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cept under its provisions. This omission furnishes a strong presumption that alien friends, who may first publish in England, are understood to be entitled to the protection of the statute.

The second question, whether a British subject, who buys an unpublished work of a foreign author, can make it the subject of copyright in England, has likewise been answered in favor of the right. The English assignee of a foreign musical composer obtained an injunction to protect the work in England. It was held that the plaintiff, being a British subject, could acquire the copyright as well from a foreigner as from an Englishman. The title thus acquired, depends upon the common law right of the assignee of a manuscript.2

1 See Appendix, p. 57. 2 D'Almaine v. Boosey, 1 Y. & Col. 288. Before Lord Lyndhurst, in the Exchequer, in Equity, in 1835. In Chappel v. Purday, 4 Y. & Col. 485, 495, his lordship said, "Many points have been introduced into the argument which were not absolutely necessary in the view which I take of this case, but as I have been much pressed for my opinion upon them I cannot let them fall to the ground without observation. A question was made whether the statute of Anne raises any protection for foreigners, and that case of D'Almaine v. Boosey was cited to show that I had formed that opinion. Therefore I shall address a few words to that question. The statute of Anne was passed for the protection of British subjects. It does not in terms extend its protection to the publica

tion of foreigners. But take the whole question together, and see whether the same principles do not apply to both cases. I may be allowed, perhaps, to state in the presence of gentlemen who, no doubt attend to matters of literature, that when I came to the profession I took a great interest in the case of Millar v. Taylor, and other cases of that sort. In that case Lord Mansfield and two of the judges differed from Mr. Justice Yates, and I own I think that to the material parts of Mr. Justice Yates's argument Lord Mansfield made a successful reply, though unquestionably the arguments of Mr. Justice Yates were very ingenious. Lord Mansfield said, That the reasons for supporting the author's right before publication were equally applicable after publication;' and I think that was a successful reply. That case

6

But the question, whether a foreigner, who had first published abroad, could, before the act 1 and 2 Vict. c. 59, afterwards obtain a copyright in England, was one of greater difficulty. Whether the act of printing and publishing abroad, made the work at once publici juris, or whether there was an interval, in which, by due diligence, the alien author could secure a copyright in England, was a question which had been left undecided, before the passing of the International Copyright Act. It had, however, been held, that where an author first published abroad, and instead of using due diligence, forbore until some other person had published in England, fairly and without blame, but afterwards published in England himself, he could not insist upon his pri

was disposed of at common law. But the case of Donaldson v. Beckett, (4 Burr. 2408,) in which the same question was raised, went to the house of lords. In that case eight of the judges were of opinion, first, that the author had a right at common law to the exclusive publication of his work in the first instance. Lord Mansfield, the ninth judge, gave no opinion. The other judges were of a contrary opinion. Then the second question was, whether, admitting the author had originally a right at common law, he retained the right after publication. Mr. Justice Yates thought he had given it to the public, but eight of the judges were of opinion that he did retainit. That being the case, the law was then settled as regarded the common law right. But then the question was, whether the right of protection given by the common law

was not limited by the statute of Anne, and upon that the majority of the judges were of opinion that the statute had put an end to the right which had existed at common law, because it gave the protection for fourteen years, and no longer. Now the statute was made for the protection of British subjects; but the same reasons apply to protect a foreigner. We must presume that the foreign law would do the same for him, and, it does. A foreigner, therefore, having a copyright in his own country, might give the same right to a British subject. Therefore, it appears to me that a foreigner who is the author of a work unpublished in France, may communicate his right to a British subject, at least for the period prescribed by the statute of Anne, that is to say, fourteen years."

vilege, and, at a distance of time, stop a publication which had taken place in the interim, and treat the continuation of that publication as a piracy. So too, where the plaintiff had acquired an equitable title to a copyright, so far as related to Great Britain, of a work composed and published in France, and afterwards obtained a legal conveyance, but had in the interim sold several copies to the defendant, who republished it, other copies having been imported by other tradesmen, an injunction was refused. But it is now, by the 1 and 2 Vict. c. 59, § 14, declared, that the author of any book to be after the passing of the act first published out of her Majesty's dominions, or his assigns, shall have no copyright within her Majesty's dominions, otherwise than such (if any) as he may become entitled to under this act, namely, by treaty."

The object of the acts which protect engravings, (8 George II. c. 13; 7 George III. c. 38, and 17 George III. c. 57,) was to protect those works which were designed, engraved, etched, or worked in Great Britain, and not those which were designed, engraved, etched or worked abroad, and only published in

'Clementi v. Walker, 2 B. & C. 861. See also D'Almaine v. Boosey, 1 Y. & Col. 298. Guichard v. Mori, 9 Law J. 227.

2 Chappel v. Purday, 4 Y. & Col. 485, 495. Lord Lyndhurst, C. B. said, "This case is not exactly the same as Clementi v. Walker. The question is, whether a party, who, before the copyright had been actually parted with to him, (because

at that time there was no conveyance,) had permitted the books to be imported here, and sold without interference, is afterwards to be at liberty to come forward, and say, that no party shall do the like again? It is an important question, and I think it is sufficiently doubtful, to prevent my interference by injunction until it is decided."

See Appendix, p. 57.

Great Britain; and therefore prints engraved and struck off abroad and only published in England, are not entitled to protection.1

In theatrical and musical compositions the English law secures to the author a double copyright, and each of the rights may be assigned. A published play, or musical composition, when duly entered, is protected like other books; and whether published or unpublished, the author may enjoy the sole right of representation or performance, under the acts 3 Wm. IV. c. 15, and 5 and 6 Vict. c. 45, § 20.2

The first of these acts was passed 10th June, 1833, and it provided, among other things, that the author of any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment, printed and published within ten years before the passing of the act by the author thereof or his assignee, or which should thereafter be so printed and published, or the assignee of such author, should have as his own property the sole liberty of representing, or causing to be represented such production, for a certain term of years. Upon this provision, the question arose, whether the assignee of all the author's right, title, and interest in the copyright of a play, printed within ten years before the passing of the act, where the assignment was also made before the passing of the act, was to be deemed, in the sense of the statute, the assignee of the author, so as to be entitled, as

Page v. Townsend, 5 Simons, 395.

2 See Appendix, pp. 51, 75.

Ibid. p. 51.

against the author, to the sole right of representation, as well as to the copyright of publication. The court of king's bench held that such a party was the assignee of the author, in the sense of the statute, and by virtue of the act became entitled to the sole right of representation.1

To prevent this consequence, the 5 and 6 Vict. c. 45, § 22, enacts, that no assignment of the copyright of a book consisting of or containing a dramatic piece or musical composition, shall convey to the assignee the right of representation or performance, unless an entry of the assignment be made in the registry book, expressing the intention of the parties that such right should pass by the assignment."

By the 8 George II. c. 13, § 1, the property in historical and other prints was vested in engravers, who took from their own designs.3 By the 7 George III. c. 38, § 1, the benefit of the former act was extended to the prints of any portrait, conversation, landscape or architecture, map, chart or plan, or any other prints whatsoever, whether taken from the artist's own original designs, or from any picture, drawing, model, or sculpture, either ancient or modern.1

In prints, therefore, the designs of which are original, (with the exception of maps, charts, or plans,) the property can only be vested in the person who has made the design himself, whether he en2 See Appendix, Ibid. p. 8.

Cumberland v. Planché, 1 Ad.

& Ellis, 580.

P. 76.

Ibid. p. 15.

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