Part 30

11. The quasi-copyright in titles of books, periodicals, &c. is founded on the desirability of preventing one person from putting off on the public his own productions as those of another. This is, however, not copyright, but a question of ordinary fraud. The name of a journal (if sufficiently established) is a species of trade-mark in which the law recognizes what it calls a "species of property," provided any misleading of the public is involved. Thus, the _Wonderful Magazine_ was invaded (1803) by a publication calling itself the _Wonderful Magazine, New Series Improved_. _Bell's Life in London_ was pirated (1859) by a paper calling itself the _Penny Bell's Life_. The proprietors of the _London Journal_ got an injunction (1859) against the _Daily London Journal_, which was projected by the person from whom they had bought their own paper, and who had covenanted with them not to publish any _weekly_ journal of a similar nature. A song published under the title of _Minnie_, sung by Madame Anna Thillon and Miss Dolby at Monsieur Jullien's concerts, was invaded (1855) by a song to the same air published as _Minnie Dale, Sung at Jullien's Concerts by Madame Anna Thillon_. On the other hand, the _Sphere_ and _Spear_, titles of misleading similarity, assumed by two weekly periodicals that appeared almost simultaneously in London in 1900, could not successfully attack each other, because neither had an established reputation when first adopted.

Drama and music.

12. Dramatic and musical compositions stand on this peculiar footing, that they may be the subject of two entirely distinct rights. As writings they come within the general Copyright Act, and the unauthorized multiplication of copies is a piracy of the usual sort. This was decided to be so even in the case of musical compositions under the act of 1709. The Copyright Act of 1842 includes a "sheet of music" in its definition of a book. Separate from the copyright thus existing in dramatic or musical compositions is the stage-right or right of representing them on the stage; this was the right created by the Dramatic Copyright Act of 1833, in the case of dramatic pieces. This act gave the owner of the stage-right (right of representation) a period of twenty-eight years, or the duration of the author's life if longer. The Copyright Act 1842 extended this right to musical compositions, and made the period in both cases the same as that fixed for copyright. And the act expressly provides (meeting a contrary decision in the courts) that the assignment of copyright of dramatic and musical pieces shall not include the right of representation unless that is expressly mentioned. The act of 1833 prohibited representation "at any place of public entertainment," a phrase which was omitted in the act of 1842, and it may perhaps be inferred that the restriction is now more general and would extend to any unauthorized representation anywhere. A question has also been raised whether, to obtain the benefit of the act, a musical piece must be of a dramatic character. The dramatization of a novel, i.e. the acting of a drama constructed out of materials derived from a novel, is not necessarily an infringement of the copyright in the novel (supposing it to be possible to do it without making any sort of colourable copy of the literary form), but to publish a drama so constructed has been held to be a breach of copyright (_Tinsley_ v. _Lacy_, 1863, 1 H. & M. 747, where defendant had published two plays founded on two of Miss Braddon's novels, and reproducing the incidents and in many cases the language of the original). Where two persons dramatize the same novel, what, it may be asked, are their respective rights? In _Toole_ v. _Young_, 1874, 9 Q.B. 523, this point actually arose. A, the author of a published novel, dramatized it and assigned the drama to the plaintiff, but it was never printed, published or represented upon the stage. B, ignorant of A's drama, also dramatized the novel and assigned his drama to the defendant, who represented it on the stage. It was held that any one might dramatize A's published novel, and that the representation of B's drama was not a representation of A's drama. This case may be compared with _Reade_ v. _Lacy_ (1861).

In the "Little Lord Fauntleroy" case (1888) the person who dramatized the novel of another without his consent, an operation up to that time believed to be unassailable in law, was attacked successfully, by preventing him from using printed or written copies of the play, either to deposit with the lord chamberlain or as prompt-books. In every case where much of the original dialogue of the novel is taken, this stops the production of the dramatization.

In music, statutes of 1882 and 1888 have prevented the use of the provisions inflicting penalties for the performance of copyright songs for purposes of extortion, by allowing the court to inflict a penalty of one farthing and make the plaintiff pay the costs, if justice requires it. Authors reserving the right of public performance are required to print a notice to that effect on all copies of the music.

An important decision (which appears to be a grave injustice) on musical copyright is the case of _Boosey_ v. _Whight_ (1899; followed in other cases--see _Mabe_ v. _Conner_, 1909), in which it was held that the reproduction of copyright tunes on the perforated slips for an Aeolian or other mechanical instrument is not an infringement of copyright. In Germany it has been decided (_Lincke_ v. _Gramophone Co._) that the reproduction of copyright music on a gramophone is an infringement, and an injunction was granted. It has also been held in France that the production of copyright _words_ (but not music) was an infringement, while in the United States the Copyright Act of 1909 extended copyright control to mechanical reproductions, and gave the copyright proprietor power to exact royalties.

The copyright in music was subject to serious injury in England from the selling of pirated copies in the streets by hawkers; and in 1902 an act was passed enabling summary proceedings to be taken for having such copies seized and destroyed. But this act had various practical defects, which still left publishers largely at the mercy of the pirates. In 1905 the evil had become so serious that the chief music publishers announced their intention of not producing any further works till the law was altered; but the new Musical Copyright Bill of that year was obstructed and talked out in the House of Commons. In November 1905 an important prosecution, instituted by Messrs Chappell on behalf of the associated music-publishers and composers, was brought against a coterie of pirates. In the session of 1906 another attempt, this time successful, was made to pass a Musical Copyright Bill. This act (the Musical Copyright Act 1906) made it a criminal offence, punishable with fine and imprisonment, to reproduce or sell, or to possess plates for the production of, pirated copies of musical works. The act also gave power to a constable to arrest without warrant any person who in any public place exposes for sale or has in his possession for sale, or canvasses or personally advertises pirated copies, provided that the apparent owner of the copyright signs an authority requesting such arrest at his own risk. Also a court of summary jurisdiction may grant a search warrant, if there is reasonable ground for believing that an offence against the act is being committed on any premises.

Rights of foreigners.

13. The right of foreigners under the English copyright acts produced at one time an extraordinary conflict of judicial opinion. A foreigner who during residence in the British dominions should publish a work was admitted to have a copyright therein. The question was whether residence at the time of publication was necessary. In _Cocks_ v. _Purday_, the court of common pleas held that it was not. In _Boosey_ v. _Davidson_, the court of queen's bench, following the decision of the court of common pleas in _Cocks_ v. _Purday_, held that a foreign author might have copyright in works first published in England, although he was abroad at the time of publication. But the court of exchequer, in _Boosey_ v. _Purday_, refused to follow these decisions, holding that the legislature intended only to protect its own subjects,--whether subjects by birth or by residence. The question came before the House of Lords on appeal in the case of _Boosey_ v. _Jeffreys_ (1854), in which the court of exchequer had taken the same line. The judges having been consulted were found to be divided in opinion. Six of them held that a foreigner resident abroad might acquire copyright by publishing first in England. Four maintained the contrary. The views of the minority were affirmed by the House of Lords (Lord Chancellor Cranworth and Lords Brougham and St Leonards). The lord chancellor's opinion was founded upon "the general doctrine that a British senate would legislate for British subjects properly so called, or for such persons who might obtain that character for a time by being resident in this country, and therefore under allegiance to the crown, and under the protection of the laws of England." Lord Brougham said that

"The statute of Anne had been passed for the purpose of encouraging learned men, and with that view that act had given them the exclusive right in their publications for twenty-one years. This, however, was clear, they had no copyright at common law, for if they had there would have been no necessity for the passing of that statute. It could scarcely be said that the legislature had decided a century and a half since that act was to be passed to create a monopoly in literary works solely for the benefit of foreigners. In the present case he was clearly of opinion that the copyright did not exist, and therefore that foreign law should not prevail over British law where there was such diversity between the two."

Against the authority of this case, however, must be set the opinion of two great lord chancellors--Lord Cairns and Lord Westbury. In the case of _Routledge_ v. _Low_, L.R. 3 H. L. 100, 1868, Lord Cairns said,

"The aim of the legislature is to increase the common stock of the literature of the country; and if that stock can be increased by the publication for the first time here of a new and valuable work composed by an alien who has never been in the country, I see nothing in the wording of the act which prevents, nothing in the policy of the act which should prevent, and everything in the professed object of the act and in its wide and general provisions which should entitle such a person to the protection of the act, in return and compensation for the addition he has made to the literature of the country."

And Lord Westbury said, in the same case,

"The case of _Jeffreys_ v. _Boosey_ is a decision which is attached to and depends on the particular statute of which it was the exponent, and as that statute had been repealed and is now replaced by another act, with different enactments expressed in different language, the case of _Jeffreys_ v. _Boosey_ is not a binding authority in the exposition of this later statute. The act appears to have been dictated by a wise and liberal spirit, and in the same spirit it should be interpreted, adhering of course to the settled rules of legal construction. The preamble is, in my opinion, quite inconsistent with the conclusion that the protection given by the statute was intended to be confined to the works of British authors. The real condition of obtaining its advantages is the first publication by the author of his work in the United Kingdom. Nothing renders necessary his bodily presence here at the time, and I find it impossible to discover any reason why it should be required, or what it can add to the merit of the first publication. If the intrinsic merits of the reasoning on which, _Jeffreys_ v. _Boosey_ was decided be considered, I must frankly admit that it by no means commands my assent."

These conclusions might follow also from the Naturalization Act of 1870, which enacts that real and personal property of every description may be taken, acquired, held, and disposed of by an alien in the same manner in all respects as by a natural born British subject. At the present time the International Copyright Act has largely removed the question from the area of conflict.

The Bern Convention.

14. _International Copyright._--Books published in one country and circulated in another depend for their protection in the latter upon international copyright. Until 1886 international copyright in Great Britain rested on a series of orders in council, made under the authority of the International Copyright Act 1844 (superseding acts of 1820 and 1826), conferring on the authors of a particular foreign country the same rights in Great Britain as British authors, on condition of their registering their work in Great Britain within a year of first publication abroad. A condition of the granting of each order was that the sovereign should be satisfied that reciprocal protection was given in the country in question to British authors. As the result of conferences at Bern in 1885 and 1887, this system was simplified and made more general by the treaty known as "The Bern Convention," signed at Bern on the 5th of September 1887. The contracting parties were the British Empire, Belgium, France, Germany, Italy, Spain, Switzerland, Tunis and Hayti. Luxemburg, Monaco, Norway and Japan afterwards joined. Austria and Hungary have a separate convention with Great Britain, concluded on the 24th of April 1893. The notable absentees among European powers are Holland and Russia. So far as the United States is concerned, the matter is regulated by the American copyright acts, which are dealt with separately below.

The basis of the Bern convention was that authors of any of the countries of the Union, or the publishers of works first published in one of them, should enjoy in each of the other countries of the Union the same rights as the law of that country granted to native authors. The only conditions were that the work should comply with the necessary formalities, such as registration, in the country where it was first published, in which case it was exempt from all such formalities elsewhere; and that the protection required from any country should not exceed that given in the country of origin. The rights conferred included the sole right of making a translation of the work for ten years from its first publication. The convention was retrospective; that is to say, it applied to copyright works published before its coming into existence, each country being allowed to protect vested interests, or copies already made by others, as it should think best.

The rights of foreign authors in Great Britain rest on legislation giving effect to the Bern convention, namely, the International Copyright Act of 1886, and an order in council made under that act, dated 28th November 1887. These confer on the author or publisher of a work of literature or art first published in one of the countries which are parties to the convention, after compliance with the formalities necessary there, the same rights as if the work had been first published in the United Kingdom, provided that those rights are not greater than those enjoyed in the foreign country.

The rights of British authors in foreign countries rest in each country on the domestic legislation by which the particular country has given effect to its promise contained in the Bern convention, and are enforced by the courts of that country. The Bern convention was revised in minor details not affecting its broad principles by a conference meeting in 1896 in Paris, and Great Britain adopted the results of their labours by an order in council dated 7th March 1898. A further simplification in the international law of copyright was expected to result from the efforts of the international conference at Berlin in 1908, July 1910 being the latest date at which ratification by the states concerned might take place, but it cannot here be stated to what extent legislation may give effect to the decisions arrived at. So far as these decisions affect Great Britain, the greatest alterations of existing law would be in establishing throughout the Union protection of musical copyright, especially with regard to singing and talking machines, and also in the matter of newspaper copyright. The conference adopted a threefold division of newspaper matter: (1) serial stories, tales and all other work, literary, scientific and artistic, which is to have absolute protection; (2) all newspaper matter, except the foregoing and mere items of general news (_faits divers_), of which reproduction is to be permitted on acknowledgment of the source, unless such reproduction is expressly forbidden; (3) news of the day and simple facts, to which no protection is given. An endeavour was also made to have a uniform period throughout the Union for copyright of the author's life and 50 years.

15. _Colonial Copyright._--Under English copyright, books of the United Kingdom were formerly protected in the colonies by the Colonial Copyright Act of 1847, and copies of them printed or reprinted elsewhere could not be imported into the colonies. In 1876 a royal commission was appointed to consider the whole question of home, colonial and international copyright; and various recommendations were made. But the matter now rests on the English International Copyright Act 1886, which contains provisions designed to extend the benefit of the British copyright acts to works first produced in the colonies, while allowing each colony to legislate separately for works first produced within its own limits. The colonies at present are all included in the system of international copyright established by the Bern convention.

In 1875 an act was passed (re-enacted in 1886 in the revised Canadian statutes) to give effect to an act of the parliament of the Dominion of Canada respecting copyright. An order in council in 1868 had suspended the prohibition against the importation of foreign reprints of English books into Canada, and the parliament had passed a bill on the subject of copyright as to which doubts had arisen whether it was not repugnant to the Order in Council. It was also enacted that, after the bill came into operation, if an English copyright book became entitled to Canadian copyright, no Canadian reprints thereof should be imported into the United Kingdom, unless by the owner of the copyright. The following points in the Canadian act are worth noting:--Any person printing or publishing an unprinted manuscript without the consent of the author or legal proprietor shall be liable in damages (§ 3). Any person domiciled in Canada, or in any part of the British possessions, or being a citizen of any country having an international copyright treaty with the United Kingdom, who is the author of any book, map, &c., &c., shall have the sole right and liberty of printing, reprinting, publishing, &c., for the term of twenty-eight years. The work must be printed and published, or reprinted or republished in Canada, whether before or after its publication elsewhere: and the Canadian privilege is not to be continued after the copyright has ceased elsewhere. And "no immoral or licentious, or irreligious, or treasonable, or seditious literary, scientific or artistic work" shall be the subject of copyright (§ 4). A further period of fourteen years will be continued to the author or his widow and children. An "interim copyright" pending publication may be obtained by depositing in the office of the minister of agriculture (who keeps the register of copyrights) a copy of the title of the work; and works printed first in a series of articles in a periodical, but intended to be published as books, may have the benefit of this interim copyright. If a copyright work becomes out of print, the owner may be notified of the act through the minister of agriculture, who, if he does not apply a remedy, may license a new edition, subject to a royalty to the owner. Anonymous books may be entered in the name of the first publisher. In 1889 an amending Canadian act was passed, which led to a long controversy with the Mother Country,--the imperial government refusing to sanction it,--till in 1900 a compromise was effected, and a further act amending that of 1886 became law. It applies only to books copyright in Canada, and, subject to certain reservations, allows the minister of agriculture to prohibit the importation, without consent of the licensees, of any copies printed elsewhere of books published in the British dominions licensed by the owners to be reproduced in Canada.

The Australian states all have copyright laws modelled on the English. New Zealand provides for a term of 28 years, or the author's life. In Cape Colony the term for books is the author's life and 5 years, or a minimum of 30 years. The Indian act of 1847 is modelled on the English.

Foreign law.

16. _Other Countries._--The following notes give the general terms of the copyright law in other countries of importance. For details reference must be made to text-books. We only deal specifically with the history and particulars of American copyright.

_Austria_, by a law of 1895, gives copyright for thirty years after author's death.

_Belgium._--Copyright formerly perpetual, now limited to the life of the author, and 50 years thereafter.

_France._--Copyright in France is recognized in the most ample manner. Two distinct rights are secured by law--1st, the right of reproduction of literary works, musical compositions, and works of art; and 2nd, the right of representation of dramatic works and musical compositions. The period is for the life of the author and fifty years after his death. After the author's death the surviving consort has the usufructuary enjoyment of the rights which the author has not disposed of in his lifetime or by will, subject to reduction for the benefit of the author's protected heirs if any. The author may dispose of his rights in the most absolute manner in the forms and within the limits of the Code Napoléon. Piracy is a crime punishable by fine of not less than 100 nor more than 2000 francs; in the case of a seller from 25 to 500 francs. The pirated edition will be confiscated. Piracy also forms the ground for a civil action of damages to the amount of the injury sustained--the produce of the confiscation, if any, to go towards payment of the indemnity (Penal Code, Art. 425-429).

_Germany._--Period fixed in 1837 at ten years; but copyright for longer periods was granted for voluminous and costly works, and for the works of German poets. Among others the works of Schiller, Goethe, Wieland, &c., were protected for a period of twenty years from the date of the decree in each case. In 1845 the period was extended in all cases to the author's life and thirty years after. The present law rests on a Codifying Act of 1901, the term being the author's life and 30 years, or not less than 10 years in any case.

_Greece._--Copyright is for fifteen years from publication.

_Holland._--Fifty years, or author's life, whichever is longer.

_Hungary._--by a law of 1884, gives a copyright for the author's life and 50 years after.

_Italy._--Life of author, or 40 years from date of publication; and afterwards a further period of 40 years, subject to a right in others to reproduce on payment of 5% on each copy.

_Japan._--Author's life and 30 years after.

_Norway_, by a law of 1893, gives protection for author's life and 50 years after.

_Portugal._--Author's life and 50 years after.

_Russia._--Author's life and 50 years.

_Spain._--Author's life and 80 years thereafter.