CHAPTER IX

COLONIAL COPYRIGHT

Every British Possession has the power to legislate independently as regards the protection within its own territory of literary or artistic works first produced therein.[1014] In respect of such works they may either limit or extend the protection afforded by the Imperial Acts. Most of our larger colonies have local Acts.[1015] Some of the colonies[1016] have, for instance, created a copyright in the news contained in foreign telegrams, a monopoly unknown under the Imperial Acts. It is not proposed here to deal with the colonial local Acts. They are of interest only in the various colonies themselves. This chapter will be restricted to the rights of a work published in one part of the British dominions to receive protection in any other part of the British dominions. This is controlled by the Imperial Copyright Acts, which extend since 1886 to every British Possession, and protect works published anywhere therein apart from any local legislation.

=Books.=--Before 1886, the Copyright Act, 1842, although it applied to the whole of the British dominions, only protected those books which were first published in the United Kingdom. A book, therefore, published first, say in Canada or Australia, received no copyright protection except by local legislation, if any, within the territory of the particular colony where it was first published.

A book first published in the United Kingdom was protected in every British colony, not only against copying but against the importation of reprints. The smaller and poorer colonies found this a considerable grievance. They alleged that they were unable to afford the price of English books, and that as they were prohibited from importing foreign reprints and had little or no contemporary literature of their own, they were reduced to reading the classics or nothing at all. The Colonial Copyright Act, 1847,[1017] was passed to give them relief. It enacts that when reasonable protection to the British author shall be provided in any British possession by the legislature of such possession, Her Majesty may, by Order in Council, declare that so long as such protecting provision shall be in force all Acts prohibiting the importation or sale or hire of foreign copies shall be in respect of such possession suspended. Altogether twenty colonies[1018] have taken advantage of this Act. It has been found, however, that the protecting provisions are of little value, and that the duties which are supposed to be levied on foreign reprints for the benefit of the British author are continually evaded, and the colonies under the Foreign Reprints Act are overrun with foreign reprints of popular books which, coming in practically free of duty, make the authors' copyright in such colonies absolutely valueless.

Books first published in the colonies received Imperial protection in 1886, when the International Copyright Act[1019] of that year was passed. It enacts that the Copyright Acts shall apply to a literary or artistic work first produced in a British Possession in like manner as they apply to a work first produced in the United Kingdom,[1020] with a proviso, firstly, that the enactments as to registration shall not apply if the law of the Possession in question provides for registration; and, secondly, that no delivery of copies shall be required. There is also a provision for evidence of colonial copyright by certified extract from the colonial register.

_Canada_ came under the Foreign Reprints Act, and, as a result, was so inundated with cheap reprints from the United States that the Canadian publishers, in 1875, obtained a local Act for their protection.[1021] This Act enacts that works of which the copyright has been granted and is subsisting in the United Kingdom, and copyright of which is not secured or subsisting in Canada under any Canadian or provincial Act, shall, upon being printed and published or reprinted and republished in Canada, be entitled to copyright under the Canadian Act.[1022] It prohibits _inter alia_ copying and importation of foreign copies, but nothing in the Act is to be held to prohibit the importation from the United Kingdom of copies of such works legally printed there. The Canadian Act is confirmed by an Imperial Act, the Canada Copyright Act, 1875,[1023] and this enacts that the Canadian copies of a British book may not be imported into the United Kingdom without the author's consent.

Although Canada came under the Foreign Reprints Act, 1847,[1024] and in accordance therewith imposed duties on foreign reprints for the benefit of the owner of the copyright, the collection of those duties has now been abandoned by the Tariff Customs Act (Canada), 1894,[1025] the result of which is that as regards Canada the provisions of the Imperial Copyright Act, 1842,[1026] section 17, are revived and the importation of foreign copies of works having an Imperial copyright is again prohibited.[1027] The same result will occur in other colonies which may by statute abandon their enactments for the collection of authors' duties.

The Canadian Legislature has recently passed a Copyright Act[1028] purporting to affect the importation into Canada of books published under an Imperial Copyright. The Act provides that if a book has acquired Imperial Copyright by first publication in the British dominions outside Canada, and a licence has been granted for its reproduction in Canada, the Canadian Minister of Agriculture may prohibit the importation into Canada of any copies of such book printed out of Canada and imported without the licensee's consent.

I think it is doubtful whether the last-mentioned Act is not _ultra vires_ of the Canadian Legislature. The Canadians have, since the British North American Act, 1867, claimed that they have the exclusive power of legislating in respect of and regulating copyright within the Dominion of Canada. This claim, however, has not been recognised in the Canadian courts. In _Smiles_ v. _Belford_[1029] a book was copyrighted in England, but not under the local Act of 1875 in Canada. An action was brought by the proprietor to restrain a reprint of the book in Canada. The defendants pleaded that the book was not protected in Canada since it was not copyrighted under the local Act. They argued that the British North American Act, in giving to the Parliament of Canada "exclusive legislative authority" in certain matters, including copyrights, excluded the operation of the Imperial Acts in Canada. They further argued that the confirmation of the Canadian Copyright Act, 1875, by the Imperial Parliament impliedly repealed the Imperial Copyright Act of 1842 in so far as it extended to Canada. The Court held that neither of these arguments was sound. With reference to the argument on the British North American Act, Burton, J. A., in the Court of Appeal, said:

"It is clear, I think, that all the Imperial Act intended to effect was to place the right of dealing with colonial copyright within the Dominion under the exclusive control of the Parliament of Canada, as distinguished from the provincial legislatures.... I entirely concur with the learned Vice-Chancellor in the opinion he has expressed that under that Act no greater powers were conferred upon the Parliament of the Dominion to deal with this subject than had been previously enjoyed by the local legislatures."

As regards the Imperial Act confirming the Canada Copyright Act, 1875, the Court held that it was passed merely to resolve doubts which would otherwise have arisen as to whether the Canada Copyright Act was not repugnant to the provisions of the Foreign Reprints Act, 1847, and the Order in Council thereunder applicable to Canada. Burton, J. A., said:

"It is scarcely reasonable to suppose that if the Imperial Parliament had thought fit to accept the Canadian enactment as a substitute for the 5 & 6 Vict. they would not have repealed it so far as it affected Canada in express terms, or that when stating a reason for Imperial legislation they would have confined themselves to a reference to the Order in Council, which dealt only with a portion of the prohibition referred to in that statute. I am of opinion, therefore, that they have stated the only reason which rendered it expedient to seek a confirmation of the Provisional Act, and that it was intended to preserve intact so much of the Imperial Act as prohibits the printing of a British copyright work in Canada, but giving to the author a further right on certain conditions of securing a Canadian copyright and thus preventing the importation into Canada of foreign reprints."

For some considerable time before the passing of the Canadian Act of 1900, the Canadians were negotiating for a clause in the Copyright Bill in this country enabling them to pass a similar provision to that which they have now passed without Imperial sanction. A clause was inserted in Lord Monkswell's Literary Copyright Bill, 1900, proposing to give to all the colonies such a power of protecting licensees. The Canadians, however, impatient of the delay in copyright reform in this country, passed their own Act without waiting to obtain authority. It would certainly be satisfactory to see it confirmed by an Imperial statute.

_Summary of Provisions in respect of Books._--The result of the various enactments with reference to the colonies is that, as regards copying, every book first published in any part of the British dominions is protected in every other part of the British dominions. The book must be duly registered either in the colony or dependency where it is produced, or, if such colony or dependency does not provide a proper system of registration, at Stationers' Hall in London. The protection within the colony in which a book is first produced depends on local legislation if such overrides the Imperial legislation. As to importation of copies, the result is not so simple, but it may be summarised thus:

If a book has been first published anywhere within the British dominions, the following prohibitions apply:

I. _The United Kingdom._--There shall not be imported into, or sold in, without the consent in writing of the owner of the copyright--

Copies printed outside the British dominions.[1030] Copies printed in Canada under the Canadian Act.[1031]

II. _Canada._--If the book has been printed and published, or reprinted and republished,[1032] and registered in Canada, there shall not be imported into, or sold in, without the consent in writing of the owner of the copyright--

Copies printed outside Canada[1033] unless legally printed in the United Kingdom under an Imperial copyright existing prior to the acquirement of a Canadian local copyright.[1034]

If a book has acquired Imperial copyright by first publication within the British dominions outside Canada, and the owner of the copyright has granted a licence to reproduce it in Canada, there shall not be imported (if the Minister of Agriculture so order) without the consent in writing of the Canadian licensee--

Copies printed outside Canada.[1035]

In other cases these shall not be imported or sold without the written consent of the owner of the copyright--

Copies printed outside the British dominions.

III. _Colonies under the Act of 1847 other than Canada._--There is no prohibition except the nominal import duty on copies printed outside the British dominions.

IV. _Other Colonies._--There shall not be imported into or sold in without the consent in writing of the owner of the copyright--

Copies printed outside the British dominions.[1036]

=Artistic Works.=--We have seen that since the International Copyright Act, 1886, there is complete protection throughout the whole of the British dominions for books first published anywhere therein. It was evidently intended that artistic works should be placed on the same footing, but unfortunately the distinction between the literary and artistic Acts was overlooked. The Copyright Act, 1842, protected books published in the United Kingdom, but expressly extended the protection to the whole of the British dominions. None of the artistic copyright Acts extend their protection beyond the United Kingdom. The Engraving Acts expressly limit their protection to the United Kingdom;[1037] the Paintings, Drawings, and Photographs Act expressly limits its remedies to the United Kingdom;[1038] and the Sculpture Act is silent as to the extent of its protection.[1039] The result seems to be that although since 1886 all works of art first published anywhere throughout the British dominions will be protected by Imperial legislation, that protection extends no further than the United Kingdom. This has been decided by a divisional Court in Canada in respect of the Paintings, Drawings, and Photographs Act, 1862.[1040] The decision will apply _a fortiori_ to engravings. Sculptures may be different, in that there is no express limit contained in the Sculptures Act; but probably a limitation of protection to the United Kingdom will be implied. The result is that artistic works are only protected in the Colonies and dependencies under local legislation.