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Copyright Amendment Act, 1812) the copyright in every book published after July 1, 1842, “ endures for the natural life of the author and for the further term of seven years," or for the term of forty-two years, in all, whichever of such two terms shall prove the longer; and if during the continuance of the term of such copyright “any person in any part of the British dominions prints or causes to be printed, whether for sale or for exportation, any book in which copyright is so subsisting without the consent in writing of the proprietor, or if any such person imports for sale or hire any such book so unlawfully printed as aforesaid from foreign parts, or if he sells, publishes, or causes to be sold or published, any such book so unlawfully printed and imported as aforesaid,” knowing the character of the book, that person so offending shall be liable to an action upon the case at the suit of the proprietor of such copyright, in the place where the offence shall have been committed (ss. 3, 15). The Act, moreover, declares that for the purposes of the Act the expression “ British Dominions ” shall include "all parts of the United Kingdom of Great Britain and Ireland, the Islands of Jersey and Guernsey, all parts of the East and West Indies, and all the Colonies, settlements, and possessions of the Crown which now are and hereafter may be acquired” (s. 2).
Now it appears from the above given brief extract from the Copyright Act of 1842 that, although primarily intended as a municipal enactment only, it had an operation which was practically international between England and her colonies (including therefore Canada); and as Canada will readily compare with the United States in all those before. mentioned respects of population and general enlightenment which are material to this question, it became an anxious consideration with us to ascertain what the effect had been of the quasi international law between England and Canada which was thus established. Well, we have ascertained that the effect was pretty much derision, the Act being simply disregarded. Accordingly the mother country resorted to a further Act of a more coercive character, that of 8 & 9 Vict. c. 93, whereby (amidst other enactments intended to regulate the colonial trades) the importation of “pirated copies ” (or, speaking more correctly, of unauthorized reproductions) of works of British authors enjoying British copyright was absolutely and more stringently prohibited. But the effect of this second Act was equally derisive; and accordingly in 1847, or barely two years afterwards, the mother country, abandoning the principle of her former inter-colonial copyright regulations, enacted by the 10 & 11 Vict. c. 95, in substitution of them, that it might be lawful to suspend by order in Council the Act of 1842 so far as the latter Act purported to prohibit the importation of the copyright works of British authors into the colonies; but such suspension in the case of each particular colony was made conditional upon that colony “making due provision by local legislation for protecting the rights of British authors there."
The last mentioned alteration in the English Inter-Colonial Copyright regulations was scarcely made when it was rapidly seized upon by Nova Scotia, New Brunswick, and Prince Edward's Island in 1848, by Newfoundland in 1849, and by Canada in 1850. The provision for the protection of the rights of British authors, which these colonies respectively have made for the purpose of entitling themselves to the benefit of the relaxation, before alluded to, is, roughly speaking, of the following nature, that is to say, the particular colony has imposed a protective ad valorem auty, averaging 10 or 12 per cent., upon the importation of every work in which there is a subsisting British copyright, and has directed its officers of the Custom House to levy and exact the same. The proximity of Canada to the United States wants only to be remembered to suggest the quarter from which the unauthorised reproductions of British works are chiefly, if not exclusively, imported into Canada and the adjacent provinces, and we are informed in fact that the importation is freely and vigorously carried on from the United States. Yet the British author, although he is the party entitled to the duties, reaps either nothing or some paltry and insignificant amount from the trade; and the letter of the Archbishop of Dublin, which was published in the Times of the 25th October last, furnishes a characteristic instance and a conclusive proof of the barrenness of this source of an author's revenue, the excellent and very popular writings of the most reverend gentleman not having fetched in the amount of the colonial duties that were levied on them the sum of five shillings as their total during a period of years. The whole system, therefore, of the English Inter-Colonial Copyright system, as well in its original as in its substituted character, has clearly proved a failure; and the inference to be derived from the course and the collapse of the legislation which has been attempted in the matter, is certainly one not favourable to the extension of the like legislation to the United States by means of some international copyright convention between that country and Great Britain couched in a similar spirit.
It is, however, one great step towards a knowledge or apprehension of the right, to have clearly known the wrong; and the failure of past legislation with reference to British copyrights in Canada would prove to be experience cheaply purchased should it suggest a better plan for securing the rights of British authors, not in Canada alone, but in the
United States as well, for neither of these two latter countries, and certainly not the latter one of them, is either hostile or averse to the reasonable protection of these rights within its territory. Both countries possess, moreover, a municipal law of copyright which is admirably simple in its clauses, and also perfectly efficient in its operation. The period for which copyright is given is eight-and-twenty years in either country, and the other provisions of the respective copyright Acts of the two countries present a wonderful resemblance to each other-so wonderful, indeed, as to suggest, when contrasted with the English Act especially, some probable diversity in the utility of the copyright protection of authors' works, according as the country in which the works are published is old or new.
But not to dwell upon that matter for the present, it will be conducive to our purpose in this article to mention-(1.) That by the Canadian Copyright Act (which was assented to so recently as the 22nd May, 1868) " Any person resident in Canada, or any person being a British subject and resident in Great Britain or Ireland, who is the author of any book, &c., printed and published in Canada” may have the full benefit of the Canadian Copyright Act upon complying with the requisitions of the Act regarding the registration and presentation of his work (88. 3, 9). And (2.) That by the United States Act of Congress of February 3, 1831 (as altered and amended by subsequent legislation) citizens of the United States, or persons permanently resident therein, being the authors of any book, &c., may have copyright therein and be entitled to the protection of the Act of Congress upon complying with the requisitions of the Act regarding the registration and presentation of their works (c. 16).
The difference between the Canadian and the United States' enactments in the clauses lastly above quoted from those Acts respectively is patent from the comparison itself, residence of a permanent sort being made a requisite by the one, and dispensed with by the other. But we desire particularly to point out that the Canadian Legislature by being merely left alone appear to have devised a simple and efficient means of remedying the evil which English authors have complained of, namely, that they derive a merely barren and insignificant return from the protection of the local Canadian provisions; for now and since the Act of 1868 they have only to authorize the reproduction of their works in Canada simultaneously with, or within a reasonable period after, their first publication in England, in order to entitle themselves to complete protection against the piratical importation into Canada of unauthorized reproductions of them. Moreover, the stipulation before referred to as contained in the Canadian Act, that the work which seeks protection shall have been reproduced in Canada, seems only a fair protection to the Canadian publishers. The last-mentioned stipulation seems also to suggest a mode of removing the difficulty which the United States' Legislature opposes to the due protection there of the British or foreign author's rights.
For that difficulty, as we understand it, is mainly this - That the rights of the American publishers as well as of the American population generally would be endangered, and even seriously affected, by the negociation of any international copyright treaty of the sort which England is alleged to have generally desired with the United States, the particular kind of treaty which is sought being one (it is alleged) in the interest not merely (nor even principally) of the English author, but also and chiefly of the English publisher. And for the nonce we admit the allegation, without examining it; for we know not whether it be true or not. But, then, it seems to us, that by adopting the spirit of the Canadian Act, and in particular by insisting upon some stipulation corresponding to the stipulation which we have mentioned to be contained in the Canadian Act, the United States, might at once modify their Act of Congress of 1831 in such a manner as to secure at once their own domestic interests, and also the British or foreign interests of authors, by allowing (say) the protection of his copyright to an English or foreign author, although not even temporarily, much less permanently, resident at any time within their jurisdiction, requiring, however, of him condition that he should, either simultaneously with, or shortly after, the first publication of his work abroad, republish it in the United States through an American house, (whether or not "a branch ” of some English or of some foreign house); for in this manner the United States would both follow out consistently on the one hand the principles of free trade in commerce, so far as the publishing houses were concerned, and would also, on the other hand, accord such protection to the rights of authors (whether home or foreign) as reason would suggest, and as good policy would seem to indicate. For the property rights of the publisher are properly confined to the jurisdiction of the country of the publication (or republication], being bound up within the corporeal substance of the book, but the property rights of the author, like other personal property, accompanying his person everywhere, ought to be, it is admitted, equally sacred on both sides of the Atlantic and Pacific; his spiritual person may, indeed, be taken to be omnipresent. By the simple expedient which we have now suggested, the whole benefit of an international convention would be secured, and secured moreover in the interest of all concerned, both States and individuals, and both
publishers and authors, by local legislation, the facility of enforcing which greatly recommends it in preference to the cumbrous and inexact proceedings of international assemblies.
Perhaps, however, the United States may object to dispensing with the qualification of residence as a preliminary condition to the enjoyment of the rights of copyright within the States ; and we are not prepared to say that the objection would be unreasonable ; certainly we could not insist upon their making any such concession to ourselves, without our tendering a like concession in return to them. But England would be prepared to tender such a concession; perhaps even it may shortly become a point of rivalry between the United States and England which of the two countries (our own or theirs) shall be the first to make the concession voluntarily; for to make it will harm neither (as far as we can see), but will more probably aid either, securing as it would in a properly discriminative manner the rights of the respective publishers of both countries equally and also the rights of the much toiling and in general ill-requited author, who, though nominally of one country, is in reality (as we have said) of no country in particular, but of all countries equally. But supposing that, notwithstanding considerations and proposed or probable concessions of this sort, the United States should still (as they have a sovereign right to do) retain the qualification of permanent residence as an indispensable preliminary to the enjoyment of the rights of copyright in the States, then they might at least enact (were it in the interest of their own citizens and people only), that the publishing house which should first reproduce an English or foreign work within the States should be taken to be within the States practically the author of the work, and should be entitled to a quasi copyright therein accordingly, to the extent, that is to say, of being protected in respect of the particular republication for eight-and-twenty years, or less or more, against the competition of other American publishing firms. For even if this secondary point were gained, we should be nearly, if not entirely, satisfied; as we might safely trust to moral causes for the rest. The English or foreign author might then safely contract with some American house to furnish it with the original or a duplicate of his manuscript at the same time that he handed the duplicate or the original to some English firm; and the publishers of either nation might then bring out the work in whatever style they might conceive to be most suitable for their own particular nation.
The suggestions we have made may probably be thought to want development; they seem, however, to be deserving of consideration, as well from their simplicity as from this other circumstance, that they are a natural deduction