Copyright

COPYRIGHT, the right now secured by the law of every civilized country to authors of literary, musical and artistic works, to prevent any reproduction of their works without their consent. The growth of the law of copyright protection has closely followed the development of mechanical means of reproduction. Literary copyright was protected only after the invention of printing; artistic copyright was only established with the expansion in the use of engravings and lithographs. It was only on July 1, 1912, that the law of copyright in England was given a general form by the statute which, passed in 1911 as a result of two years' investi gation by the international copyright committee, came into force on that date.

The history of the law of copyright in England is one of a num ber of statutes passed from time to time to deal with abuses as they arose. It is still necessary in the case of works created before 1912 to ascertain whether they were protected under the pre-exist ing law, because by s. 24 of the act of 1911 copyright protection is given to persons enjoying copyright before its commencement. Some account of these statutes will theref ore be useful.

Literary copyright was protected by the Literary Copyright Act 1842, which provided that the copyright in every book pub lished in the life of the author should endure for the life of the author and for seven years after his death or for 42 years, if longer, and should be the property of the author and his assignees, and that the copyright in works published after the death of the author should endure for 42 years from publication and should be the property of the proprietor of the author's manuscript and his assigns. Provision was made for registration at Stationers' Hall and no action for infringement could be brought without prior registration. By s. 18 it was provided that the proprietor of every encyclopaedia, review, magazine, periodical or work published in a series of books or parts, who should have employed any person to compose any part thereof on the terms that the copyright should belong to the proprietor, should enjoy the copyright therein. "Book" was defined as including volume, part or division of a volume, pamphlet, sheet of letter press, sheet of music, map, chart or plan separately published. Engravings were protected by three acts, the Engraving Copyright Acts of 1734 and 1736 and the Prints Copyright Act 1777, and were entitled to copyright for 28 years from publication. Registration was not required but the name of the proprietor and the date of first publication had to be engraved on the plate and printed on each print. Copyright was given to sculptors by an act of 1814, provided that the name of the author and date of issue to the public appeared on each work. The period of copyright under this act was 14 years with a re newed period of 14 years if the author was alive at the end of the first period. The last class to be protected were artists and photog raphers whose protection was first secured by the Fine Arts Copy right Act 1862. This act gave protection for the life of the author and seven years after his death but such protection was lost if the author in selling the original failed to obtain a written reservation of copyright from the purchaser, and registration was required be fore any action could be brought. The sole right to perform dramatic pieces was secured by the Dramatic Copyright Act of 1833 and to play musical works by the act of 1842, but the making of gramophone records of musical works was held, in Boosey v. Whight, 19oo, Ch. 122, not to infringe the copyright therein on the ground that these were not "books" within the meaning of the act of 1842. Unpublished works had no statutory protection but a common law copyright in them was recognized.

The Copyright Act of 1911 repealed the whole of the earlier copyright statutes, except one section of the Fine Arts Copy right Act 1862 which penalized fraudulent alterations of artists' works and two short penal acts dealing with the sale of pirated copies of musical works. It provided that no person should be entitled to copyright otherwise than under and in accordance with its provisions, so that the common law copyright previously recog nized in unpublished works is no longer in force. Copyright in published and unpublished works is in fact assimilated except in the case of the provisions limiting the area of protection and in respect of the term of protection. It is also important to observe that registration at Stationers' Hall is no longer necessary, so that copyright is now secured to the author by the act of creation and no formality of any kind is required.

The Subject Matter of Copyright.—Copyright, as is pro vided by s. of the act of 19ii, subsists in every original literary, dramatic, musical and artistic work, and these expressions are ex tended by the definition section of the act. "Literary work" in cludes maps, charts, plans, tables and compilations. It has been decided that the word "literary" does not connote style or literary finish but is used merely to indicate written or printed matter. Thus there may be copyright in a dictionary or in a mere list of meaningless words forming a telegraphic code or in a railway time-table. The only limit would appear to be that the work in which copyright is claimed must be sufficiently extensive to have demanded some skill in composition. Copyright protection is given not to ideas but to literary forms, and information will not be pro tected unless it is expressed in an original form. A list of horses published by a racing tipster failed to obtain copyright protection for this reason and the same difficulty arises in the case of a chemi cal formula. In such cases the real objection is not so much that there is no literary form but that the literary form, as distinct from the idea which it represents, is not original. The same diffi culty arises in the case of compilations such as directories, diction aries and selections of poems. The matter contained in such works is largely unoriginal but that which is protected is the compiler's arrangement. In a recent case it was held that the list of broad cast programmes published by the British Broadcasting company was the subject matter of copyright although in effect they con sisted only of a list of titles and names not separately the subject of copyright. So long as the work as a whole represents original effort it will be protected although the component parts are taken from a non-copyright source. On the other hand, mere hack work such as the cutting down of a standard work into a form suitable for schools has failed to receive protection. But though originality is required for all protected works, in the case of artistic works a further difficulty arises. Artistic works are defined as including works of painting, drawing, sculpture and artistic craftsmanship and architectural works of art and engravings and photographs. But an engraving or photograph may be made of a picture and it has been decided that such a work is original though depicting the same object or scene. The protection of architectural works of art in the 1911 act is new and it means that not only can the copy ing of architectural plans be restrained but that it is an infringe ment to reproduce a building without the consent of the designer. The definition of dramatic work includes any piece for recitation or choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or other wise. This definition excludes mere "gag" which has no fixed form but it would include, for example, the movements of a musical comedy chorus which are often represented for the producer by a rough sketch or by symbols. The wide definition of artistic works in the act included of necessity designs, which were already pro tected by the Patents and Designs, Act 1907 but for a shorter period and subject to registration. It was therefore provided by s. 22 of the Copyright Act that designs falling within the Designs Act and intended to be reproduced in large numbers by mechanical means should not receive copyright protection. This provision has given rise to a great deal of difficulty because, although the inten tion obviously was to exclude only purely utilitarian devices, the definition in the Designs Act is wide enough to include purely artistic works such as sculptures or paintings. If reproductions of these are intended to be sold in any quantity, therefore, and this intention is to be ascertained at the time of making the original, such works would appear only to enjoy the lesser protection given by the Designs Act and to require registration.

The cinematograph was for the first time recognized by the act of 191r. In the first place there is included in the means by which the copyright in literary, dramatic or musical works may be in fringed "the making of any cinematograph films" thereof. In the second place it is made an infringement of copyright to produce "any visual representation of any dramatic action in a work by means of any mechanical instrument." In the third place copy right is defined as subsisting in "any cinematographic production where the arrangement or acting form, or the combination of in cidents represented give the work an original character." In addi tion a cinematograph film is of course a series of photographs each of which is protected as an artistic work.

The making of any contrivance by means of which a literary. dramatic or musical work may be mechanically performed is an infringement of the copyright therein. The contrivances when made are also protected. Complicated provisions are, however, made for the compulsory licensing of the making of gramophone records of musical works. Once the owner of copyright has allowed anyone to make records of a particular work he must per mit any other person to make such records in return for a statu tory royalty. The procedure for the collection of these royalties is that the person intending to make records gives to the owner notice of his intention to make records and particulars of the price at which he proposes to sell these. The owner then has to supply the manufacturer with adhesive stamps of the required value. If the owner of the copyright fails to send the royalties or cannot be found, the records may be sold unstamped and the royalty be comes a debt due to the owner, but in any other case the sale of such records unstamped is an infringement of copyright. The rate of the royalty prescribed by the act of 19ii is 21% of the retail selling price of each contrivance in case of works published before the commencement of the act and 5% thereof in the case of other works, and it is also provided that a minimum of one halfpenny shall be payable in respect of each se.parate musical work on every contrivance. The act provides for alteration of these rates by the Board of Trade; an enquiry was held in April 1928 with a view to the increase of these rates, and the tribunal recommended an increase of the 5% rate to 61% and of the minimum royalty from one halfpenny to three farthings.

Rights Under the Act.

The basic right of the owner of copy right is that he has "the sole right to produce or reproduce his work or any substantial part thereof in any material form whatso ever." He is also, however, given by the act of i9ir certain other important rights of which the most important is the sole right to perform his work in public. The question of what amounts to publicity for the purposes of this act has been recently discussed by the court of appeal in the case of Harms (Incorporated) v. Martans Club Ltd., 1927, Ch. 526, in which it was held that a performance at a private dance club in the presence of some 200 members and guests was an infringement of copyright. While de clining to lay down any definition, the court indicated that mat ters which had to be considered were the profit made by the per former and the probable injury to the owner of the right and, if there were no charge for entry, whether the class of public ad mitted were such as would pay at a theatre to hear the same per formance. It is also an infringement of copyright for a person for his private profit to permit a theatre or other place of entertain ment to be used for the performance in public of a work without the consent of the owner of the copyright. It was for some time uncertain whether "broadcasting" was an infringement of copy right, since it was difficult to bring the operation within the defini tion in the act of "an acoustic representation of a work in public by means of a mechanical instrument." Liability on this point was, however, admitted by the British Broadcasting company in a recent case.

Other rights given to the owner of copyright are the sole right of translating his work, and the sole right of converting novels into dramas and dramas into novels. Section 2 (2) of the act pro vides for the liability of persons dealing with articles which they know to infringe copyright by selling such works or by distributing or exhibiting them by way of trade. It is also an infringement of copyright to import for sale into the country any work which to the importer's knowledge would infringe copyright if made there. For example a copy of an English novel may have been printed in France under a licence from the owner confined to France. The making of this copy, by the person who made it, in England would have been unlawful and if the importer knows of this he infringes the owner's copyright by importing it. It is obvious, however, that proof of such knowledge is a matter of difficulty. An addi tional protection to copyright owners is the provision in s. 7 that any copy of a work made or imported in infringement of the owner's copyright is the property of the owner. The owner can therefore bring an action for detinue or conversion against anyone in possession of such copies irrespective of his knowledge of the original unlawfulness of the manufacture, though in the case of an imported work, as has already been pointed out, the importing itself is not an infringement of the owner's copyright unless the importer knew that the work would have infringed it if made here, so that in the case of such works the owner has to establish in any event the guilty knowledge of the importer.

The Owner of the Right.

Section 5 (1) of the act of 191 1 provides that subject to the provisions of the act the author of a work shall be the first owner of the copyright therein. "Author" is nowhere defined. It is clear however that, where the idea of a work is suggested by one person and the work is executed by an other, the latter is the author for purposes of copyright. Thus a person who suggests the plot of a play (Tate v. Thomas, 1921, I Ch. 5o3) , the inventor of a design for voting cards (Kenrick v. Lawrence, 189o, 25 Q.B.D. 99) and, under the old law, the poser of a photograph (Nottage v. Jackson, 1883, 11 Q.B.D. 627) have been held not to be authors. Section 21 of the 1911 act provides that the owner of the negative of a photograph at the time when such negative was made shall be deemed to be the author of the work. In two cases, however, the author of a work is not the first owner. In the case of an engraving, photograph or portrait, where the original has been ordered by some person and made for valuable consideration in pursuance of the order, then, in the absence of agreement to the contrary, the person ordering is the first owner. The agreement to the contrary may apparently be oral or implied from the conduct of the parties, so that in the vaguely defined relations which usually exist between canvassing photographers and their sitters it is extremely difficult to deter mine to whom the copyright belongs. The other provision is that a person employing the author of a work under a contract of service or apprenticeship shall, in the absence of agreement to the contrary, be the first owner of the copyright therein. The employ ment must be under a "contract of service" which implies a re lationship of master and servant and does not include the case of isolated contributions for payment such as were included in s. 18 of the Literary Copyright Act 1842 referred to above. The first owner however can assign his right or may grant interests therein by way of licence provided that he does so in writing signed by himself or his authorized agent. He may assign any separate part of the rights given him by the act and he may assign his rights for a limited area or for a limited period of time and the assignee is in the position of an owner in respect of the right assigned. If however the assignment is made before the work is created, any action must be brought in the name of the assignor. The position of a licensee is more doubtful. If the licence is in writing and is ex pressed as a grant of an interest by way of licence there is some authority for the view that the licensee can in his own name bring actions against infringers of the right licence. On the other hand the owner of copyright may by words or conduct be held to have consented to reproductions of his work and if value be given for such consent it has been held to amount to an irrevocable license which, though it does not enable the licensee to sue infringers, affords him a good defence against the owner. There are certain provisions for compulsory licences. At the expiration of 25 years from the death of the author of a published work or from the publication of a work unpublished at the author's death copies may be reproduced and sold upon payment of a compulsory Io% royalty collected by stamps in a manner similar to that already explained in the case of gramophone records. The judicial com mittee of the privy council may also at any time after the author's death order the owner of the copyright of a literary, dramatic or musical work which has already been published or performed in public to grant licences for the reproduction in or performance of the work in such terms as they think fit.

Apart from the provisions already discussed there are two sets of special provisions as to the ownership of copyright. By s. 18 the copyright in any work prepared or published under the direction or control of the sovereign or any Government department is vested in the sovereign and is to endure for a period of so years from publication. The Government however does not insist on its right in the case of acts of parliament and parliamentary reports. Section 33 preserves the old perpetual copyright by an act of 1775 to books bequeathed in trust for the Universities of Oxford and Cambridge, the four universities of Scotland or the colleges of Eton, Westminster or Winchester and there printed for their sole benefit. The university libraries also enjoy the right under s. 15 of demanding a copy of every book published and a copy of every book must be sent without demand to the British Museum. It should be observed however that non-compliance with these pro visions does not affect the copyright in the book but renders the publisher liable to a fine of is and the value of the book.

Duration of Copyright Protection.

As has been shown al ready, prior to the commencement of the Copyright Act of 1911, the period during which an author enjoyed copyright varied for different classes of work. Under the act of 1911 however, with certain limited exceptions, the copyright in all works endures for the life of the author and so years after his death. In the case of works of joint authorship, which are defined as works produced by the collaboration of two or more authors in which the contribu tion of one author is not distinct from the contribution of the other author, copyright subsists during the life of the author who dies first and so years after his death, or during the life of the author who dies last, whichever period is the longer. Works unpublished at an author's death enjoy copyright until publication and for so years thereafter, and publication means the issue of copies of the work to the public but does not include performance or exhibition in public. The chief exceptions to the general rules above stated are in regard to mechanical instruments, photographs and Gov ernment publications. By s. 19 (1) of the act copyright in gramo phone records and similar contrivances subsists for 5o years from the making of the original plate. By s. 21 the term of copyright in photographs is to be 5o years from the making of the original negative. In the Case of Government publications the term of copyright, as has been stated above, is so years from publication.

Infringement of Copyright.

Infringement of copyright is defined in the act of 1911 as the doing of anything the sole right to do which is conferred by the act on the owner of copyright. It is rather surprising that the act does not directly state the proposi tion which has always been put forward as the proper ground for distinguishing copyright from a monopoly, namely that it is no infringement of copyright to reproduce the same result provided that resort is not had to the author's original. The point is of considerable importance in the case of compilations, of com mercial designs and of photographs since it is quite possible for works of this class to be practically identical although the author of neither work has seen the other. It has however always been assumed that the real basis of an action for infringement of copy right is culpable wrong-doing on the part of the defendant— literary theft—and there is no doubt that now, as under the old law, it is essential for the owner of copyright to prove that a de fendant has either copied his work or copied something which was itself a copy. The inventor of a particular form of words or the artist who composes a picture of a particular scene or arrange ment of figures has no monopoly of his inventions, and if, by chance, another author or artist hits upon the same words or the same scene he has committed no wrong either in fact or in law. Resemblance, therefore, though it may often lead to the inevitable conclusion that the defendant has in fact seen the plaintiff's work and so be excellent evidence that copying has occurred, is not in itself sufficient to substantiate a claim for infringement. Re semblance again may not amount to infringement of copyright because the resemblance, though due to the second author having seen the original, is so remote as not to injure the first author. The act of 1911 is not clear in regard to this matter either. In the early days of copyright protection, when this was extended only to "books" as such, attempts were made to evade the law by express ing the contents of books in other words. It was soon established that any "colourable imitation" of a book could be proceeded against and the doctrine was in due course extended to infringe ment of other copyright works. The act of 1911 however does not state this in any definite form. The expression "colourable imita tion" is only employed in the definition of "infringing copies" and this phrase is not used in that part of the act which defines in fringement. In fact however one of the most difficult questions which the courts have to determine is whether a defendant has so far copied the plaintiff's work that he can be said to have created a colourable imitation of it, or whether he has taken the idea only and clothed it in a new literary or artistic form. This prob lem arises forcibly in the case of plays which are alleged to in fringe the copyright in a novel and in the case of cinematograph films. In such cases the form of artistic expression being different it is unlikely that much literal copying will be discoverable. The result of decisions on the subject appears to be that while the mere taking of a plot is not sufficient in itself to constitute an infringe ment, yet this, coupled with a close resemblance of situations and incidents, even without the taking of actual words or phrases, will be enough to give rise to a cause of action. In dealing with the question of colourable imitations in relation to artistic works the test has been suggested :—"A copy is that which comes so near the original as to suggest that original to the mind of every person see ing it." Similar principles have to be considered when dealing with burlesques which may constitute infringements if they are really representations of the original work in an altered form.

Another matter which has to be considered in relation to in fringements is whether enough of the first work has been taken to create a wrong. Of course in dealing with composite works such as catalogues or magazines or cinematograph films of several reels it may be possible to split up the offending work into infringing and innocent matter and limit the injunction accordingly. On the other hand a work which it is not practicable to split up may con tain a small amount of admittedly copyright matter but so small a quantity that it would be a hardship upon the defendant to re strain the circulation of the work. Certain specific cases where it is permissible to use copyright matter are dealt with below but besides this the act provides that it is only an infringement to take "a substantial part" of the original work. Cases dealing with the earlier acts which, though they did not use this exact phrase, were held to have implied it, have decided that "substantial" does not refer to quantity alone but also to the importance of the part taken in relation to the whole; a few bars out of a long piece of music may contain the essential melody or a few lines may hold the real beauty of a poem and the taking of these bars or lines would certainly be prohibited.

A matter of difficulty always is to decide how far copyright can be infringed by reproductions in a different form of art. The in fringement of literary and dramatic works by their respective re production as plays or novels has already been mentioned as has also the question of mechanical reproductions. It had been con sidered before the act of 1911 that a statue would not infringe the copyright in a picture. The "Living Picture" cases had de cided that tableaux vivants did not infringe the copyright in the picture which they purported to represent and it was thought that this doctrine would apply also in the case of sculptures. Under the act of 191I however Coleridge J. in Bradbury Agnew v. Day 32 T.L.R. 349 indicated that the law as to tableaux vivants is now changed and it would seem that under the wide words of the act sculptures and pictures may be infringements of one another respectively.

A further right given to the author by s. i (2) is that of "authorizing" any of the acts in respect of which he is given the sole right by the act. For some time it was thought that this pro vision added nothing. No doubt it made the authorizing of a re production of a work without the author's consent an infringe ment of copyright, but apart from express provision the master whose servant commits a tort is liable and it has been indicated in the case of the Performing Right Society v. Ciryl Syndicate, 1924, I K.B. i that there was nothing in this provision to make a man liable for the infringements of copyright by persons employed as independent contractors. The court of appeal has however recently held in Falcon v. Famous Players' Film Co., 1926, 2 K.B. 474 that the phrase "to authorize" does add something to the or dinary law of responsibility for servants and that anyone who "sanctions, approves or countenances" an infringement is liable for it.

Permitted Reproductions.

Section 2 (I) of the Copyright Act expressly provides that certain acts shall not constitute an infringement of copyright. There is in the first place a general provision that any fair dealing with a work for the purposes of private study, research, criticism, review or newspaper summary shall be allowed. Obviously "fair dealing" is difficult to define but it would seem that the question of whether the two works corn pete is of importance in judging of the fairness of the reproduc tion. Liberties of a similar nature are :—the publication of short passages from published literary works in collections for the use of schools; the publication in a newspaper of a report of a lecture, unless such report is prohibited by a conspicuous notice main tained during the lecture near the entrance of the building where the lecture is given; • and the publication of reports of political speeches in a newspaper. Authors of artistic works in respect of which they do not own the copyright are entitled to use again sketches and moulds prepared by them in connection with the work, provided that they do not thereby repeat the main design of the work. Drawings and photographs of works of sculpture permanently situate in public buildings may be made and sold, and also, provided that they are not architectural plans, such reproductions of any architectural work. The reading or recitation in public of reasonable extracts of published works is also per mitted. There is in s. 8 of the act a further provision which was also intended to protect the innocent since it provides that if a defendant proves that at the date of the infringement he was not aware of and had no reasonable ground for suspecting that copy right subsisted in the work the plaintiff shall not be entitled to damages. It was held however in Byrne v. Statist, 1914, 1 K.B. 622 that this provision did not assist defendant who thought he had a licence to copy but was innocently mistaken. Since any work may be the subject matter of copyright it is very difficult for any defendant to prove that he had no ground for suspecting that any particular work is the subject matter of copyright, so that the section does not in practice afford much protection. No action for infringement of copyright may be brought after the expiration of three years from the infringement.

Primarily the remedy for infringement of copyright is by action for an injunction and damages, but s. 11 of the act of 1911 pro vides certain summary remedies whereby the making, sale, dis tribution or importation of infringing copies is punishable by fine or imprisonment. The Musical (Summary Proceeding) Acts of 1902 and 1906 are also still in force, by which pirated copies of musical works may be seized by a constable without a warrant. There is also under the section of the Fine Arts Copyright Act 1862 still unrepealed a penalty upon persons fraudulently signing their name to paintings or photographs or selling or uttering such works so signed. The owner of copyright has a further remedy in the case of large importations of infringing copies in that he can apply to the commissioners of customs and excise for an order that all such copies shall be detained by the customs authorities under the provisions of s. 14 of the act.

Limits of Copyright Protection.

Copyright protection is limited to the safeguarding of the literary or artistic form of a work. What is known in Continental countries as the "droit moral"—the right of an author in the reputation of his work— is not directly recognized in English law. There are, however, cer tain forms of action available to authors from this point of view. There is the "passing off" action. An author has the right to re strain the passing off to the public of another's work as his. This form of action has been used to preserve an author's nom-de-plume and is available in the case of similar titles. In the latter case, how ever, it has to be shown that the public really so associated the title with the author plaintiff that they believed that the other work was also his. The converse case, however, is more difficult. The assignee of copyright has the right, as far as copyright goes, to make any use he pleases of the work assigned though such a use may be displeasing or even injurious to the author. Of course if alterations are made which suggest, for example, that the author writes illegal or immoral works the ordinary law of libel is avail able, but short of this the only form of action open to the author is one in the nature of slander of goods. As success in this action re quires proof of real malice on the part of the defendant and actual damage to the plaintiff, it is not one which is often available. The literary reputation of authors is therefore not fully protected in English law as it exists at present. There is, however, in the case of artistic works the section of the Fine Arts Copyright Act 1862 already mentioned. The fourth clause of this section pro vides that it is an offence to sell, publish, or offer for sale any artistic work which to the knowledge of the vendor or publisher has been altered or added to without the consent of the artist. The sale must, however, be made under circumstances which amount to a representation that the original artist is the author of the work as altered (Preston v. Raphael Tuck, 1926, 1 Ch. 667).

Colonial

scheme of the Copyright Act of 1911 was that it should extend throughout the British dominions as one comprehensive code. The act throughout in speaking of the area covered by it uses the phrase "the parts of His Majesty's dominions to which this act extends," and it may be said at the present time that the act extends to the whole of His Majesty's dominions. Colonial copyright is dealt with in ss. 25-28 of the act. The act initially applied to British possessions but not to the self-governing dominions. It was provided that either the act might be declared to be in force in such a dominion by its own legislature or that, if a self-governing dominion enacted a similar act, the secretary of State for the colonies might by certificate cause the imperial act to apply to the colony, or, if the dominion legislature did not go so far in following the imperial act, but gave adequate protection to British subjects residing elsewhere, an Order in Council could give protection in Britain to the sub jects of this dominion. The dominions took different courses. Newfoundland adopted the imperial act without qualification. The Commonwealth of Australia and the Union of South Africa have also adopted the act but with certain modifications. The Australian act of 191.2 provides for registration though this is not compulsory except for the purpose of enjoying certain summary remedies. The South African act of 1916 has similar provisions for registration. New Zealand and Canada have their own Copy right Acts, but in the case of both dominions the certificates of the secretary of State for the colonies already mentioned have been given. The New Zealand act of 1913 contains sections identi cal with those of the imperial act arranged in a different order. It also provides for voluntary registration and there is a section enabling the governor in council to exclude published works from protection whose authors are subjects of a foreign country not giving reciprocal protection to New Zealand subjects. The orig inal Canadian Copyright Act of 1921 contained certain provisions enabling compulsory licences to be obtained for the publication of books and serials. Such provisions were repugnant to the Berne Convention and by an amending act of 1923 it is provided that these provisions shall not apply to works whose authors are British subjects other than Canadian citizens or subjects or citi zens of a country which has adhered to the Convention. The act, however, still contains provisions requiring the compulsory regis tration of assignments of copyright which appear to be difficult for foreigners to comply with. Apart from this the act contains sections similar to those in the imperial act. The colonies are therefore now all subject to the same code and by Orders in Council made from time to time under the provisions of s. 28 of the act of 1911 that act has been extended to the following protectorates :—Cyprus, Bechuanaland, East Africa, Gambia, Gil bert and Ellice islands, Northern Nigeria, Northern Gold Coast, Nyasaland, Northern Rhodesia, Southern Rhodesia, Sierra Leone, Somaliland, Southern Nigeria, Solomon islands, Swazieland, Uganda, Weiheiwei and Palestine. British India came under the act of 1911 initially but in 1914 passed an act introducing local modifications and in particular limiting the term of copyright of works first published in India to ten years. The Irish Free State was at first subject to the provisions of the act of 1911 by the effect of the Irish Free State Constitution Act 1922. The local legislature in 1927 repealed the 1911 act within the limits of the State and enacted a new Copyright Act which follows closely the old act but has certain additional provisions.

International

copyright has two aspects : the right extended to foreigners by Great Britain, and the right extended to British subjects by foreign countries. The act of 1911 in the first place by S. 1 extends, in the case of pub lished works, to such works as are published in His Majesty's dominions before or within 14 days after publication elsewhere, and in the case of unpublished works to works whose authors were at the date of the making of the work British subjects or resi dent within His Majesty's dominions. But by S. 29 the act may by Order in Council be made to extend to works first pub lished in a foreign country or to the unpublished works of authors who are foreigners or were resident in a foreign country at the date of the making of the work, provided that before the making of such an order in respect of any country, the foreign country must have undertaken to make similar provision for works of British subjects or first published in Britain. Such orders have been made in respect of all the foreign countries mentioned below as being members of the Berne Convention and the provisions of the act of 1911 consequently apply to works first published in these countries and to the unpublished works of their citizens and residents.

The orders however contain some limitations of which the most important is that the term of copyright is not to exceed that pre scribed by the country to which the order relates. Besides these orders an order has been made extending the act to the unpub lished works of citizens of the United States of America or of persons resident there at the date of the making of their works; there is however no copyright in works first published in the United States since that country does not extend reciprocal rights to British works. These orders do not apply to the self-governing dominions to which it is open to make their own arrangements with foreign countries, but in fact all the dominions are now members of the Berne Convention and afford reciprocal rights to other members.

The rights of British subjects abroad chiefly arise by reason of the provisions of the Berne Convention. This Convention consists of a series of treaties known as The Berne Convention of 1886, the Additional Act of Paris of 1896, The Revised Convention of 1908 and the Additional Protocol of 1914. The scheme of the Convention is that each of the contracting countries shall provide for works first published in other countries of the Union and for unpublished works whose authors are citizens of or resident in such countries a certain minimum copyright protection. The greater part of the countries of the Union have now acceded to the 1908 Revised Convention and so it will be sufficient to refer here to the provisions of this Convention.

The operative provision of the Convention is contained in art. 4 which provides that authors who are subjects or citizens of any of the countries of the Union shall enjoy in countries other than the country of origin of the work, for their works, whether unpub lished or first published in a country of the Union, the rights which the respective laws do now or may hereafter grant to natives as well as the rights specially granted by the present Convention. The article proceeds to provide that no formality shall be required for the enjoyment of such rights. In other respects the extent of protection and the means of redress are to be governed exclusively by the laws of the country where protection is claimed. By art. 6 the same rights are extended to authors who are not subjects of a country of the Union who first publish their works in one of those countries. By art. 7 it is provided that the term of pro tection is to be regulated by the law of the country where protec tion is claimed but is not to exceed the term fixed by the country of origin. The provisions with regard to the publication of articles in newspapers are of importance. These are contained in art. 9. News items have no protection at all. Newspaper articles other than serials or tales may be copied unless the reproduction is expressly forbidden but the source from which they are copied must be indicated in relation to any reproduction. Stories, tales and other works may not be reproduced at all. It is not necessary to set out here the articles in the Convention defining the sub ject matter of copyright and the methods in which copyright may be infringed because the British act of 1911 was in fact based on the Convention and drawn up so as to put the provisions of the Convention into force in Britain, and consequently follows closely and works out in detail these provisions. By art. 13 authors of musical works are to have the exclusive right of authorizing the adaption of their works to instruments which can produce them mechanically and of authorizing the public performance of the said works by means of these instruments, but reservations and conditions as to the application of this article may be determined by the domestic legislation of each country. The provisions in Britain as to compulsory recording licences which have already been discussed are in pursuance of this proviso. The Convention established an international office under the authority of the Gov ernment of the Swiss Confederation to examine copyright ques tions and to publish a periodical report of the current changes in the law of copyright. The expense of the office is shared propor tionately by the different countries. Provision is made for the revision of the Convention and discussions with regard to such revisions were held at Rome in May 1928. Non-member States may accede to the Union by giving notice of their accession in writing to the Swiss Government. The present members of the Copyright Union are :—Austria, Belgium, Brazil, Bulgaria, Czecho Slovakia, Danzig, Denmark, Esthonia, France (including Algeria and other colonies and Syria and Lebanon), Germany, Great Britain (including her colonies and possessions, the self-govern ing dominions being individual members), Greece, Haiti, Hungary, Irish Free State, Italy, Japan, Siberia, Luxemburg, Morocco (ex cluding the Spanish zone), Monaco, the Netherlands and Dutch colonies, Norway, Poland, Portugal, Rumania, Spain, Sweden, Switzerland and Tunis.

See T. E. Scrutton, Law of Copyright (4th ed., 1903) ; E. J. Mac Gillavray, The Copyright Act 1911 (1912) ; G. S. Robertson, Law of Copyright (1912), Supplement (1915) ; S. C. Isaacs, The Law of Theatres, Music Halls and Cinemas (1927); W. A. Copinger, The Law of Copyright, 6th ed. by F. E. Skone James (1927). (F. E. S. J.) The protection of copyright by statute in the United States began with the enactment by the State of Connecticut in Jan. 1783, and by the State of Massachusetts in March of the same year, of acts which gave copyright for a term of 14 years, with the right of a 14-year renewal if the authors were living at the expira tion of the first term. This action was the result of a vigorous crusade by Noah Webster. Before May 1786 ten more States had passed copyright acts for varying terms. These acts followed in principle, and substantially in form, the English statute of 1710 known as the Act of Queen Anne. Prior to the organization of the States in 1783, what protection had been enjoyed in America by authors had to be secured in the colonies, as in Great Britain, under the principles of common law.

In i79o, the U.S. Congress, influenced in Large part by the argu ments of Noah Webster and other literary workers, enacted the first national statute. This act gave to authors who were citizens or residents, and to their heirs and assigns, copyright protection for books, maps and charts for a term of 14 years, with the right to renewal for 14 years more at the expiration of that time. The statute provided for the deposit, before publication, of a printed title page in the clerk's office of the local U.S. district court. It provided further for the advertising of the book, with specifica tion of the copyright entry, four times within the first two months after publication. Requirement was made for the deposit, within six months of publication, of a copy of the book with the U.S. secretary of State. The penalties imposed upon a printer of an unauthorized impression of the book so copyrighted included the forfeiture of his piratical copies and a fine of so cents for each sheet that was found. Half of this fine went to the owner of the copyright and half to the United States. The statute also made provision, in confirmation of rights existing under common law, against the unauthorized publication of manuscripts. This original act was followed by the act of i8o2 which required the record of copyright to be printed on or following the title page. The same requirement was made for designs, engravings and etchings en tered for copyright. The statute of 1819 gave to the U.S. circuit courts original jurisdiction in cases of copyright. The act of 1831 which was, in substance, a consolidation of the previous acts, in cluded a provision for the protection of musical compositions. The term was extended to 28 years, with renewal for 14 years to the author, his widow or his children. The requirement of news paper notice, except in the case of renewals, was cancelled. This statute confirmed the requirement for the deposit of a copy with the U.S. district clerk, this copy to be transmitted to the secretary of State within three months after publication. The act of 1834 required that record in the court of original entry should be made of any assignment of the copyright.

In 1846, the Smithsonian Institution was established by act of Congress, this act making provision for the delivery of one copy of a book securing copyright to the library of this institution. The same act provided for the delivery of one copy of the copy righted book to the library of Congress. This was important be cause depositing and cataloguing these books in the library of Congress—a requirement confirmed in all subsequent acts—made it practicable, after 1846, to secure prompt and trustworthy in formation from the library and in later years from the bureau of copyright connected with this library, as to the status of the copyright of any literary work. The applicant desiring to ascertain whether or not a book is in the public domain, or who is the recorded owner of the copyright, made application, under the act of 1846, to the librarian of Congress, and since the establishment of the bureau of copyright, makes application to the register of the bureau, and secures for a fee of $1 the information required. This opportunity of ascertaining the precise status of literary pro ductions which have been entered for copyright is of assured con venience and importance to the publishers and to the book-buying public.

The U.S. act of 1856 secured to dramatists the protection for the right of performance. The act of 1859 made the Interior Department, instead of the State Department, the custodian of copyright. The act of 1861 provided for an appeal to the Su preme Court in all copyright cases, irrespective of the estimated value of the property in question. For other than copyright ap peals it is required that the property in question shall have value of not less than $5,000. The act of 1865 again placed under the control of the library of Congress the copies of books deposited in connection with the entry of copyright. This deposit had to be made within one month from publication. The provision covers not only books, but works of art, photographs and negatives. An amendment in 1867 provided for a penalty of $25 in the case of failure to deposit within the month specified. Twelve acts having to do with copyright had become law prior to 187o. That year brought a general act which provided protection not only for works of literature, but for paintings, drawings, statues, chromos, models or designs, and superseded previous statutes. This act cancelled the control by the local district courts of the system of registry, and made the librarian of Congress the copyright officer. It was re quired that the printed title of the book be filed in his office before publication, and two copies deposited within ten days after publication.

The application of copyright law, unlike that regarding patents, is solely a question for the courts. The librarian of Congress is simply an officer of record and makes no decisions. In 1874 an amendatory act made legal a short form of record—"Copyright, 18—, by A.B."—and the protection of label designs was trans ferred to the patent office. In 1879 the appropriation bill of the U.S. post office contained a provision prohibiting the transmission of any publication that violated copyright. In 1891, after a cam paign extending over many years, a copyright measure providing international copyright became law. The first attempt to bring about international copyright had been made by a committee instituted in 1837 by George P. Putnam, who all his life worked actively for the establishment of copyright relations between the United States and the other literature producing nations of the world.

International Copyright.

In 1885 a copyright committee of authors and publishers was organized for the purpose of secur ing international copyright relations under United States statute. It became evident, during the succeeding years in which the com mittee was endeavouring to secure the enactment of an interna tional copyright bill, that the United States could not secure mem bership in the Convention of Berne, under whose regulations copyright protection was secured for all countries accepting mem bership in the convention, the Governments of which were pre pared to extend such protection to works originating in the other member States. The United States book-manufacturing interests took the ground that works securing the protection of copyright under United States statute must be entirely manufactured within the territory of the United States. This restriction was subse quently modified so that in the act of 1909 permission is accorded to include in a work securing American copyright and manufac tured in the United States illustrations that have been pro duced outside of the United States, provided that "the article in the design did not exist within the territory of the United States." This statute, which was enacted in March 1909, and which came into effect on the first of July, 1909, provided that the term of copyright should be twenty-eight years from the date of first publication, with a right of renewal for a further term of twenty eight years, when application for such renewal and extension shall have been made within one year prior to the expiration of the orig inal term of copyright. The right to secure such renewal is vested in the author, the members of the author's family, or his execu tors. In 1891, after six years of persistent effort, the committee representing the authors and the publishers secured the enact ment of a measure which conceded copyright protection in the United States to countries, the copyright statutes of which granted similar protection to the works of American authors. This statute provided, as above specified, for the manufacture in the United States of all works securing American copyright. In 1919, the copyright bureau of the American Publishers' Copyright League secured the enactment of a statute which gave protection to the transatlantic works that during the years of the World War had failed to meet the requirements of the American copyright law, with the exception of books which had been reprinted in the United States during the war period. The reprinters were left at liberty to continue publishing books which at the time of their reprint had fallen into public domain. An Order in Council, issued through the efforts of Lord Askwith, secured for Great Britain similar copyright protection for works by American authors which during the war years had failed to meet the require ments of the English statute. Both in the American act and in the English Order in Council provision was made for the fulfilment at the time of the application for copyright of the original requirements.

Since 1891, repeated efforts have been made to bring about the enactment of a measure which should enable the United States to accept membership in the Convention of Berne, and in April 1928 a measure with this purpose was on the calendar of the House and of the Senate. This bill waives the requirement for American manufacture, but provides that the exclusive control of the work securing American copyright shall rest with the owner of the copyright, the author, or with his assign, the publisher. Under the statute existing in 1928, libraries and individuals have permission to import "for use and not for sale" copies of the transatlantic editions of books, the copyright of which is the property of the assign (the American publisher) of the trans Atlantic author. In the absence of membership in the Convention of Berne, the United States has, since 1891, come into copyright relations with Great Britain and most of the States of Europe, and also with Japan, under special agreements. The act of 1891 went into force on July 1, and the list of countries with which from that date the United States was in copyright relations included Great Britain, France, Italy, Belgium, Switzerland, Spain and the Scandinavian States. The following year a copyright relation was established by treaty with Germany and some years later Japan, which had accepted membership in the Convention of Berne, brought into force a copyright treaty with the United States. It is the hope of authors, publishers and others who are interested in literary property, and who want to bring about the largest possible distribution of literary productions throughout the civil ized world, that in the near future all barriers and restrictions interfering with the recognition of the property rights of the producer and his assign may be removed. The publishers have in mind, particularly, the extension of the publication of what have been called international series, such as the Science Series, the Heroes of the Nations, the Story of the Nations, etc. In such international series, the authors secure remuneration based upon the number of markets in which editions of the books can be placed. The cost of the authorship is divided between the editions issued in those markets. In like manner, the cost of the illustra tions can be divided. As a result, the author secures from the increased circle of readers a larger remuneration than would ever come to him from the production of an edition for his home market alone, while the reader has placed in his hands, at a lower cost than would otherwise be practicable, a work which may have been written by the world's highest authority on the subject. Such an extension of publishing methods, for the benefit not only of authors and publishers but of the book-buying public, can be possible, however, only under world-wide international copyright, with a system in which the author is left at liberty to sell each market separately and to give to his assign, the publisher, an exclusive control of the market thus sold. (G. H. Pu.)