PART I. And sect. 3 provides, "that no person allowed for certain CHAPTER II. fee and reward, or otherwise to attend and be present at any lecture delivered in any place, shall be deemed and taken to be licensed or to have leave to print, copy, and publish such lectures only because of having leave to attend such lecture or lectures. Exceptions to copyright in lectures. Prints. Paintings, draw Sect. 4 makes an exception in the case of lectures published with leave of the authors or their assignees, and of which the statutory term of copyright had expired, and also in the case of lectures published before the passing of the Act (9th September, 1835). Sect. 5 makes a further exception. It enacts "that nothing in the Act shall extend to any lecture or lectures, or the printing, copying, or publishing any lecture or lectures, or parts thereof, of the delivering of which notice in writing shall not have been given to the justices living within five miles from the place where such lecture or lectures shall be delivered two days at the least before delivering the same, or to any lecture or lectures delivered in any university or public school or college, or on any public foundation, or by any individual in virtue of or according to any gift, endowment, or foundation, and that the law relating thereto shall remain the same as if this Act had not been passed." There is also a copyright in prints, which will be dealt with in a subsequent chapter; but no copyright, as before stated, exists in prints of a libellous, obscene, or immoral character. (a) A copyright in paintings, drawings, and photographs is ings and photo-conferred by 25 & 26 Vict. c. 68. This will also be treated of in a subsequent chapter. graphs. Newspapers On the question whether copyright exists in the case of newspapers, see the chapter on newspapers, post. CHAPTER III. WHO MAY POSSESS COPYRIGHT. LEAVING Out of consideration at present the question of international copyright, there is no doubt that every person (whether he be a foreigner or a British subject) who owes allegiance, either natural and perpetual or temporary, to the (a) Vide ante, p. 11. PART I. sovereign of this country, is capable of possessing the copyright in any innocent work which he publishes in this country CHAPTER III. during the time that he owes such allegiance. A natural born British subject before the Naturalization Act of last year (33 Vict. c. 14) was held to carry his allegiance with him throughout the world, and no change of circumstance, time, or place could free him from it. (a) An English author, therefore, might reside abroad, and yet have his right as an English author upon publication here. Residence abroad could not release him from his natural allegiance, and therefore he carried with him also the natural rights of a subject of England wherever he went. (b) Besides this natural and perpetual allegiance, our law also recognizes a local or temporary allegiance which is due from every alien or stranger born for so long a time as he continues within the sovereign's dominion and protection, (c) and which he ceases to owe as soon as he transfers himself from this kingdom to another. (d) An alien friend temporarily residing here and consequently owing a temporary allegiance, is entitled to copyright in any work which he publishes here whilst so temporarily residing, however short his period of residence may be. But if the alien does not reside in the British dominions at the time of publishing his work here, is he entitled to copyright in it ?(e) The answer to be given is not free from doubt. since over-ruled. In Cocks v. Purday (f) the Court of Common Pleas, follow- Cocks v. Purday, ing out the general principle that an alien may acquire personal rights and maintain personal actions in respect of injuries done to him, though he cannot maintain real actions, held that a foreigner resident abroad could acquire the copyright in a work first published by him as author or as author's assignee in this country though residing abroad at the time that the work was first published here. (g) And in support of this opinion the following considerations were urged, that by the 5 & 6 Vict. c. 45, copyright is to be deemed personal property, and to be transmissible by (a) See Calvin's Case (7 Rep. 6 b.). (b) Vide judgment of Lord St. Leonards in Jeffreys v. Boosey (4 H. L. Cas. 977). The Naturalization Act of 33 Vict. c. 14, enables natural born British subjects under certain circumstances to free themselves from their allegiance (ss. 4, 6) and to resume it again (s. 8). Calvin's Case, ubi supra. (d) 2 Steph. Black. 418. (e) See the judgments in Jeffreys v. Boosey, ubi supra. (f) 5 C. B. 860. (4) See also in connection with this opinion D'Almaine v. Boosey (1 Y. & C. 288), and Bentley v. Foster (10 Sim. 329), and the opinion of Bayley, J., in Clementi v. Walker (2 B. & Cr. 861). PART L bequest, or, in case of intestacy, to be subject to the same CHAPTER III. laws of distribution as other personal property, and in Scotland is to be deemed personal and movable estate, and even before that statute it was always treated as personal property, and aliens can acquire personal property; and the opinion expressed by Shadwell, V.C., in Bentley v. Foster (a) was referred to, that "if an alien friend wrote a book, whether abroad or in this country, and gave the British public the advantage of his industry and knowledge, by first publishing the work here, he was entitled to the protection of the laws relating to copyright in this country." And in Chappell v. Purday (b) Lord Abinger, C.B., had declared himself of opinion that a foreigner, who is the author of a work unpublished abroad, might communicate his right of property therein to a British subject, at least for the period prescribed by the statute of Anne. Another decision in favour of the doctrine that a foreigner, though resident abroad at the time of publication, may have copyright in this country if the first publication takes place here, was pronounced by the Court of Queen's Bench in Boosey v. Davidson, (c) where an action was brought for infringement of copyright in certain operatic airs composed by a foreigner and alleged to have been first printed and published in England. The court stated no other ground for their decision than the judgment of the Court of Common Pleas in Cocks v. Purday. The Court of Exchequer in Boosey v. Purday (d), decided in the same year as Boosey v. Davidson, refused to follow the decision in that case and in Cocks v. Purday. The plaintiff in Boosey v. Purday was the assignee of certain airs of an opera which Signor Ricordi had purchased from the composer Bellini, a foreigner, and the action was brought for an infringement by the defendant of the plaintiff's copyright in the dramatic airs. The court held that a foreign author residing abroad, who composes a work abroad, and sends it to this country, where it is first published under his authority, acquires no copyright therein; neither does a British subject to whom such work is assigned by the foreign author gain any such right. Pollock, C.B., in delivering the judgment of the court, said, "We perfectly concur with the Court of Common Pleas, that a foreigner in amity with this country may sue for the infringement of any of his rights, a point which we never doubted; but we thought it clear that a foreigner had no copyright in (a) 10 Sim. 329. (b) 4 Y. & Col. 495. PART L England by the common law, and that his right must depend wholly upon the construction of the statutes, and if CHAPTER IIL they did not give it to him he could have no right at all. And, with respect to the construction of the statutes, we thought, if there were no binding authorities to the contrary, that the Legislature did not mean to confer a copyright on any but British subjects. . . . . Our opinion is that the Legislature must be considered prima facie to mean to legislate for its own subjects only, in some sense of that term, which would include subjects by birth or residence, being authors, and the context or subject matter of the statutes does not call upon us to put a different construction upon them." And even before the decision in Cocks v. Purday, Shadwell, V.C., in Delondre v. Shaw, (a) though not dealing in that case with the question of copyright, remarked that "The court does not protect the copyright of a foreigner."(b) The law on the subject of the copyright of foreigners, Jeffreys v. Boosey. which these conflicting decisions had left in considerable doubt, appeared to be finally determined by the House of Lords in the case of Boosey v. Jeffreys, after all the judges had been called on to deliver their opinions. The facts of that case were as follow: (c) Bellini, the celebrated musical composer, an alien friend, composed, while living at Milan, an operatic work "La Sonnambula," in which by the laws there in force, he had a certain copyright. He there on the 19th of February, 1861, by an instrument in writing, bearing date on that day, made an assignment of that copyright to Giovanni Ricordi, which assignment was valid by the laws there in force. Ricordi afterwards came to this country, and on the 9th of June, 1831, by deed assigned, for valuable consideration, the copyright in the said work to Boosey, his executors, administrators, and assigns, but for publication in the United Kingdom only. Boosey printed and published the work in this country before any publication abroad. Then Jeffreys, without any licence from Boosey, printed and published the same work in this country. Boosey brought an action against Jeffreys for the infringement of his copyright, and the action was tried before Rolfe, B. (subsequently Lord Cranworth), who directed the jury, in accordance with the decision in Boosey v. Purday, to find a verdict for the defendant Jeffreys. The matter came, on bill of exceptions, before the Court of Exchequer Chamber. That tribunal pronounced the direction given by the judge at the trial, to be wrong. A writ of error was then brought in the House (a) 2 Sim. 240. (b) See Ollendorf v. Black (4 De G. & S. 209). (c) See the statement submitted to the judges (4 H. L. Cas. 843). PART I judges. of Lords, where the question was argued at great length, CHAPTER III and the judges were asked to deliver their opinions, which ten of them did in an elaborate and exhaustive manner and at considerable length. Several questions were submitted to them by the House of Lords, but we have only to deal at present with one of the topics that engaged their attention, i.e., whether a foreigner who is not resident here at the time of the publication here of a work composed by him has any copyright in such work. On this subject the judges were divided in opinion, as might have been expected from the opposite decisions which their respective courts had already pronounced. Four judges were of one opinion, and six of Opinions of the another. Williams, Erle, Wightman, Maule, Coleridge, and Crompton, JJ., pronounced in favour of the proposition that a foreign author might gain an English copyright by publishing in England before any publication abroad, though resident abroad at the time of publication, on the grounds that there were no words in the Act, 8 Anne, c. 19 (the first Copyright Act), which confines its benefits to British subjects, by birth or residence, though the context and other provisions of the Act showed that the publication must be British; that the title of the Act ("An Act for the encouragement of Learning, &c.,") did not require such a construction of its provisions, and Parliament might legislate for foreigners in respect of the legal consequences in Great Britain of an act done there; that the nature of the property was analogous to property in other personalty, and that an alien's copyright was analogous to the right which he possessed while residing abroad to prohibit the publication here of words defamatory of his character; (a) that to limit the Act of Anne to native authors would be to lessen its beneficial operation; that first publication in England of a work by a foreign author was not a matter ultra vires, therefore, the municipal law might deal with it; that the gift by Parliament of copyright to a foreign author publishing in this country was within the province of Parliament, it was a dealing with British interests and a legislation for British persons; that it would be absurd to lay down the doctrine that a foreign author should have no copyright if he remained at Calais whilst his work was being published in England, but that he should gain that copyright if he crossed over to Dover, and there gave directions for and awaited the publication of his work; and the following harsh consequence would also result from the doctrine of the necessary presence in the United Kingdom of the foreign author at the time of (a) Pisani v. Lawson (6 Bing. N. C. 90). |