I.

THE LAW, THE MISCHIEF, AND THE

REMEDY.

The Existing Law.*

Meaning of "Copyright.”—The term copyright means the sole and exclusive right of printing or in any other way multiplying copies of books, pictures, statues, musical scores, lectures, or any other subject to which the term is applied.†

History. The first Copyright Act was the act of Anne (8 Anne, c. 19.), passed in 1709, which applied to "books and writings" alone, and gave to authors of books then existing a copyright for 21 years, and to authors of books to be in future published a copyright for 14 years from publication. Whether any and what copyright existed before this Act is a much-vexed question which has never been authoritatively settled, and probably never will be. The effect of the Act, however, was beyond doubt to substitute a fixed statutory right for an indefinite common law right, whatever that pre-existing right was. So it was decided by the House of Lords in 1774.‡

The preamble of the Act of Anne is noticeable. It recites that, " printers, booksellers, and other persons

* See the Digest of Sir J. Fitzjames Stephen, Q.C. (now Mr. Justice Stephen) appended to the Report of the Royal Commission of 1878, hereinafter referred to as "Steph. Dig."; Copinger on Copyright, 2nd ed., A.D. 1881; Shortt on Literature and Art, 3rd ed., A.D. 1884; Scrutton on Copyright, 2nd ed., 1890.

† See Act of 1842, s. 2.

In Donaldson v. Becket, 2 Brown's Parliamentary Cases, 129.

"have of late frequently taken the liberty of printing, reprinting, and publishing books and other writings "without the consent of the authors or proprietors of "such books and writings to their very great detriment, "and too often to the ruin of themselves and their "families," and then proceeds to give the 14 years' copyright, "for preventing such practices for the future, and for the encouragement of learned men to compose and "write useful books." This shows that the Act was not merely intended to be for the benefit of authors, but for the benefit of the public also, being in fact partly based upon the policy of the first Patent Act, commonly called the "Statute of Monopolies," which, in the reign of James the First, had conferred a 14 years' monopoly upon the true and first inventor of new manufactures within the realm. The interest of the public, moreover, was specially safeguarded by the curious provision, soon afterwards repealed, that the Archbishop of Canterbury, sitting in consultation with the Lord Chancellor and the judges of the land, should have power to settle the prices of books upon complaint, made good, that unreasonable prices were exacted a provision which is the origin of the existing restricted enactment, by which the Judicial Committee of the Privy Council may, after the death of an author, license the republication of books which the proprietor of the copyright refuses to republish.

Between 1709 and 1842 the following Acts were passed :-*

In 1735, 8 Geo. 2. c. 13., giving copyright in engravings.

In 1739, 12 Geo. 2. c. 36., to prohibit the importation of British books reprinted abroad, and repeal so much of the Act of Anne as empowered the limiting of the prices of books (repealed).

In 1767, 7 Geo. 3. c. 38., to render the Act of 1735 more effectual.

* One or two Acts of small importance are omitted from our list.

In 1777, 17 Geo. 3. c. 57., to render the Acts of 1735 and 1767 still more effectual.

In 1798, 38 Geo. 3. c. 71., giving copyright in busts and new models (repealed).

In 1801, 41 Geo. 3. c. 107., extending copyright in books for 14 years more, if author still living at the end of the first 14 years (repealed).

In 1814, 54 Geo. 3. c. 56., giving copyright in every kind of sculpture.

In 1814, 54 Geo. 3. c. 156., extending copyright in books to a term of 28 years certain, and the residue of the life of the author (repealed).

In 1833, 3 Will. 4. c. 15., giving author of play sole liberty of representation.

In 1835, 5 & 6 Will. 4. c. 65., to prevent the publication of lectures without consent.

In 1838, 1 & 2 Vict. c. 59., the first International Copyright Act (repealed).

The preamble of the Act of 1842, 5 & 6 Vict. c. 45. recites that, “it is expedient to amend the law of copyright, " and to afford greater encouragement to the productions "of literary works of lasting benefit to the world." This Act is sometimes called Talfourd's Act, from its being founded on a Bill first introduced in 1837 by Serjeant, afterwards Mr. Justice Talfourd, the author of "Ion." Ion." It was in fact piloted through the House of Commons by Lord Mahon, who, as Lord Stanhope, was more than 30 years afterwards appointed chairman of the Copyright Commission, but died before the Commission had held any sittings. The House of Commons debates furnish very instructive reading on the subject. Talfourd had proposed, in 1841, that the copyright term should be the life of the author and 60 years after the death of the author; but though he professed himself willing to accept a term of life and 30 years, his Bill, brilliantly and vigorously opposed by Macaulay, was rejected. Lord Mahon's proposal was for a term of life and 25 years, but Macaulay suggested and carried a term of 42 years or life, whichever should be the

longer, which, on the motion of Sir Robert Peel, was altered in favour of authors to the existing term of forty-two years from publication, or till seven years from the death of the author, whichever shall be the longer.

By this Act also the provisions of the Act of 1833, as to dramatic copyright, were extended to musical compositions, and the term of both dramatic copyright and musical copyright was assimilated to that of copyright in books.

Since 1842 the following Acts have been passed:

In 1844, 7 Vict. c. 12., the principal existing International Copyright Act.

In 1847, 10 & 11 Vict. c. 95., the Foreign Reprints Act, allowing the suspension, by Order in Council, of the prohibition of importation of pirated books into the Colonies.

In 1852, 15 Vict. c. 12., an International Copyright Act, allowing translations of political articles in foreign periodicals to be published here.

In 1862, 25 & 26 Vict. c. 68., for the first time giving copyright in paintings, drawings, and photographs.

In 1875, the Canada Copyright Act, 1875, 38 & 39 Vict. c. 53., to allow the Royal Assent to be given to the Canadian “Copyright Act of 1875.”

In 1876, the Customs Consolidation Act, 1876, 39 & 40 Vict. c. 36. s. 42, by which there is a prohibition of importation of, and a forfeiture and power of destruction of, "Books wherein the copyright shall be first subsisting, first composed, or written or printed, in the United Kingdom, and printed or reprinted in any other country, as to which the proprietor of such copyright or his agent shall have given to the Commissioners of Customs a notice in writing, duly declared, that such copyright subsists, such notice also stating when such copyright will expire."

In 1882, the Copyright Musical Compositions Act, 45 & 46 Vict. c. 40., to protect the public from vexatious actions for unauthorized performances of musical compositions.

In 1886, the International Copyright Act, 49 & 50 Vict. c. 33., to enable Her Majesty to accede to the Berne convention. In 1888, a second Copyright Musical Compositions Act further to amend the law in the subject matter of the Act of 1882.

Summary.-Under these Acts, the term of copyright varies with the subject-matter of it.

In books, &c., the term is 42 years from publication, or life of the author and 7 years, whichever is the longer.

With regard to magazine, &c. articles, there is the following very special provisions :

If the publisher or proprietor of any encyclopædia, review, magazine, or periodical work, or work published in parts or series, employs and pays persons to compose any volume, part, essay, article, or portion thereof, on the terms that the copyright therein shall belong to such publisher or proprietor, such publisher or proprietor has upon publication the same rights as if he were the author of the whole work (with the following exceptions) :— 1. After 28 years from the first publication of any essay, article, or portion in any review, magazine, or other periodical work of a like nature [not being an encyclopædia], the right of publishing the same in a separate form reverts to the author for the remainder of the term for which his copyright would have endured if the same had been originally published by him elsewhere.

2. During the said term of 28 years the publisher or proprietor may not publish any such essay, article, or portion, separately or singly, without the consent of the author or his assigns.

The author of any such magazine as aforesaid may, by contract with any such publisher or proprietor, reserve the right of publishing any work, his composition, in a separate form, and if he does so he is entitled to copyright in such composition when so published for the same term as if such publication were the first publication, but without prejudice to the right of the publisher or proprietor to publish the same as part of such periodical work.*

In sculpture, the term of copyright is 14 years from first putting forth the sculptured work.

In paintings, drawings, and photographs, the term is the life of the author and seven years after his death. There is, however, this remarkable and anomalous enactment as to the assignment of copyright in paintings, drawings, and photographs, that if the artist sells them without having the copyright reserved to him by written agreement he

*Steph. Dig., Art. 5.