Page:The copyright act, 1911, annotated.djvu/32

§1 (2)
EXISTING LAW

open to doubt. There are several dicta to be found in the earlier decisions to the effect that a translation is not an infringement under the Copyright Act, 1842^[1]. These were followed by two decisions in India, where it was held that a translation into an Indian language of an English school book was not an infringement of the copyright^[2]. The principle upon which these were decided seems to depend on the theory that if the ipsissima verba are not extracted from a literary work, the whole selection and arrangement of subject-matter can be taken with impunity. This theory is quite contrary to recent English decisions, and it is conceived that if the Indian decisions had been appealed against they would have been reversed by the Judicial Committee of the Privy Council^[3].

With regard to works protected under the International Copyright Acts, the foreign author receives a definite but conditional translating right. The Berne Convention, Article V., demanded an exclusive translating right for ten years. The International Copyright Act, 1886, was, however, more generous to the foreign author, and gave him an exclusive translating right for the full term of the copyright provided the author did, within ten years after the first production of his work, cause a translation to be produced in the English language^[4]. If a full and substantial translation^[5] is not produced within the prescribed period, the work becomes free as far as the English language is concerned, and can be reprinted or performed in English either in whole or in part^[6]. The Act of Paris, 1896, Article I. 3, demanded similar protection, that is, full translating right conditional upon the exercise of the right within ten years. This, however, entailed no change in the English law, as the international demand had already been satisfied by the Act of 1886.

"In the case of a dramatic work to convert it into a novel or other non-dramatic work."The exclusive right to turn a dramatic work into a non-dramatic work is probably vested in the author under existing law. It has never actually been decided that it would be an infringement of the copyright in a play to take the plot and characters and principal situations and write a novel based thereon. It has been said that so long as there is no copying of the words there is no infringement. Probably, however, it is an infringement,

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1. Burnett v. Chetwood (1720), 2 Meriv. 441; Millar v. Taylor (1769), 4 Burr. 2348; Prince Albert v. Strange (1849), 2 De G. & M. 693; and see Wyatt v. Barnard (1814), 3 V. & B. 77; Murray v. Bogue (1852), 1 Drew. 353.
2. Munshi v. Mirza (1890), Ind. L. R. 14 Bomb. 586; Macmillan v. Shamsul (1894), Ind. L. R. 19 Bomb. 557.
3. Moffat and Paige v. Gill & Sons (1902), 86 L. T. 465.
4. Int. Cop. Act, 1886, s. 5.
5. Wood v. Chart (1870), L. R. 10 Eq. 193; Lauri v. Renad, [1892] 3 Ch. 402, 414.
6. Gandillot v. Edwardes (1908), The Times, June 3, Cop. Cas. 1905–10, p. 169.