1911 Encyclopædia Britannica/Copyright
COPYRIGHT, in law, the right, belonging exclusively to the author or his assignees, of multiplying for sale copies of an original work or composition, in literature or art. As a recognized form of property it is, compared with others, of recent origin, being in fact, in the use of literary works, mainly the result of the facility for multiplying copies created by the discovery of printing. It is with copyright in literary compositions that we are here primarily concerned, as it was established first, the analogous right as regards works of plastic art, &c., following in its train.
1. Whether copyright was recognized at all by the common law of England was long a much debated legal question. Blackstone thinks that “this species of property, being grounded on labour and invention, is more properly reducible to the head of occupancy than any other, since the right of occupancy itself is supposed by Mr Locke and many others to be founded on the personal labour of the occupant.” But he speaks doubtfully of its existence—merely mentioning the opposing views, “that on the one hand it hath been thought no other man can have a right to exhibit the author’s work without his consent, and that it is urged on the other hand that the right is of too subtle and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.” He notices that the Roman law adjudged that if one man wrote anything on the paper or parchment of another, the writing should belong to the owner of the blank materials, but as to any other property in the works of the understanding the law is silent, and he adds that “neither with us in England hath there been (till very lately) any final determination upon the rights of authors at the common law.” The common law undoubtedly gives a right to restrain the publication of unpublished compositions; but when a work is once published, its protection depends on the statutes regulating copyright. The leading case on the subject of unpublished works is Prince Albert v. Strange (1849), 2 De G. & Sm. 652. Copies of etchings by Queen Victoria and Prince Albert, which had been lithographed for private circulation, fell into the hands of the defendant, a London publisher, who proposed to exhibit them, and issued a catalogue entitled A Descriptive Catalogue of the Royal Victoria and Albert Gallery of Etchings. The court of chancery restrained the publication of the catalogue, holding that property in mechanical works, or works of art, does certainly subsist, and is invaded, before publication, not only by copying but by description or catalogue. This protection includes news (Exchange Telegraph Co. v. Central News,, 1897).
As a matter of principle, the nature of copyright itself, and the reasons why it should be recognized in law, have, as already stated, been the subject of bitter dispute. It was attacked as constituting a monopoly, and it has been Nature of right. argued that copyright should be looked upon as a doubtful exception to the general law regulating trade, and should be strictly limited in point of duration. On the other hand, it is claimed that copyright, being in the nature of personal property, should be perpetual. A man’s own work, in this view, is as much his as his house or his money, and should be protected by the state. Historically, and in legal definition, there would appear to be no doubt that copyright, as regulated by statute, is strictly a monopoly. The parliamentary protection of works of art for the period of fourteen years by an act of 1709 and later statutes appears, as Blackstone points out, to have been suggested by the exception in the Statute of Monopolies 1623. The object of that statute was to suppress the royal grants of exclusive right to trade in certain articles, and to reassert in relation to all such monopolies the common law of the land. Certain exceptions were made on grounds of public policy, and among others it was allowed that a royal patent of privilege might be granted for fourteen years “to any inventor of a new manufacture for the sole working or making of the same.” Copyright, like patent right, would be covered by the legal definition of a monopoly. It is a mere right to prevent other people from manufacturing certain articles. But objections to monopolies in general do not apply to this particular class of cases, in which the author of a new work in literature or art has the right of preventing others from manufacturing copies thereof and selling them to the public. The rights of persons licensed to sell spirits, to hold theatrical exhibitions, &c., are also of the nature of monopolies, and may be defended on special grounds of public policy. The monopoly of authors and inventors rests on the general sentiment underlying all civilized law, that a man should be protected in the enjoyment of the fruits of his own labour.
2. United Kingdom.—On the invention of printing (see Press Laws) the crown, or other sovereign powers, granted patents or licences with the object of restricting the right of multiplying copies of literary works, and this supervision Historical account. of publication still has certain historical results. A special kind of what amounts to perpetual copyright in various publications has for various reasons been recognized by the laws (1) in the crown, and (2) in the universities and colleges. The various copyright acts, referred to below, except from their provisions the copyrights vested in the two English and the four Scottish universities, Trinity College, Dublin, and the colleges of Eton, Westminster and Winchester. Crown copyrights are saved by the general principle which exempts crown rights from the operation of statutes unless they are expressly mentioned. Among the books in which the crown has claimed copyright are the English translation of the Bible, the Book of Common Prayer, statutes, orders of privy council, proclamations, almanacs, Lilly’s Latin Grammar, year books and law reports. The copyright in the Bible is rested by some on the king’s position as head of the church; Lord Lyndhurst rested it on his duties as the chief executive officer of the state charged with the publication of authorized manuals of religion. The right of printing the Bible and the Book of Common Prayer is vested in the king’s printer and the universities of Oxford and Cambridge. These copyrights do not extend to prohibit independent translations from the original. The obsolete copyright of the crown in Lilly’s Latin Grammar was founded on the fact of its having been drawn up at the king’s expense. The universities have a joint right (with the crown’s patentees) of printing acts of . Law reports were decided to be the property of the crown in the reign of Charles II.; by act of parliament they were forbidden to be published without licence from the chancellor and the chiefs of the three courts, and this form of licence remained in use after the act had expired. University and college copyrights were made perpetual by an act of George III., but only on condition of the books being printed at their printing presses and for their own benefit.
3. The first definite statute, or Copyright Act, in England was passed in 1709. The preamble states that printers, booksellers and other persons were frequently in the habit of printing, reprinting, and publishing “books and other writings without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families.” “For preventing, therefore, such practices for the future, and for the encouragement of learned men to compose and write useful books, it is enacted that the author of any book or books already printed, who hath not transferred to any other the copy or copies of such book or books in order to print or reprint the same, shall have the sole right and liberty of printing such book or books for the term of one-and-twenty years, and that the author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee, or assignees, shall have the sole liberty of printing and reprinting such book or books for the term of fourteen years, to commence from the day of first publishing the same, and no longer.” The penalty for offences against the act was declared to be the forfeiture of the illicit copies to the true proprietor, and the fine of one penny per sheet, half to the crown, and half to any person suing for the same. “After the expiration of the said term of fourteen years the sole right of printing or disposing of copies shall return to the authors thereof, if they are then living, or their representatives, for another term of fourteen years.” To secure the benefit of the act registration at Stationers’ Hall was necessary. In section 4 was contained the provision that if any person thought the price of a book “too high and unreasonable,” he might complain to the archbishop of Canterbury, the lord chancellor, the bishop of London, the chiefs of the three courts at Westminster, and the vice-chancellors of the two universities in England, and to the lord president, lord justice general, lord chief baron of the exchequer, and the rector of the college of Edinburgh in Scotland, who might fix a reasonable price. Nine copies of each book were to be provided for the royal library, the libraries of the universities of Oxford and Cambridge, the four Scottish, Sion College, and the faculty of advocates at Edinburgh.
It was believed for a long time that this statute had not interfered with the rights of authors at common law. Ownership of literary property at common law appears indeed to have been recognized in some earlier statutes. The Licensing Act 1662 prohibited the printing of any work without the consent of the owner on pain of forfeiture, &c. This act expired in 1679, and attempts to renew it were unsuccessful. The records of the Stationers’ Company show that the purchase and sale of copyrights had become an established usage, and the loss of the protection, incidentally afforded by the Licensing Act, was felt as a serious grievance, which ultimately led to the statute of 1709. That statute, as the judges in Millar v. Taylor (1769, 4 Burr. 2303) pointed out, speaks of the ownership of literary property as a known thing. Many cases are recorded in which the courts protected copyrights not falling within the periods laid down by the act. Thus in 1735 the master of the rolls restrained the printing of an edition of the Whole Duty of Man, published in 1657. In 1739 an injunction was granted by Lord Hardwicke against the publication of Paradise Lost, at the instance of persons claiming under an assignment from Milton in 1667. In the case of Millar v. Taylor the plaintiff, who had purchased the copyright of Thomson’s Seasons in 1729, claimed damages for an unlicensed publication thereof by the defendant in 1763. The jury found that before the statute it was usual to purchase from authors the perpetual copyright of their works. Three judges, among whom was Lord Mansfield, decided in favour of the common law right; one was of the contrary opinion. The majority thought that the act of 1709 was not intended to destroy copyright at common law, but merely to protect it more efficiently during the limited periods. Millar v. Taylor, however, was speedily overruled by the case of Donaldson v. Beckett in the House of Lords in 1774. The judges were called upon to state their opinions. A majority (seven to four) were of opinion that the author and his assigns had at common law the sole right of publication in perpetuity. A majority (six to five) were of opinion that this right had been taken away by the statute of 1709, and a term of years substituted for the perpetuity. The decision appears to have taken the trade by surprise. Many booksellers had purchased copyrights not protected by the statute, and they now petitioned parliament to be relieved from the consequences of the decision in Donaldson v. Beckett. A bill for this purpose actually passed the House of Commons, but Lord Camden’s influence succeeded in defeating it in the House of Lords. The result is that from that time on ordinary copyright has been recognized except in so far as it is sanctioned by statute. The university copyrights were, however, protected in perpetuity by an act passed in 1775.
By an act of 1801 the penalty for infringement of copyright was increased to threepence per sheet, in addition to the forfeiture of the book. The proprietor was to have an action on the case against any person in the United Kingdom, or British dominions in Europe, who should print, reprint, or import without the consent of the proprietor, first had in writing, signed in the presence of two or more credible witnesses, any book or books, or who knowing them to be printed, &c., without the proprietor’s consent should sell, publish, or expose them for sale; the proprietor to have his damages as assessed by the jury, and double costs of suit. A second period of fourteen years was confirmed to the author, should he still be alive at the end of the first. Further, it was forbidden to import into the United Kingdom for sale books first composed, written, or printed and published within the United Kingdom, and reprinted elsewhere. Another change was made by the act of 1814, which in substitution for the two periods of fourteen years gave to the author and his assignees copyright for the full term of twenty-eight years from the date of the first publication, “and also, if the author be living at the end of that period, for the residue of his natural life.”
4. The Copyright Act of 1842 repealed the previous acts on the same subject, and is the basis of the existing law. Its preamble stated its object to be to encourage the production of “literary matter of lasting benefit to the world.” The Act of
1842. principal clause is the following (§ 3): “That the copyright in every book which shall after the passing of this act be published in the lifetime of its author shall endure for the natural life of such author, and for the further term of seven years, commencing at the time of his death, and shall be the property of such author and his assignees; provided always that if the said term of seven years shall expire before the end of forty-two years from the first publication of such book the copyright shall in that case endure for such period of forty-two years; and that the copyright of every book which shall be published after the death of its author shall endure for the term of forty-two years from the first publication thereof, and shall be the property of the proprietor of the author’s manuscript from which such book shall be first published and his assigns.” The benefit of the enlarged period was extended to subsisting copyrights, unless they were the property of an assignee who had acquired them by purchase, in which case the period of copyright would be extended only if the author or his personal representative agreed with the proprietor to accept the benefit of the act. By section 5 the judicial committee of the privy council may license the republication of books which the proprietor of the copyright thereof refuses to publish after the death of the author. The sixth section provides for the delivery within certain times of copies of all books published after the passing of the act, and of all subsequent editions thereof, at the British Museum. And a copy of every book and its subsequent editions must be sent on demand to the following libraries: the Bodleian at Oxford, the public library at Cambridge, the library of the faculty of advocates in Edinburgh, and that of Trinity College, Dublin. Other libraries (the libraries of the four Scottish Universities, King’s Inns, Dublin, and Sion College) entitled to this privilege under the earlier acts had been deprived thereof by an act passed in 1836, and grants from the treasury, calculated on the annual average value of the books they had received, were ordered to be paid to them as compensation. A book of registry is ordered to be kept at Stationers’ Hall for the registration of copyrights, to be open to inspection on payment of one shilling for every entry which shall be searched for or inspected. And the officer of Stationers’ Hall shall give a certified copy of any entry when required, on payment of five shillings; and such certified copies shall be received in evidence in the courts as prima facie proof of proprietorship or assignment of copyright or licence as therein expressed, and, in the case of dramatic or musical pieces, of the right of representation or performance. False entries shall be punished as misdemeanours. The entry is to record the title of the book, the time of its publication, and the name and place of abode of the publisher and proprietor of copyright. Without making such entry no proprietor can bring an action for infringement of his copyright, but the entry is not otherwise to affect the copyright itself. Any person deeming himself aggrieved by an entry in the registry may complain to one of the superior courts, which will order it to be expunged or varied if necessary. A proprietor may bring an action on the case for infringement of his copyright, and the defendant in such an action must give notice of the objections to the plaintiff’s title on which he means to rely. No person except the proprietor of the copyright is allowed to import into the British dominions for sale or hire any book first composed or written or printed and published in the United Kingdom, and reprinted elsewhere, under penalty of forfeiture and a fine of £10. The proprietor of any encyclopaedia, review, magazine, periodical work, or work published in a series of books or parts, who shall have employed any person to compose the same, or any volumes, parts, essays, articles, or portions thereof, for publication on the terms that the copyright therein shall belong to such proprietor, shall enjoy the term of copyright granted by the act. But the proprietor may not publish separately any article or review without the author’s consent, nor may the author unless he has reserved the right of separate publication. Where neither party has reserved the right they may publish by agreement, but the author at the end of twenty-eight years may publish separately. Proprietors of periodical works shall be entitled to all the benefits of registration under the act, on entering in the registry the title, the date of first publication of the first volume or part, and the names of proprietor and publisher.
The interpretation clause of the act defines a book to be every volume, part, or division of a volume, pamphlet, sheet of letter-press, sheet of music, map, chart, or plan separately published.
5. During the last quarter of the 19th century the question of copyright became continually more prominent, and a considerable extension was given by judicial interpretation to the scope of the act of 1842. “Literary matter of lasting Recent extensions. benefit to the world” came to include every publication (not being illegal) which could be described as “literary” or “original,” the criterion as to the latter qualification being, in the last resort, whether (see Trade Auxiliary Co. v. Middlesborough Association, 1889, 40 Ch.D. 425) the author or compiler has really put his own brain-work into it.
6. The most marked and certain progress has been in the application of the law of copyright to the periodical press, in order to protect within reasonable limits the labour and expenditure of newspapers that obtain for the Newspapers. public the earliest news and arrange it for publication. It is settled law since 1881 (Walter v. Howe, 17 Ch.D. 708, overruling Cox v. Land & Water Journal Co., 1869), that a newspaper is a book within the meaning of the act, and can claim all rights that a book has under the Copyright Act. Thus, leading articles, special articles, and even news items are protected (Walter v. Steinkopff, 1892, 3 Ch. 489; Exchange Telegraph Co. v. Gregory and Co., 1896, 1 Q.B. 147). Current prices of stocks and shares, translations, the compilation of a directory, summaries of legal proceedings, and other similar literary work, so far as the literary form, the labour and money are concerned, are equally protected. In short, the test may now be broadly stated to be, whether labour of the brain and expenditure of money have been given for the production; whilst the old requirement of original matter is very broadly interpreted. The leading case on the subject is Walter v. Lane (decided in the House of Lords, 6th August 1900). The question there raised was, whether or not copyright applied under the act of 1842 in respect of verbatim reports of speeches. Four law lords, viz. Lord Chancellor Halsbury, Lord Davey, Lord James of Hereford and Lord Brampton upheld the claim to copyright in such cases, whilst Lord Robertson was the sole dissentient.
Apart from newspapers, protection has been extended to publications having no literary character; Messrs Maple’s furniture catalogue, and the Stock Exchange prices on the “tape” have been awarded the same protection as directories. The courts have declined to protect works which are mere copies of railway time-tables, or the “tips” of a sporting prophet, or mechanical devices with no independent literary matter, such as patterns for cutting ladies’ sleeves.
7. The publication of lectures without consent of the authors or their assignees is prohibited by the Lecture Copyright Act 1835, which reinforces the common law against publication of “unpublished” matter, and gives a copyright Lectures. for 28 years. This act, however, excepts from its provisions: (1) lectures of which notice has not been given two days before their delivery to two justices of the peace living within 5 m. to the place of delivery (an impracticable condition), and (2) lectures delivered in universities and other public institutions. Sermons by clergy of the established Church are believed to fall within this exception. The leading cases are Nicols v. Pitman, 1884, 26 Ch.D. 374, and Caird v. Sime, 1887, 12 A.C. 326.
8. The writer of private letters sent to another person may in general restrain their publication. It was urged in some of the cases that the sender had abandoned his property in the letter by the act of sending; but this was denied Private letters. by Lord Hardwicke (Pope v. Curl in 1741), who held that at most the receiver only might take some kind of joint property in the letter along with the author. Judge Story, in the American case of Folsom v. Marsh, 2 Story (Amer.) 100, states the law as follows: “The author of any letter or letters, and his representatives, whether they are literary letters or letters of business, possess the sole and exclusive copyright therein; and no person, neither those to whom they are addressed, nor other persons, have any right or authority to publish the same upon their own account or for their own benefit.” But there may be special occasions justifying such publication. See also the English case of Macmillan v. Dent (1905).
9. The question of what is an infringement of copyright has been the subject of much discussion. It was decided under the statute of 1709 that a repetition from memory was not a publication so as to be an infringement of Test of infringement. copyright. In the case of Reade v. Conquest, 1861, 9 C.B., the same view was taken. The defendant had dramatized the plaintiff’s novel It’s Never too Late to Mend, and the piece was performed at his theatre. This was held to be no breach of copyright; but the circulation of copies of a drama, so taken from a copyright novel, whether gratuitously or for sale, is not allowed. Then again it is often a difficult question to decide whether the alleged piratical copyright does more than make that fair use of the original author’s materials which the law permits. It is not every act of borrowing literary matter from another which is piracy, and the difficulty is to draw the line between what is fair and what is unfair. Lord Eldon put the question thus,—whether the second publication is a legitimate use of the other in the fair exercise of a mental operation deserving the character of an original work. Another test proposed is “whether you find on the part of the defendant an animus furandi—an intention to take for the purpose of saving himself labour.” No one, it has been said, has a right to take, whether with or without acknowledgment, a material and substantial portion of another’s work, his arguments, his illustrations, his authorities, for the purpose of or improving a rival publication. When the materials are open to all, an author may acquire copyright in his selection or arrangement of them. Several cases have arisen on this point between the publishers of rival directories. Here it has been held that the subsequent compiler is bound to do for himself what the original compiler had done. When the materials are thus in medio, as the phrase is, it is considered a fair test of piracy to examine whether the mistakes of both works are the same. If they are, piracy will be inferred. Translations stand to each other in the same relation as books constructed of materials in common. The animus furandi, mentioned above as a test of piracy, does not imply deliberate intention to steal; it may be quite compatible with ignorance even of the copyright work. Abridgments, moreover, of original works appear to be favoured by the courts—when the act of abridgment is itself an act of the understanding, “employed in carrying a large work into a smaller compass, and rendering it less expensive.” Lord Hatherley, however, in Tinsley v. Lacy, 1863, 1 H. & M. 747, incidentally expressed his disapproval of this feeling—holding that the courts had gone far enough in this direction, and that it was difficult to acquiesce in the reason sometimes given that the compiler of an abridgment is a benefactor to mankind by assisting in the diffusion of knowledge. A mere selection or compilation, so as to bring the materials into smaller space, will not be a bona fide abridgment; “there must be real substantial condensation, and intellectual labour, and judgment bestowed thereon” (Justice Story). A publication professing to be A Christmas Ghost Story, Reoriginated from the Original by Charles Dickens, Esq., and Analytically Condensed expressly for this Work, was found (Dickens v. Lee, 1844, 8 Jur. 183) to be an invasion of Charles Dickens’s copyright in the original.
10. There can be no copyright in any but innocent publications. Books of an immoral or irreligious tendency have been repeatedly decided to be incapable of being made the subject of copyright. In a case (Lawrence v. Smith, Injurious works.1 Jac. 471) before Lord Eldon in 1822, an injunction had been obtained against a pirated publication of the plaintiff’s Lectures on Physiology, Zoology, and the Natural History of Man, which the judge refused to continue, “recollecting that the immortality of the soul is one of the doctrines of the Scriptures, and considering that the law does not give protection to those who contradict the Scriptures.” The same judge refused in 1822 to restrain a piracy of Lord Byron’s Cain, and Don Juan was refused protection in 1823. Compare also Cowan v. Milbourn, 1867, L.R. 2 Ex. 230, in which a contract to let a room for lectures of an irreligious character was held not to be binding.
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 Titles of works. 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.
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 Drama
music.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.
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 Rights of foreigners. 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.
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 The Bern Convention.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.
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 Foreign law. 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.
Sweden and Denmark provide for a term of the author’s lifetime and 50 years after.
Switzerland.—Author’s life and 30 years after.
Turkey.—Author’s life, or 40 years, whichever is the longer.
17. United States.—American copyright is provided for by an act of March 1909, which replaced acts of July 1870 and March 1891, both of which had introduced important modifications in the original act of 1790. Under all American law. acts preceding that of 1891, copyright had been granted to “citizens or residents of the United States,” the term “resident” having been, in decisions prior to 1891, construed to mean a person domiciled in the United States with the intention of making there his permanent abode. The works of foreigners could thus be reproduced without authorization, and they were so reproduced in so far as there was prospect of financial gain. The leading publishers, however, had from the earliest times made terms with British authors, or with their representatives, the British publishers, for producing authorized American editions. But at most they were only able to secure by this means an advantage of a few weeks’ priority over the unauthorized editions, and the good-will of the conscientious buyer; so that if they paid the author any considerable sum, the price of the authorized editions had to be made so high that it was not easy to secure a remunerative sale. The unauthorized editions had the further advantage in competition, that for the purpose of being manufactured more promptly and more economically, they could be and often were issued in an abbreviated and garbled form, an injury which to not a few writers seemed more grievous than the lack of pecuniary profit. In Great Britain, during the first half of the 19th century, the copyright law had been so interpreted as to secure recognition of the rights of American authors for such works as were produced there not later than in any other country, so that authors like Washington Irving and Fenimore Cooper secured for a time satisfactory returns; but after 1850 the conditions became the same as in the United States. Unauthorized editions were published, and were often incomplete and garbled.
As from decade to decade the books produced on either side of the Atlantic, which possessed interest for readers of the other side, increased in quantity and in importance, the evil of these unrestricted piracies increased. The injury to British authors was greater only in proportion as the English books were more numerous. The pressure from Great Britain during the last half of the 19th century for international copyright was continuous; and in America it was recognized by authors, by representative publishers, and by the more intelligent people everywhere, that the existing conditions were of material disadvantage. The loss to American authors was direct; and the loss to legitimate American publishers was also clear, in that better returns could be secured by adequate payments for rights that could be protected by law than by “courtesy” payments for authorizations that carried no legal rights. An injury was being done to American literature; for, when authorized editions of American works had to compete against unauthorized and more cheaply produced editions of English works, the business incentive for literary production was seriously lessened. In fiction particularly, authors had to contend against a flood of cheaply produced editions of “appropriated” English books. Equally to be condemned were the ethics of a relation under which one class of property could be appropriated while other classes secured legal protection. On these several grounds efforts had long been made to secure international copyright. Between 1843 and 1886 no less than eleven international copyright bills were drafted, for the most part at the instance of the copyright associations or copyright leagues. They were one after the other killed in committee. In 1886 the twelfth international copyright bill was brought before the Senate by Senator Jonathan Chace of Rhode Island, and was referred to the committee on patents. In 1887 the American Publishers’ Copyright League (succeeding the earlier American Publishers’ Association) was organized, with William H. Appleton as president and G. H. Putnam as secretary. The executive committee of this league formed, with a similar committee of the Author’s Copyright League, a conference committee, under the direction of which the campaign for copyright was continued until the passage of the act of March 1891. Of the Authors’ Copyright League James Russell Lowell was the first president, being succeeded by Edmund Clarence Stedman. The secretary during the active work of the league was Robert U. Johnson. Under the initiative of the conference committee copyright leagues were organized in Boston, Chicago, St Louis, Cincinnati, Minneapolis, Denver, Colorado City and other places. The Chace Bill was introduced in the House in March 1888. In May 1890 this bill, with certain modifications, came before the House, and was there defeated. In March 1891 the same measure, with certain further modifications, secured a favourable vote in the House during the last hour of the last day of the session, was passed by the Senate, and was promptly signed by President Harrison. Thus, after a struggle extending over fifty-three years, the United States accepted the principle at all events of international copyright.
18. The act of 1891 was criticized in several respects: (1) A condition was that books or works of art must be “manufactured” in America; consideration not being given to books originally produced in some language other than English. (2) It required publication in the United States simultaneously with that in the country of origin. (3) The term of copyright (28 years, with an extension of 14 years to the author if alive, or to widow or children) was shorter than that accorded under the law of any other literature-producing country, excepting Greece. Minor amending acts were passed in 1893, 1895 and 1897, that of Feb. 19, 1897, establishing as the copyright department of the library of Congress a Bureau of Copyrights, the head of which bears the title of Register of Copyrights. Eventually, after hard Provisions of Act of 1909.work by the American Authors’ Copyright League and the Publishers’ Copyright League, and after sittings extending to a period of three years, a new bill submitted to Congress by the two Committees on Patents of the House of Representatives and the Senate was successfully passed. It came into force on the 1st of July 1909. Its provisions may be briefly summarized as follows:—
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 Term of copyright. 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, Definition of copyright.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 “Manu-
facture” clause.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 Exemption of text of foreign book.“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: ©, 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.
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 Interim protection.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 Infringement.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, Musical composi-
tions.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 Transfer and assignment of copyright.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 Importation of copyright works.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.
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.
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 Engravings.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.
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, Sculpture. 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.
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 Painting. 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.
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.Practical difficulties. 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.
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 ofPhoto-
graphs. 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 (Hanfstängel v. Empire Palace) was a curious one. The Empire music-hall in London produced some tableaux vivants, representing certain pictures, of which Messrs Hanfstängel 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 Hanfstängel brought actions for infringement (Hanfstängel 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.
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 Designs. 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.
- Such articles must be paid for, in order to vest copyright in the proprietor. The leading case about encyclopaedias is that of Lawrence and Bullen v. Aflalo, decided by the House of Lords in 1904.