalty, to serve the public better.

AUTHORITIES.--For special points see W. A. Copinger's _The Law of
Copyright in Works of Literature and Art_, 4th ed., by J. M. Easton
(1904); or T. E. Scrutton's _Law of Copyright_ (3rd ed., 1896). See
also E. J. MacGillivray, _A Treatise on the Law of Copyright_ (1902);
Richard Winslow, M.A., LL.B., _The Law of Artistic Copyright_ (London,
1889); A. Birrell, _Copyright in Books_ (London, 1899); B. A. Cohen,
_Law of Copyright_ (London, 1896); L. Edmunds, _Copyright in Designs_
(London, 1908); Knox and Hind, _Copyright in Designs_ (London, 1899);
W. Briggs, _Law of International Copyright_ (1906); W. M. Colles and
H. Hardy, _Playright and Copyright in all Countries_ (1906).

FOOTNOTE:

[1] Such articles must be paid for, in order to vest copyright in the
proprietor. The leading case about encyclopaedias is that of
_Lawrenceand Bullen_ v. _Aflalo_, decided by the House of Lords in
1904.