that purpose, and shall transmit the same in the proper manner to the Secretary of State, in order that it may be submitted to Her Majesty, and in case Her Majesty shall be of opinion that such Act or ordinance is sufficient for the purpose of securing to British authors reasonable protection within such possession, it shall be lawful for Her Majesty, if she think fit so to do, to express her royal approval of such Act or ordinance, and thereupon to issue an Order in Council declaring that so long as the provisions of such Act or ordinance continue in force within such colony the prohibitions contained in the aforesaid Acts, and hereinbefore recited, and any prohibitions contained in the said Acts or in any other Acts against the importing, selling, letting out to hire, exposing for sale or hire, or possessing foreign reprints of books first composed, written, printed, or published in the United Kingdom, and entitled to copyright therein, shall be suspended so far as regards such colony; and thereupon such Act or ordinance shall come into operation, except so far as may be otherwise provided therein, or as may be otherwise directed by such Order in Council, anything in the said last-recited Act or in any other Act to the contrary notwithstanding. The Orders in Council are to be published in the Gazette, and laid before Parliament, as well as the Colonial Acts or Ordinances. Sect. 2 enacts "that every such Order in Council shall, within one week after the issuing thereof, be published in the London Gazette, and that a copy thereof, and of every such Colonial Act or ordinance so approved as aforesaid by Her Majesty, shall be laid before both Houses of Parliament within six weeks after the issuing of such Order, if Parliament be then sitting, or if Parliament be not then sitting, then within six weeks after the opening of the next Session of Parliament." PART 1. CHAPTER XIII. the Act. The following colonies have brought themselves within Colonies within the provisions of this Act: New Brunswick, Nova Scotia, Prince Edward's Island, Bermuda, Bahamas, Barbadoes, Canada, St. Lucia, St. Vincent, British Guiana, Mauritius, Jamaica, Newfoundland, Grenada, St. Christopher, Antigua, Nevis, Cape of Good Hope, and Natal. By sect. 91 of the Act 30 Vict. c. 3, which joins Canada, Nova Scotia, and New Brunswick into one dominion, under the name of Canada, all matters coming under the head of copyrights in those three provinces are to be within the exclusive legislative authority of the Parliament of Canada, and not within that of the legislatures of the provinces. An Act of the Legislative Council of India was passed on India, PART I. CHAPTER XIII. the subject of copyright in the year 1847. After reciting in the preamble that doubts might exist whether copyright could be enforced by the common law, or by virtue of the principles of equity, in the territories subject to the government of the East India Company, and whether the Act of 5 & 6 Vict. c. 45, had made provision for the enforcement of the right against persons not being British subjects, it enacts that copyright in every book published in India in the author's lifetime, after the 28th August, 1833, shall endure for the natural life of the author, and seven years after, or for forty-two years, if the seven years sooner expire; and copyright in any book published after the death of the author shall endure for forty-two years, and shall be the property of the proprietor of the author's manuscript. (a) A book of registry is to be kept in the office of the Secretary to the Government of India for the Home Department, and to be open at all convenient times to the inspection of any person on payment of eight annas for every entry searched for or inspected; and certified copies are to be given on payment of two rupees, such copies to be received in evidence in all Courts, and to be primâ facie proof of proprietorship. (b) The wilful making of a false entry, or producing a false copy in evidence, was made a misdemeanor punishable with imprisonment to the extent of three years; (c) but this enactment has since been repealed. (d) In order to sue for an infringement of copyright an entry must be made in the registry book of the title of the book, the time of the first publication, the name and place of abode of the publisher and of the proprietor either of the whole or any part of the copyright, in a form given in a schedule to the Act. A sum of two rupees is to be paid on registering.(e) A Every registered proprietor may assign his interest, or a part of it, by making entry in the registry book of the assignment, and of the name and place of abode of the assignee, in a form given in a schedule to the Act. (f) like sum is to be paid on making an entry of assignment. (7) Any person deeming himself aggrieved by any entry in the registry book may apply to the supreme court or any judge of it; and the judge may make such order for expunging, varying, or confirming it as he may consider just, with or (a) Sect. 1. (b) Sect. 3. (c) Sect. 4. (e) Sect. 5. the schedule to (d) By Act xvii. of 1862. The form of entry is exactly the same as that given in 5 & 6 Vict. c. 45. Vide ante, p. 88. (f) Sect. 5. The form is the same as that given in the schedule to 5 & 6 Vict. c. 45, (g) Ib. without costs, and the secretary of the government shall carry out such order. (a) The enactment as to the copyright in encyclopædias, reviews, magazines, and other periodical works is in all respects the same as that contained in sect. 18 of 5 & 6 Vict. c. 45.(b) The proprietor is entitled to all the benefits of registration by making entry in the registry book of the title, the time of first publication of the first volume, number, or part, and the name and place of abode of the proprietor and publisher. (c) A special action on the case lies for infringements of copyright by printing or causing to be printed for sale or exportation without the proprietor's consent in writing, or by having in one's possession for sale or hire without such consent, any book so unlawfully printed. (d) The defendant in such an action, if it be tried in the superior courts, must give notice in writing of the objections to the plaintiff's title on which he means to rely, (e) and if it be tried in a local court, he must state the same matters in his answer. (f) In actions in the superior courts the defendant may plead the general issue and give the special matter in evidence. (g) All copies of registered books which have been unlawfully printed are to belong to the registered proprietor, who, after demand in writing, may sue for them in detinue or trover. (h) All proceedings under the Act for offences committed against it, must be commenced within twelve calendar months after the offence has been committed. (i) A provision is made against the possible suppression of books of importance to the public. Sect. 2 enacts that it shall be lawful for the Governor-General in Council, on complaint made to them that the proprietor of the copyright in any book published after the passing of the Act has, after the death of its author, refused to republish it, or allow the republication of it, and that by reason of such refusal, such book may be withheld from the public, to grant a licence to such complainant to publish the book in such manner and subject to such conditions as they may think fit, and it shall be lawful for such complainant to publish such book according to such licence. PART I. CHAPTER XIII. If a work of any sort is published in a colony, no copy- Works published right can be acquired in it under the Copyright Act of rel 5 & 6 Vict. c. 45. It stands in all respects on the same footing as any other foreign work; and the only rights (b) Vide ante, pp. 97, 98. (a) Sect. 6. (d) Sect. 7. (e) Sect. 8. (f) Sect. 9. (i) Sect. 16. K foreign works. PART L which can be acquired here in respect of it are those which CHAPTER XIII may be acquired by the author of any other work published abroad, under the International Copyright Acts. We have already seen (ante, p. 33) that the residence of the author in any British colony at the time of the publication of his work in the United Kingdom, is sufficient to entitle him to a copyright in it under 5 & 6 Vict. c. 45. Reciprocal secured, CHAPTER XIV. INTERNATIONAL COPYRIGHT. COPYRIGHT of an international character is altogether dependent on statutory enactments of the present reign. Since the decision of the House of Lords in Jeffreys v. Boosey, (a) it has been a settled rule of law that no foreigner can enjoy copyright in his published work unless he be present in England at the time of its publication here. The statutes which do not deal expressly with the literary property of aliens are interpreted as having reference solely to those who owe allegiance, natural or temporary, to the sovereign of these realms, and as conferring on them alone a copyright in their works. Such Acts, it has been said, have a municipal and territorial operation, and aliens, as such, are excluded from all the benefits secured by them; the copyright enjoyed by British authors being a monopoly conferred on them, at the expense of other British subjects, as an encouragement to the composition of literary works; and it would transcend the legitimate province of municipal law to confer a monopoly on foreigners at the expense of its own subjects. But a reciprocity of protection for their literary and dramatic productions may with advantage be secured to the authors of different countries; and this is the object aimed at by the International Copyright Acts. Three have at different times been passed, of which the first (1 & 2 Vict. c. 59), relating to books only, was repealed by the second (7 & 8 Vict. c. 12), the latter being amended and partly repealed by 15 Vict. c. 12. In order to secure the rights of home authors, it is enacted protection to be by the same statute which empowers Her Majesty by Order in Council to grant copyright to foreigners, "that no such Order in Council shall have any effect unless it shall be therein stated, as the ground for issuing the same, that due (a) 4 H. L. Cas. 977; see, however, the opinions of Lords Cairns and Westbury in Routledge v. Low, cited ante, p. 31, and the observations in pp. 31, 32, ante, PART I. protection has been secured by the foreign Power so named in such Order in Council for the benefit of parties interested CHAPTER XIV. in works first published in the dominions of Her Majesty similar to those comprised in such order." (a) Sect. 2 of 7 & 8 Vict. c. 12, gives a general power to Her General power Majesty to grant copyright to foreigners by such Order in to grant copyright to Council as has been named. It enacts "that it shall be foreigners. lawful for Her Majesty, by any Order of Her Majesty in Council, to direct that, as respects all or any particular class or classes of the following works, namely, books, prints, In what works. articles of sculpture, and other works of art, to be defined in such order, which shall after a future time, to be specified in such order, be first published in any foreign country to be named in such order, the authors, inventors, designers, engravers, and makers thereof respectively, their respective executors, administrators, and assigns, shall have the privilege of copyright therein during such period or respective Duration. periods as shall be defined in such order, not exceeding, however, as to any of the above-mentioned works, the term of copyright which authors, inventors, designers, engravers, and makers of the like works respectively first published in the United Kingdom may be then entitled to under the hereinbefore recited Acts respectively, or under any Acts which may hereafter be passed in that behalf." published in The Orders in Council are to be published in the London Orders to be Gazette, and to take effect from the date of such publica- Gazette and laid tion. (b) They are, further, to be laid before both Houses of before ParliaParliament within six weeks after issuing them if Parliament is then sitting, and if it is not sitting, then within six weeks after the commencement of the next session. (c) ment. ment and time Different periods of duration for foreign copyright, and Term of enjoydifferent times for registration may be specified by the for registration Order in Council for different countries and classes of works. may vary. By sect. 13 it is enacted that the respective terms to be specified by such Orders in Council respectively for the continuance of the privilege to be granted in respect of works to be first published in foreign countries may be different for works first published in different foreign countries, and for different classes of such works; and that the times to be prescribed for the entries to be made in the register book of the Stationers' Company, and for the deliveries of the books and other articles to the said officer of the Stationers' Company, as hereinbefore is mentioned, may be different for different foreign countries, and for different classes of books or other articles. (a) 7 & 8 Vict. c. 12, s. 14. (b) Sect. 15. (c) Sect. 16. |