Briggs, William. The Law of International Copyright. London, 1906. Part IV, Chapter II, section 2, pp. 609-610, 612–615.

CHAPTER II.-Colonial copyright—Section 2, imperial copyright as it subsists in the colonies.

THE PROTECTION OF IMPERIAL COPYRIGHT IN CANADA.

Royalty system proposed by Canada.-The failure of the remuneration provided by the foreign reprints act led to complaints from British authors and publishers, and attempts were made to procure the repeal of the act. The Canadians, who were the chief offenders, alleged in their defense the great extent of their frontier and the negligence of British publishers in not giving to the proper authorities timely notice of the publication of copyright works. They urged that they were forced to take American reprints, because they were forbidden to republish English copyright works on their own account; and that thus a book trade which might otherwise have been theirs was thrown into the hands of the Americans.

They proposed that they should be allowed to republish English books themselves, under license from the governor-general, and that, in respect of each license, publishers should pay an excise duty of 12 per cent, for the benefit of the author. So the Canadian publishers would be able to undersell the American exporters, and the duty being an excise, not a customs, duty would be less liable to evasion since the authorities would, in this case, be able to go directly to the source of production and levy the duty there.

The Canadian copyright act, 1875.-While these matters were in debate, the Canadian legislature passed their copyright act of 1875, which provided for the full protection of English works against foreign reprints, on condition that such works were reprinted and republished in Canada. This having been reserved by the governor-general for the Queen's assent, doubts arese as to whether the measure was not repugnant to the foreign reprints act, as applied to Canada; and so a special act of the British Parliament was passed to give Her Majesty power to assent to the Canadian bill, and in virtue of this power the royal assent was given.

The Canadian statute enacts (sees. 4 and 6) that any author domiciled in Canada or any other part of the British possessions, or being a citizen of any country having an international copyright treaty with the United Kingdom,

But 5 and 6 Viet., ch. 45, as has been seen, enacts in one section that they shall become the property of the owner of the copyright, and in another that they shall be destroyed by any officer of customs or excise.

The matter has been still further complicated by the customs laws. The latest consolidation act (39 and 40 Vict., ch. 36), passed in 1876, prohibits the importing of certain enumerated articles, and declares that they shall be forfeited, and may be destroyed or otherwise disposed of as the commissioners of customs may direct" (sec. 42). Among the things thus enumerated are "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."

Section 44 enacts that The commissioners of customs shall cause to be made, and to be publicly exposed at the custom-houses in the several ports in the United Kingdom, lists of all books wherein the copyright shall be subsisting, and as to which the proprietor of such copyright, or his agent, shall have given notice in writing to the said commissioners that such copyright exists, stating in such notice when such copyright expires, accompanied by a declaration made and subscribed before a collector of customs or a justice of the peace that the contents of such notice are true."

Section 45 provides that persons complaining of the prohibition of books in the copyright lists may appeal to a judge in chambers.

Section 152 prohibits the importation into the British possessions abroad of foreign reprints of English copyright books, but provides that "nothing herein contained shall be taken to prevent Her Majesty from exercising the powers vested in her by the 10 and 11 Vict., ch. 95, intituled 'An act to amend the law relating to the protection in the colonies of works entitled to copyright in the United Kingdom,' to suspend in certain cases such prohibition."

a By an order in council of 12th December, 1850.

may gain copyright in Canada for twenty-eight years, by printing and publishing, or reprinting and republishing, his work in Canada, and fulfilling the formalities of the Canadian law. There is a proviso that nothing in the act shall be held to prohibit the importation into Canada from the United Kingdom of copies of English copyright works legally printed there; though a recent act (of 1900) provides that in certain circumstances this shall be forbidden.

Briggs, William. The Law of International Copyright. London, 1906. Part IV, Chapter II, section 3, pp. 630-632.

CHAPTER II.-Colonial copyright.-Section 3, the domestic law of Canada.

IMPERIAL COPYRIGHT IN CANADA.

Penalties for importation of foreign reprints.-The importation into Canada of foreign reprints of Canadian copyright works, and of British copyright works which have been also copyrighted in Canada, is an offense punishable with a penalty of $200, together with forfeiture of the parcel or package of goods in which the reprints are found; and, under the English copyright act of 1842 (sec. 17), which now applies to Canada, owing to the abolition of the author's royalty dues in 1895, the importation into that country of reprints of any British copyright work is unlawful, entailing forfeiture of the offending copies, together with a penalty of $10 plus twice the value of the copies imported.

If license for reproduction granted, importation of English edition may be prohibited. If a book first published in any other part of the British dominions except Canada has acquired copyright in Canada, and the owner of the copyright has granted a license for the reproduction (in Canada) of a Canadian edition, then the minister of agriculture may prohibit the importation into Canada of any copies of such book printed elsewhere-including, that is, copies lawfully printed in the United Kingdom or any other part of the British dominions. This prohibition may be revoked by the minister if it is proved to his satisfaction:

(a) That the license to reproduce in Canada has terminated or expired:

(b) That the reasonable demand for the book in Canada is not sufficiently met without importation;

(c) That the book is not, having regard to the demand in Canada, being suitably printed or published; or,

(d) That "any other state of things exists on account of which it is not the public interest to further prohibit importation."

There is some doubt, however, as to the validity of these provisions of the act of 1900, which prima facie are in conflict with the imperial statutes. They cut off the owners of the copyright in English books from the Canadian market, if such owners have granted away the Canadian rights. Of this market the Canadian licensee is to have a monopoly. And, as we have seen, under the imperial act of 1875, Canadian copies, lawfully made, of an English copyright work can not be imported into the United Kingdom. The effect is virtually to sever the Canadian market from the English and to put a check on the circulation of books (lawfully printed) between the various parts of the British dominions.

Prohibition may be withdrawn if licensee does not satisfy Canadian demand. At any time after the importation of a book has been prohibited under the act of 1900, the licensee is bound, upon demand from any member of the Canadian public, to import and sell a copy of any edition of such book then "reasonably obtainable" in any part of the British dominions; and failure or neglect on his part to do so will be a reason for which the minister may revoke the prohibition upon importation.

On the other hand, the imperial act passed to confirm the Canadian statute expressly enacts (sec. 4) that Canadian copies of an English copyright work shall not be imported into the United Kingdom without the author's consent.

a In 1889 another Canadian act (Stat. 52 Vict., ch. 29, sec. 2) purported to repeal the whole section (6) of which this proviso formed part. This act is. however, of no force or effect.

"Where any book in which, at the time when the said reserved bill comes into operation, there is copyright in the United Kingdom, or any book in which thereafter there shall be such copyright, becomes entitled to copyright in Canada

Canadian reprints of English works may not be imported into England.When an authorized edition of an English work has been republished in Canada, it is obviously of some importance to determine whether or not regular copies of the English edition may be imported into Canada, and vice versa. Importation from one part of the Empire to another was not included in the prohibition of the copyright act of 1842, but as we have seen, the English act of 1875, passed to confirm the Canadian statute of that year, expressly prohibits the importation of Canadian copies into the United Kingdom without the author's consent.

Argument for free circulation of cheap colonial reprints.-This provision gave rise to much discussion, and its repeal was strongly urged before the copyright commission of 1876. It was contended that as the English author had the benefit of an extended area in which to sell his books, so also he ought to be content with a less profit per copy and submit to other consequent disadvantages. If he chose to arrange for the sale of copies at a low price in one part of the British dominions, that was his own business, and he could not expect the law to intervene in order to protect him from being undersold in his own proper market by these cheap reprints made with his own permission. In England at that time the prices of books were very high," and it was said that, if the introduction of colonial reprints, which had to be sold at a low price in order to win the colonial market, was allowed, prices generally would be greatly reduced. It was urged that it was unfair to the British public that they should be the only section of the community to be debarred from participating in the advantages of cheap colonial editions.

Argument against importation of cheap colonial reprints.-On the other hand, the authors and publishers objected strongly to the proposed change in the law, thinking that the reduction of prices which would follow from the free introduction of colonial reprints would do them much harm. In their view, the result of abolishing the restraint upon importation, would be that no English author or publisher would consent to the republication of a cheap edition in the colonies, owing to the danger of such an edition ousting the principal edition from the home market.

*

*

*

The opinion of the copyright commission of 1876.-The commission of 1876 decided in favor of the authors, saying: On the whole we think that the admission of such reprints would probably operate injuriously towards British authors and publishers and that it is doubtful if it would be attended in many cases with the result anticipated that is to say, the cheapening of books for home consumption. We think the almost certain result would be that it would operate as a preventive to republication in the colonies by authors themselves, so that the colonial reader would be in no better condition than he is now. We therefore think that colonial reprints of copyright works first published in the United Kingdom should not be admitted into the United Kingdom without the consent of the copyright owners; and, conversely, that reprints in the United Kingdom of copyright works first published in any colony should not be admitted into such colony without the consent of the copyright owner." No change in the law of England has yet followed from the labor of this commission.

Canadian act of 1900 conditionally prohibits importation of English editions.— In 1900 Canada affected to carry out for itself what it had for many years been beseeching the Imperial Parliament to do on its behalf, by passing a statute which provides that, when the owner of the copyright in a British work first published outside Canada has lawfully granted a license to reproduce it in Canada, then, "notwithstanding anything in the copyright act," the Canadian minister of agriculture may prohibit the importation into Canada of any copies in pursuance of the provisions of the said reserved bill, it shall be unlawful for any person, not being the owner, in the United Kingdom, of the copyright in such book, or some person authorized by him, to import into the United Kingdom any copies of such book reprinted or republished in Canada; and for the purposes of such importation the seventeenth section of the said act of 5 and 6 Vict., c. 45, shall apply to all such books in the same manner as if they had been reprinted out of the British dominions."

a In those days novels were usually issued in three volumes at £1 11s. 6d. and circulated in England by means of lending libraries. In Canada there were no such libraries. Few novels are now published in England at a higher price than 6s.

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printed elsewhere. It would seem that no such prohibition can affect the importation of foreign reprints, which is already illegal, as explained above, Hence apparently the sole effect of the act of 1900 is to enable the importation of copies of the legitimate English edition to be prevented.

[Copinger, W. A. "The Law of Copyright," (4th ed.) London, 1904. Part I, Literary Copyright.]

CHAPTER VI (pp. 194–195).—The infringement of copyright.

[1842, sec. 17.] The seventeenth section of the copyright act provides that after the passing of the act it shall not be lawful for any person not being the proprietor of the copyright, or some person authorized by him, to import into any part of the United Kingdom, or into any other part of the British dominions, for sale or hire, any printed book first composed or written or printed and published in any part of the United Kingdom, wherein there shall be copyright, and reprinted in any country or place whatsoever out of the British dominions; and if any person, not being such proprietor or person authorized as aforesaid, shall import or bring, or cause to be imported or brought, for sale or hire, any such printed book into any part of the British dominions, contrary to the true intent and meaning of the act, or shall knowingly sell, publish, or expose to sale, or let to hire, or have in his possession for sale or hire, any such book, then every such book shall be forfeited, and shall be seized by any officer of customs or excise, and the same shall be destroyed by such officer; and every person so offending, being duly convicted thereof before two justices of the peace for the county or place in which such book shall be found, shall also for every such offense forfeit the sum of £10, and double the value of every copy of such book which he shall so import or cause to be imported into any part of the British dominions, or shall knowingly sell, publish, or expose to sale, or let to hire, or shall cause to be sold, published, or exposed to sale, or let to hire, or shall have in his possession for sale or hire, contrary to the true intent and meaning of the act, £5 to the use of such officer of customs or excise, and the remainder of the penalty to the use of the proprietor of the copyright in such book."

CHAPTER VII (p. 201)—Remedy in cases of infringement of copyright. [1842, sec. 15.] By this section [1(15)] the printer is made liable for damages only when the printing is for "sale or exportation," and the importer only when copies are imported for "sale or hire." No remedy is given against any person who prints or imports for gratuitous distribution, or who gratuitously distributes copies printed or imported without authority. But in Novello v. Ludlow, it was held that an action for damages would lie under the statute for the gratuitous distribution among the members of a singing society of lithographic copies of a musical composition; d for where a statutory right exists and the statutory remedies are either not complete or inadequate for the protection of the right conferred, the common law remedies may be made available.

CHAPTER 1 (p. 461).-International copyright.

[Part V. International and Colonial Copyright.]

Pitts v. George & Co. [1842, sec. 10.] It will be observed that this section, absolutely prohibiting the importation of piracies, expressly excepts from its operation the importation

a But see foreign reprints act, 1847 (10 and 11 Vict., c. 95), post colonial copyright.

This section would exclude books reprinted out of the British dominions only, and not books reprinted in a colony; but see the 39 and 40 Vict. c. 36, s. 42. post. The owner of the British international copyright of a book first published in Germany succeeded, by virtue of this section, in preventing the importation for sale in Great Britain of copies of the same book printed in Germany by the owner of the German copyright. Pitt. Pitts v. George & Co. (1896), 2 ch. 866.

© (1852), 12 C. B. 177.

& See also Rooney v. Kelly (1861), 14 Ir. L. R. (N. S.) 158; Warne v. Seebohm (1888), 39 Ch. D. 73; Cooper v. Whittingham (1880), 15 Ch. D. 501.

of copies made in the country in which the copyright book was first published. Consequently in a case where the plaintiff was the owner of the British international copyright of a book first published in Germany, and the defendant imported and sold in Great Britain copies printed in Germany by the owner of the German copyright, it was contended that the plaintiff had no remedy. The court of appeal, however, decided, reversing Kekewich, J., that section 10 of the international copyright act was not intended to be a code containing a complete enumeration of the remedies available for an infringement of copyright in foreign works, but that section 3 made sections 15 and 17 of the literary copyright act, 1842,a applicable to the book in question, and that as under those sections the owner of the copyright could. if the book had been published in Great Britain, have restrained the importation of these copies, the owner of the British international copyright could do so, though the alleged infringements were "lawfully" printed in Germany.

This decision, though no doubt correct in principle, may be found to work harshly in practice. For instance, A. may have been in the habit of ordering, say, German copyright books from B.. the proprietor of the copyright in Germany, in order to supply the British market. That is a perfectly lawful proceeding on his part, so long as B. has retained the entire copyright; but one day B., without any notice to A., assigns the British copyright to C. and thereupon A. will become liable, at the suit of C., for unlawfully importing into Great Britain.

Lyon-Caen, Ch., et Delalain, Paul. Lois francaises et etrangeres sur la propriété litéraire et artistique. Paris, 1889.

Belgium (act of March 22, 1886, article 25, p. 179).-Those, who knowingly sell, expose for sale, keep in their stores or import into Belgium territory. for sale, the articles designated in 'the first paragraph, shall be punished by the same penalties.

Spain (act of January 10, 1879, article 51, p. 225).—And fourthly the printing, sale, importation and exportation, in each country, of works in the language or dialect of the other countries are always prohibited, if not done with the authorization of the proprietor of the original work.

Norway (act of June 8, 1876, article 24, p. 443).-Whoever exposes for sale, or introduces for the purpose of trade, copies of a work which he knows to be a counterfeit shall be punished according to article 21. He shall also be held to make reparation for the injury which he may have caused by his offense. Russia (1886, article 15, p. 490; article 50, p. 503).—Article 15 (old article 297). Publication is equally prohibited (infringement): (b) If some one having printed a book in a foreign country which was published in Russia, or which was approved by the Russian censor, even if it be a translation in a foreign language and who sells copies of it in Russia, without having obtained the permission of the legal publisher in writing.

Article 50 (old art. 352): The composer of a piece of music who assigns his exclusive right to a third party in the Empire and who afterwards publishes this piece abroad, if he imports copies of such piece within the territory of the Empire, is subject to the same restraint in favor of the person who acquired the aforesaid right, as if it were a question of infringement. He is permitted, however, to import a certain number of copies, not more than ten, for his own Peru (act November 3, 1849, article 7, p. 158).-Whoever introduces or sells throughout the extent of the Republic, editions of books published abroad, the copyright of which belongs to a third person, is subject to the confiscation of all of the copies in his possession. These copies will be given back to the proprietors of the work.

International conventions, France and Germany.

[Article 11, p. 257; article 14, p. 258.]

Article 11: When the author of a musical composition or of a dramaticomusical composition shall have assigned his right of publication to a publisher, for the territory of one of the two countries to the exclusion of the other, the

a See ante, p. 194.

Pitts v. George & Co. (1896), 2 Ch. 866. By section 9 of the 15 and 16 Vict. c. 12, the provisions against unlawful importations were extended to translations.