copy of the book. No doubt this is primâ facie proof of publication, but the sale of a single copy does not necessarily imply publication, and it would be open to any one disputing the date of the publication to say that the sale was collusive, and that the book was not at that time, as it must be in order to constitute publication, offered to the public. It would be sufficient publication for the publisher to place copies, or even one copy of the book, in his window for sale. The record in his books should be sufficient evidence of the date if it is disputed. In a case1 under the statute of Anne it was held that publication must be by or on behalf of the proprietor, or at least with the view of conferring copyright upon him. The publication in that case was made by an oral assignee to whom the author had purported to convey the exclusive right of publication in the United Kingdom. It was held that the assignee had no copyright because there was no written assignment, and that the author did not acquire copyright because the publication was not on his behalf. The result seems to be that the copyright was lost. If the principle is sound, which is extremely doubtful, it might be applied to the case of first publication by a licensee, unless it could be implied from the contract between the licensor and licensee that the licensee was not acting. entirely on his own behalf, but also on behalf of his licensor to secure copyright. 2 First Publication within the British Dominions.-Under the Act of 5 & 6 Vict. c. 45, it was held essential that first publication should be within the United Kingdom; but since the International Act of 18863 first publication anywhere within the British dominions will equally secure copyright. If a book is published simultaneously within and without the dominions it is sufficient. Publication a day later than publication abroad would probably lose the copyright; but if on the same day, even although an hour or two later, it would be deemed simultaneous. If a serial story in a periodical is 1 Clementi v. Walker (1824), 2 Bar and Cres., 861. 2 Routledge v. Low (1868), L. R., 3 H. L., 100; Jefferys v. Boosey (1854), 4 H. L. C., 815; Boosey v. Purday (1849), 4 Ex., 145; Chappell v. Purday (1845), 14 M. and W., 303; Cocks v. Purday (1848), 5 C. B., 860. 3 49 & 50 Vict. c. 33, sec. 8 (1). 4 Cocks v. Purday (1848), 5 C. B., 860; Buxton v. James (1851), 5 De G. and S., 80. 3 being published simultaneously, say here and in the United States, some parts may have lost their copyright by too hasty publication in America, but this would not deprive the whole serial of copyright if the other parts were "first published " within the British dominions.1 The date on the titlepage of an American book has been held not to be conclusive evidence of the time of publication in the United States.2 It is quite immaterial where the manuscript is written; and probably equally immaterial where the book is printed. It has been suggested, however, that under 5 & 6 Vict. c. 45, printing within the United Kingdom was necessary, and that now since the "International Copyright Act, 1886," printing within the British dominions is a condition precedent to protection. I do not think the suggestion is of any weight. It is founded on two obiter dicta-one of Lord St. Leonards in Jefferys v. Boosey, and the other of Bayley, J., in Clementi v. Walker.5 6 If a book is first published outside the British dominions there will be no copyright in it except under the International Statutes. Section 19 of 7 & 8 Vict. has been held to apply to publication in all foreign countries, and not only to those with which an international convention is in existence; and it has been further held to apply to the works of a British subject as well as to those of a foreigner. 8 If a dramatic or musical work is first performed abroad before publication as a book, although that may destroy the performing right within the British dominions, it probably will not affect the author's right to acquire copyright by first publication here in "book" form. It may be said that "first published" in 7 & 8 Vict. c. 12, sec. 19, has been held to include "first performed." "10 That decision, 1 Reid v. Maxwell (1886), 2 T. L. R., 790. 2 Lover v. Davidson (1856), 1 C. B. (N.S.), 182. 3 Buxton v. James (1851), 5 De. G. and S., 80; as to author's nationality or residence, see p. 42. 4 (1854), 4 H. L. C., at p. 983. 6 7 & 8 Vict. c. 12, sec. 19. 5 (1824), 2 B. and C., 861, at p. 867. 7 See p. 193. 8 Boucicault v. Delafield (1863), 1 H. and M., 597; Boucicault v. Chatterton (1876), 5 Ch. D., 267. • Boucicault v. Delafield (1863), 1 H. and M., 597; Boucicault v. Chatterton (1876), 5 Ch. D., 267; Ex p. Dobson (1892), 12 N.Z. L. R., 171. 10 Boucicault v. Chatterton (1876), 5 Ch. D., 267. however, dealt only with a question of performing right. In Boosey v. Davidson1 there was first performance abroad, and it was held that copyright was obtained here by first publication; but there was no argument on section 19. SECTION III.-AUTHOR'S NATIONALITY. It must still be considered doubtful whether or not the author of a book must be a British subject, or at least resident within the British dominions at the time of publication. This point is the subject of a considerable body of case law under the statute of Anne; but there has been no definite and authoritative decision under the statute of Victoria. The question was first seriously argued in the case of D'Almaine v. Boosey, when it was decided in the Court of Exchequer that the work of a foreigner would be entitled to protection if first published in England by an English assignee. The next case was Bentley v. Foster, before Shadwell, V.C., who decided that the foreigner himself could acquire a copyright by first publication in this country. After that there is a series of confused and conflicting cases, terminating with the decision of Jefferys v. Boosey in the House of Lords. The plaintiff in that case was the English assignee of the unpublished work of a nonresident foreigner. The first publication was in England. The judges were consulted, and of these six were in favour of the plaintiff's right and four Lords, however, were unanimous against the plaintiff's right. They decided that the work of a non-resident foreigner could not acquire copyright in this country. 5 Lord Cranworth, L.C., said : against it. The House of "The statute (8 Anne) must be construed as referring to British authors only. Primâ facie the legislature of this country must be taken 1 (1849), 13 Q. B., 257. 2 D'Almaine v. Boosey (1835), 1 Y. and C. Ex., 288; see Willes, J., in Millar v. Taylor (1769), 4 Burr., at p. 2310; Delondre v. Shaw (1828), 2 Sim., 240. 3 (1839), 10 Sim., 329. 4 Chappell v. Purday (1845), 14 M. and W., 303; Cocks v. Purday (1848), 5 C. B., 860; Boosey v. Davidson (1849), 13 Q. B., 257; Boosey v. Purday (1849), 4 Ex., 145; Ollendorff v. Black (1850), 20 L. T., 165; Boosey v. Jefferys (1851), 6 Ex., 580; Buxton v. James (1851), 5 De G. and Sm., 80. 5 (1854), 4 H. L. C., 815. to make laws for its own subjects exclusively, and where, as in the statute now under consideration, an exclusive privilege is given to a particular class at the expense of the rest of her Majesty's subjects, the object of giving that privilege must be taken to have been national object and the privileged class to be confined to a portion of that community for the general advantage of which the enactment is made. When I say that the legislature must primâ facie be taken to legislate only for its own subjects, I must be taken to include under the word 'subjects' all persons who are within the Queen's dominions, and who thus owe to her a temporary allegiance. I do not doubt but that a foreigner resident here, and composing and publishing a book here, is an author within the meaning of the statute: he is within its words and spirit. I go further: I think that if a foreigner having composed but not having published a work abroad were to come to this country, and the week or day after his arrival were to print and publish it here, he would be within the protection of the statute." Jefferys v. Boosey1 then definitely decided that under the statute of Anne a foreigner, unless at the time of publication he was resident within the jurisdiction of the crown, could not be an author within the meaning of the Act, and therefore neither he nor his assigns before or after publication could acquire copyright. It would seem to follow that the construction of 5 & 6 Vict. c. 45 would lead to a similar decision. This, however, has been doubted in the House of Lords in the case of Routledge v. Low. The actual decision in that case went no further than holding that a foreign author who was resident for a few days in Canada expressly for the purpose of acquiring copyright while her book was published in London was an author within the Act, a proposition which had not been disputed in Jefferys v. Boosey.3 Their Lordships, however, discussed the wider issue whether even temporary residence was necessary. Lord Cairns, L.C., and Lord Westbury were of opinion that it was not. Lord Cairns, after pointing out that Jefferys v. Boosey was a decision under the Act of Anne, said :— 4 "It was impossible not to see that the ratio decidendi in that case proceeded mainly, if not exclusively, on the wording of the preamble of the statute of Anne, and on a consideration of the general character and 1 (1854), 4 H. L. C., 815. 2 (1868), L. R., 3 H. L., 100. scope of the legislation of Great Britain at that period. The present statute had repealed that Act, and professed to aim at affording greater encouragement to the production of literary works of lasting benefit to the world. And accepting this decision of the House as to the construction of the statute of Anne, it is, I think, impossible not to see that the present statute would be incompatible with a policy so narrow as that expressed in the statute of Anne."1 Lords Cranworth and Chelmsford agreed that temporary residence within the dominions was sufficient to give a foreigner the right to acquire copyright as a British author, and therefore concurred in the judgment of the House. They, however, differed strongly from the view that a non-resident foreigner could be an author within the Act. Lord Cranworth said: "I have no hesitation in concurring with my noble and learned friend in thinking that the decree below was right. I find it difficult to concur with him in the opinion that the present statute extends its protection to all foreigners wherever they may be resident without saying that the case of Jefferys v. Boosey 2 is not good law-a conclusion at which I should be very unwilling to come as to any case decided in this House, more especially as to one so elaborately considered as that of Jefferys v. Boosey.3 That case, as my noble friend has pointed out, was decided not on the construction of the Act of 5 & 6 Vict. c. 45, but on the statute of Queen Anne; but I own I do not as at present advised see any difference between the two statutes so far as relates to the subject of the residence of foreign authors." 5 4 Routledge v. Low is followed as to its actual decision in Low v. Ward; but as to the rights of a non-resident foreign author the law remains, as left by Routledge v. Low, truly in a most unsatisfactory state. It is difficult to escape from the conclusion, however willingly one would, that there is really no distinction between the application of the statute of Anne and that of Victoria, and that, therefore, a case arising on this point under the Act of Victoria is governed by Jefferys v. Boosey, a decision which, if erroneous, was not SO for want of deliberate research and consideration. The general opinion, 1 The Fine Arts Act, 1862, is expressly confined to the works of authors who are British subjects or resident within the Dominions of the Crown; 25 & 26 Vict. c. 68. 2 (1854), 4 H. L. C., 815. 4 (1868), L. R., 3 H. L., 100. 6 (1868), L. R., 3 H. L., 100. 3 Ibid. 5 (1868), L. R., 6 Eq., 415. 7 (1854), 4 H. L. C., 815. |