Encyclopædia Britannica, Ninth Edition/Copyright
COPYRIGHT is the exclusive right of multiplying for sale copies of works of literature or art, allowed to the author thereof or his assignees. As a recognized form of property it is, compared with others, of very recent origin, being in fact the result of the facility for multiplying copies created by the discovery of printing and kindred arts. Whether it was recognized at all by the common law of England was long a legal question of the first magnitude,—and the reasons for recognizing it, and the extent of the right itself, are not quite clear from controversy even now. The short paragraph in Blackstone may still be read with interest. He thinks that “this species of property, being grounded on labour and invention, is more properly reducible to the head of occupancy than any other, since the right of occupancy itself is supposed by Mr Locke and many others to be founded on the personal labour of the occupant.” But he speaks doubtfully of its existence,—merely mentioning the opposing views, “that on the one hand it hath been thought no other man can have a right to exhibit the author's work without his consent, and that it is urged on the other hand that the right is of too subtle and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.” He notices that the Roman law adjudged that if one man wrote anything on the paper or parchment of another, the writing should belong to the owner of the blank materials, but as to any other property in the works of the understanding the law is silent, and he adds that neither with us in England hath there been (till very lately) any final determination upon the rights of authors at the common law.
The nature of the right itself, and the reasons why it should be recognized in law, have from the beginning been the subject of bitter dispute. By some it has been described as a monopoly, by others as a kind of property. Each of these words covers certain assumptions from which the most opposite conclusions have been drawn. As a monopoly it is argued that copyright should be looked upon as a doubtful exception to the general law regulating trade, and should at all events be strictly limited in point of duration. As property, on the other hand, it is claimed that it should be perpetual. There would appear to be no harm in describing copyright either as property or monopoly, if care be taken that the words are not used to cover suppressed arguments as to its proper extent and duration. Historically, and in legal definition, there would appear to be no doubt that copyright, as regulated by statute, is a monopoly. The Parliamentary protection of works of art for the period of fourteen years by the 8 Anne c. 19 and later statutes appears, as Blackstone points out, to have been suggested by the exception in the Statute of Monopolies, 21 James I. c. 3. The object of that statute was to suppress the royal grants of exclusive right to trade in certain articles, and to reassert in relation to all such monopolies the common law of the land. Certain exceptions were made on grounds of public policy, and among others it was allowed that a royal patent of privilege might be granted for fourteen years “to any inventor of a new manufacture for the sole working or making of the same.” Copyright, like patent right, would be covered by the legal definition of a monopoly. It is a mere right to prevent other people from manufacturing certain articles. But objections to monopolies in general do not apply to this particular class of cases, in which the author of a new work in literature or art has the right of preventing others from manufacturing copies thereof and selling them to the public. The rights of persons licensed to sell spirits, to hold theatrical exhibitions, &c., are also of the nature of monopolies, and may be defended on special grounds of public policy. The monopoly of authors and inventors rests on the general sentiment underlying all civilized law, that a man should be protected in the enjoyment of the fruits of his own labour.
The first Copyright Act in England is 8 Anne c. 19. The preamble states that printers, booksellers, and other persons were frequently in the habit 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 them and their families.” “For preventing, therefore, such practices for the future, and for the encouragement of learned men to compose and write useful books, it is enacted that the author of any book or books already printed, who hath not transferred to any other the copy or copies of such book or books in order to print or reprint the same, shall have the sole right and liberty of printing such book or books for the term of one-and-twenty years, and that the author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee, or assignees, shall have the sole liberty of printing and reprinting such book or books for the term of fourteen years, to commence from the day of first publishing the same, and no longer.” The penalty for offences against the Act was declared to be the forfeiture of the illicit copies to the true proprietor, and the fine of one penny per sheet, half to the Crown, and half to any person suing for the same. “After the expiration of the said term of fourteen years the sole right of printing or disposing of copies shall return to the authors thereof, if they are then living, or their representatives, for another term of fourteen years.” The last provision points to a particular view of the nature of copyright, to which we shall call attention further on. To secure the benefit of the Act registration at Stationers Hall was necessary. In section 4 is contained the provision that if any person thought the price of a book “too high and unreasonable,” he might complain to the archbishop of Canterbury, the lord chancellor, the bishop of London, the chiefs of the three courts at Westminster, and the vice-chancellors of the two universities in England, and to the lord president, lord justice general, lord chief barcn of the Exchequer, and the rector of the college of Edinburgh in Scotland, who may fix a reasonable price. Nine copies of each book were to be provided for the royal library, the libraries of the universities of Oxford and Cambridge, the four Scotch universities, Sion College, and the faculty of advocates at Edinburgh. The copyright of the universities was not to be prejudiced by the Act.
It was believed for a long time that this statute had not interfered with the rights of authors at common law. Ownership of literary property at common law appears to have been recognized in some earlier statutes. The Licensing Act, 13 and 14 Car. II. c. 33, prohibited the printing of any work without the consent of the owner on pain of forfeiture, &c. This Act expired in 1679, and attempts to renew it were unsuccessful. The records of the Stationers' Company show that the purchase and sale of copyrights had become an established usage, and the loss of the protection, incidentally afforded by the Licensing Act, was felt as a serious grievance, which ultimately led to the statute of Anne. That statute, as the judges in Millar v. Taylor pointed out, speaks of the ownership of literary property as a known thing. One of the petitions in support of the proposed legislation in 1709 states that by common law a bookseller can recover no more costs than he can prove damages. “Besides,” it continues, “the defendant is always a pauper, and so the plaintiff must lose his costs of suit. No man of substance has been known to offend in this particular; nor will any ever appear in it.” Therefore the confiscation of counterfeit properties is prayed for. And many cases are recorded in which the courts protected copyrights not falling within the periods laid down by the Act. Thus in 1735 the master of the Rolls restrained the printing of an edition of the Whole Duty of Man, published in 1657. In 1739 an injunction was granted by Lord Hardwicke against the publication of Paradise Lost, at the instance of persons claiming under an assignment from Milton in 1667. The question, however, was raised in the case of Millar v. Taylor (4 Burrow, 2303) in 1769, in which the plaintiff, who had purchased the copyright of Thomson's Seasons in 1729, claimed damages for an unlicensed publication thereof by the defendant in 1763. The jury found that before the statute it was usual to purchase from authors the perpetual copyright of their works. Three judges, among whom was Lord Mansfield, decided in favour of the common law right; one was of the contrary opinion. The majority thought that the Act of Anne was not intended to destroy copyright at common law, but merely to protect it more efficiently during the limited periods. Millar v. Taylor, however, was speedily overruled by the case of Donaldson v. Beckett in the House of Lords in 1774. The judges were called upon to state their opinions. A majority (seven to four) were of opinion that the author and his assigns had at common law the sole right of publication in perpetuity. A majority (six to five) were of opinion that this common law right had been taken away by the statute of Anne, and a term of years substituted for the perpetuity. Lord Mansfield did not deliver an opinion, as it was unusual for a peer to support his own judgment on an appeal to the Lords. Lord Camden argued against tho existence of a common law right, and on hie motion, seconded by the lord chancellor, the decree of the court below was reversed. The decision appears to have taken the trade by surprise. Many booksellers had purchased copyrights not protected by the statute, and they now petitioned Parliament to be relieved from the consequences of the decision in Donaldson v. Beckett. A bill for this purpose actually passed the House of Commons, but Lord Camden's influence succeeded in defeating it in the House of Lords. The university copyrights were, however, protected in perpetuity by an Act passed in 1775. The arguments in the cases above mentioned raise the fundamental question whether there can be any property in literary works, and are really arguments for and against the desirability of recognizing the rights on general principles. Lord Camden was the great opponent of copyright, both as a legislator and as a judge. His sentiments may be judged by his answer to the plea that copyright was a reward to men of genius: “Glory is the reward of science, and those who deserve it scorn all meaner views. I speak not of the scribblers for bread, who teaze the press with their wretched productions. Fourteen years aro too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, and Locke instructed and delighted the world. When the bookseller offered Milton five pounds for his Paradise Lost, he did not reject it and commit his poem to the flames, nor did he accept the miserable pittance as the reward of his labour; ho knew that the real price of his work was im mortality, and that posterity would pay it.”
The battle of copyright at this time appears to have been fought mainly in the interests of the booksellers, and more particularly of the London booksellers. One member presented petitions from the country booksellers, another from the booksellers of Glasgow against the Booksellers Copyright Bill. Burke supported the bill, and Fox opposed it. In both Houses the opponents of the bill denounced the booksellers vehemently. Speaking of the Stationers Company, Lord Camden said, “In 1681 we find a by-law for the protection of their own company and their copyrights, which then consisted of all the literature of the kingdom; for they had contrived to get all the copies into their own hands.” Again, owner was the term applied to every holder of copies, and the word author does not occur once in all their entries. “All our learning will be locked up in the hands of the Tonsons and Lintons of the age, who will set that price upon it their avarice chooses to demand, till tho public become their slaves as much as their hackney compilers now are. Instead of salesmen the booksellers of late years have forestalled the market, and become engrossers.” In the discussions which preceded the last Copyright Act, the interests of the authors are more prominent, but there are still curious traces of the ancient hostility to booksellers. The proceedings both in Donaldson v. Beckett and in the Booksellers' Copyright Bill are recorded at considerable length in the Parliamentary History, vol. xvii.
By the 41 Geo. III. c. 107 the penalty for infringement of copyright was increased to threepence per sheet, in addition to the forfeiture of the book. The proprietor was to have an action on the case against any person in the United Kingdom, or British dominions in Europe, who should print, reprint, or import without the consent of the proprietor, first had in writing, signed in the presence of two or more credible witnesses, any book or books, or who knowing them to be printed, &c., without the proprietor's consent should sell, publish, or expose them for sale; the proprietor to have his damages as assessed by the jury, and double costs of suit. A second period of fourteen years was confirmed to the author, should he still be alive at the end of the first. Further, it was forbidden to import into the United Kingdom for sale books first composed, written, or printed and published within the United Kingdom, and reprinted elsewhere. Another change was made by the Act 54 Geo. III. c. 156, which in substitution for the two periods of fourteen years gave to the author and his assignees copyright for the full term of twenty-eight years from the date of the first publication, “and also, if the author be living at the end of that period, for the residue of his natural life.”
 But the proprietor may not publish separately any article or review without the author's consent, nor may the author unless he has reserved the right of separate publication. Where neither party has reserved the right they may publish by agreement, but the author at the end of twenty-eight years may publish separately. Proprietors of periodical works shall be entitled to all the benefits of registration under the Act, on entering in the registry the title, the date of first publication of the first volume or part, and the names of proprietor and publisher. The interpretation clause of the Act defines a book to be every volume, part, or division of a volume, pamphlet sheet of letter-press, sheet of music, map, chart, or plan separately published. The Act is not to prejudice the rights of the universities and the colleges of Eton, Westminster, and Winchester.The Copyright Act now in force is the 5 and 6 Vict. c. 45, which repealed the previous Acts on the same subject. The principal clause is the following (§ 3):—That the copyright in every book which shall after the passing of this Act be published in the lifetime of its author shall endure for the natural life of such author, and for the further term of seven years, commencing at the time of his death, and shall be the property of such author and his assignees; provided always that if the said term of seven years shall expire before the end of forty-two years from the first publication of such book the copyright shall in that case endure for such period of forty-two years; and that the copyright of every book which shall be published after the death of its author shall endure for the term of forty-two years from the first publication thereof, and shall be the property of the proprietor of the author's manuscript from which such book shall be first published and his assigns. The benefit of the enlarged period is extended to subsisting copyrights, unless they are the property of an assignee who has acquired them by purchase, in which case the period of copyright will be extended only if the author or his personal representative agree with the proprietor to accept the benefit of the Act. By section 5 the judicial committee of the Privy Council may license the republication of books which the proprietor of the copyright thereof refuses to publish after the death of the author. The sixth section provides for the delivery within certain times of copies of all books published after the passing of the Act, and of all subsequent editions thereof, at the British Museum. And a copy of every book and its subsequent editions must be sent on demand to the following libraries:—The Bodleian at Oxford, the public library at Cambridge, the Library of the Faculty of Advocates in Edinburgh, and that of Trinity College, Dublin. The other libraries entitled to this privilege under the old Acts had been deprived thereof by an Act passed in 1836, and grants from the treasury, calculated on the annual average value of the books they had received, were ordered to be paid to them as compensation. A book of registry is ordered to be kept at Stationers' Hall for the registration of copyrights, to be open to inspection on payment of one shilling for every entry which shall be searched for or inspected. And the officer of Stationers' Hall shall give a certified copy of any entry when required, on payment of five shillings; and such certified copies shall be received in evidence in the courts as prima facie proof of proprietorship or assignment of copyright or licence as therein expressed, and, in the case of dramatic or musical pieces, of the right of representation or performance. False entries shall be punished as misdemeanours. The entry is to record the title of the book, the time of its publication, and the name and place of abode of the publisher and proprietor of copyright. Without making such entry no proprietor can bring an action for infringement of his copyright, but the entry is not otherwise to affect the copyright itself. Any person deeming himself aggrieved by an entry in the registry may complain to one of the superior courts, which will order it to be expunged or varied if necessary. A proprietor may bring an action on the case for infringement of his copy right, and the defendant in such an action must give notice of the objections to the plaintiff's title on which he means to rely. No person except the proprietor of the copyright is allowed to import into the British dominions for sale or hire any book first composed or written or printed and published in the United Kingdom, and reprinted elsewhere, under penalty of forfeiture and a fine of £10. The proprietor of any encyclopædia, review, magazine, periodical work, or work published in a series of books or parts, who shall have employed any person to compose the same, or any volumes, parts, essays, articles, or portions thereof, for publication on the terms that the copyright therein shall belong to such proprietor, shall enjoy the term of copyright granted by the Act.
The Copyright Act was the result of a Parliamentary movement conducted by Mr Sergeant Talfourd and afterwards by Lord Mahon. Talfourd's bill of 1841 proposed to extend copyright to a period of sixty years after the author's death. The proposer based his claim on the same grounds as other property rights,—which would of course, as Macaulay pointed out, go to justify a perpetual copyright, He refused to accept any shorter term than sixty years. He was answered by Macaulay in a speech full of brilliant illustration and superficial argument. If copyright is to be regarded, as Macaulay regarded it, as a mere bounty to authors,—a tax imposed upon the public for the encouragement of people to write books,—his opposition to an extended term is not only justified, but capable of being applied to the existence of the right for any period whatever. The system of bounty, or of taxation for the special benefit of any class of citizen, is condemned by the principles of political economy and the practice of modern legislation. But if copyright is defended on the same principles which protect the acquisitions of the individual in other lines of activity, the reasoning of Macaulay and the opponents of perpetuity is altogether wide of the mark. The use of the phrase perpetual copyright has caused much confusion. A perpetual copyright is precisely the same sort of right, in respect of duration, as a fee-simple in land, or an investment in consolidated bank annuities. When Macaulay therefore says, “Even if I believed in a natural right of property independent of utility and anterior to legislation, I should still deny that this right could survive the original proprietors,” his argument applies equally to property in land and in bank annuities. The original purchaser of a bank annuity acquires a right to the receipt of a certain sum every year for ever, and such right he may assign or bequeath to any body he chooses. The writer of a book, if the law recognized a perpetual copyright, would acquire an exclusive right to the profits of its publication for ever, and might assign or bequeath that right as he chose. In both cases the right survives the owner—if indeed such a phrase can properly be used at all. Again, Macaulay points out that a copyright fifty years after one's death is at the present moment comparatively worthless:—“An advantage to be enjoyed half a century after we are dead, by somebody, we know not whom, perhaps by somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action.” No doubt there is a point in the future at which a right coming into existence would for us now living be virtually worth nothing. But this is true of all rights, and not merely of the rights called copyright; and this reasoning would justify the cutting off at some point in the future of all individual rights of property whatever. The present value of a right to rent, a right to annuities, and a copyright—to arise a hundred years hence—is probably next to nothing. There may be good reasons for saying now that no such perpetuity of right ought to be recognized, that the state ought to pass a law to take for itself all profits arising out of land, and all annuities from the public funds, from and after the year 1977. The injury done to the present owners would be precisely of the same sort and extent as in the case of a copyright being cut short a hundred years hence. Macaulay asks, “Would a copyright for sixty years have roused Dr Johnson to any vigorous effort, or sustained his spirits under depressing circumstances?” A sixty years copyright, or a perpetual copyright, would have been to Dr Johnson in his last days of the same value as a sixty years lease or a fee-simple respectively of property yielding the same amount of income. Again, says Macaulay, the property would be certain to leave the author's family; the monopoly would fall into the hands of a bookseller. The same thing may be said of all property that is assignable; and if there h any good reason for preventing the assignment of property in certain circumstances, whether by a law of entail or otherwise, that reason may be urged in the case of copy right with the same force, and only with the same force, as in the case of land. The old animus against the bookseller is still apparent in such objections as the last.
A former Copyright Act, as we have already noticed, gave the author two periods of fourteen years, the second to be conditional on his surviving the first. The object of this enactment is evidently to prevent the copyright from falling into the hands of a bookseller. The legislature appears to have deemed authors incapable of managing their own affairs. To prevent them from being made the victims of unscrupulous publishers they put it out of their power to assign the entire copyright, by making the second period a mere contingency. It was forgotten that future profits have a present money value, and that if an author sells his copyright for its fair market value, as he surely may be left to do, he reaps the advantage of the entire period of copyright as completely as if he remained the owner to the end. From this point of view the condition attached to the second period was a positive hardship to the author, inasmuch as it gave him an uncertain instead of a certain interest. It is the difference between an assignable annuity for a certain period of twenty-eight years, and two assignable annuities for fourteen years—the second only to come into existence if the original annuitant survives the first period. The same fallacy lurks under Talfourd's complaint that as copyright is usually drawing towards an end at the close of the author's life, it is taken away at the very time when it might be useful to him in providing for his family. But if the period fixed is otherwise a fair period, the future of the author's family is an irrelevant consideration. He has, by supposition, the full property rights to which he is entitled, and he may sell them or otherwise deal with them as he pleases, and he will make provision for his family as other men do for theirs. Nothing short of a strict Entail Act can keep copyright, any more than other property, in his or his family's possession. The attempt to do this by making the latter portion of the period conditional has disappeared from legislation, but the same fallacy remains in the objections urged against long terms of copyright. What would be a fair term may depend on a variety of considerations, but the chance or certainty of copyrights becoming publishers property is certainly not one of them.
Macaulay's speech convinced the House of Commons, and Talfourd's bill was defeated. Lord Mahon's bill in 1842 reduced the proposed period to twenty-five years after death; Macaulay proposed forty-two as the fixed number in all cases. It was at Macaulay's suggestion that the clause against the possible suppression of books by the owners of copyright was introduced. Under a longer period of copyright the danger apprehended might possibly become a real one; at present we are not aware of any complaint having been made to the judicial committee under this section.
The preceding narrative records the changes in the law of copyright in books only. In the meantime the principle had been extended to other forms of mental work. The 8 Geo. II. c. 13 is an Act “for the encouragement of the arts of designing, engraving, and etching historical and other prints by vesting the properties thereof in the inventors and engravers during the time therein mentioned.” It gave to every person who should “invent and design, engrave, etch, or work in mezzotinto or chiaro-oscuro, or from his own works and invention should cause to be designed and engraved, etched, or worked in mezzotinto or chiaro-oscuro, any historical or other print or prints, which shall be truly engraved with the name of the proprietor on each plate and printed on every such print or prints,” a copyright for fourteen years—the period fixed by the statute of Anne,—and inflicts a penalty on those who engrave, &c., as aforesaid, without the consent of the proprietor. The 7 Geo. III. c. 38 extended the protection to those who should engrave, &c., any print taken from any picture, drawing, model, or sculpture, either ancient or modern, in like manner as if such print had been graved or drawn from the original design of such graver, etcher, or draughtsman; and in both cases the period is fixed at twenty-eight instead of fourteen years. Ten years later a further remedy was provided by giving a special action on the case against persons infringing the copyright. By the 38 Geo. III. c. 71 the sole right of making models and casts was vested in the original proprietor for the period of fourteen years.
Stage right was first protected by the 3 and 4 Will. IV. c. 15, which provided that the author (or his assignee) of any tragedy, comedy, play, opera, farce, or other dramatic piece or entertainment composed, or which should thereafter be composed, and not printed or published by the author, should have as his own property the sole liberty of representing or causing to be represented at any place of dramatic entertainment in the British dominions any such production, and should be deemed the proprietor thereof; and that the author of any such production printed and published within the ten years preceding the passing of the Act, or which should thereafter be so published, should have sole liberty of representation for twenty-eight years from the passing of the Act, or the first publication respectively, and further during the natural life of the author if he survived that period.
The publication of lectures without consent of the authors or their assignees is prohibited by 5 and 6 Will. IV. c. 65. This Act excepts from its provisions—(1) lectures of which notice has not been given two days before their delivery to two justices of the peace living within five miles of the place of delivery, and (2) lectures delivered iu universities and other public institutions. Sermons by clergy of the Established Church are believed to fall within this exception.
Musical compositions are protected by a section of the Copyright Act 5 and 6 Vic. c. 45 above mentioned. The increased period of copyright fixed by that Act is extended to the right of representing dramatic pieces and musical compositions—the first public representation or performance being the equivalent of the first publication of a book. In such cases the right of representation is not conveyed by the assignment of the copyright only.
Lithographs, hitherto a doubtful subject, were brought within the provisions relating to prints and engravings by a clause of the 15 and 16 Vict. c. 12.
Lastly, in 1862, an Act was passed, 25 and 26 Vict. c. 68, by which the author of every original painting, drawing, and photograph, and his assigns, obtained the exclusive right of copying, engraving, reproducing, and multiplying it, and the design thereof, for the term of the natural life of the author and seven years after his death. The Acts relating to copyright of designs will be noticed below.
We may now notice a few of the more important principles developed and applied by courts of justice in administering the law of copyright. One of them is that there can be no copyright in any but innocent publications.  that the courts are still disposed to enforce these principles. To refuse copyright in such cases is futile as a mode of punishment or repression, inasmuch as it directly opens up a wider circulation to the objectionable works. When the authorship of a book is misrepresented with intent to deceive the public, copyright will not be recognized.Books of an immoral or irreligious tendency have been repeatedly decided to be incapable of being made the subject of copyright. In a case (Lawrence v. Smith) before Lord Eldon, an injunction had been obtained against a pirated publication of the plaintiff's Lectures on Physiology, Zoology, and the Natural History of Man, which the judge refused to continue, “recollecting that the immortality of the soul is one of the doctrines of the Scriptures, and considering that the law does not give protection to those who contradict the Scriptures.” The same judge refused in 1822 to restrain a piracy of Lord Byron's Cain, and Don Juan was refused protection in 1823. It would appear from a recent case, arising out of a different subject matter,
The writer of private letters sent to another person may in general restrain their publication. It was urged in some of the cases that the sender had abandoned his property in the letter by the act of sending; but this was denied by Lord Hardwicke, who held that at most the receiver only might take some kind of joint property in the letter along with the author. Judge Story, in the American case of Folsom v. Marsh, states the law as follows:—“The author of any letter or letters, and his representatives, whether they are literary letters or letters of business, possess the sole and exclusive copyright therein; and no person, neither those to whom they are addressed, nor other persons, have any right or authority to publish the same upon their own account or for their own benefit.” But there may be special occasions justifying such publication.
A kind of property in unpublished works, not created by the copyright Acts, has been recognized by the courts. The leading case on the subject is Prince Albert v. Strange (2 De Gex and Smale's Reports). Copies of etchings by the Queen and Prince Albert, which had been lithographed for private circulation, fell into the hands of the defendant, a London publisher, who proposed to exhibit them, and issued a catalogue entitled A Descriptive Catalogue of the Royal Victoria and Albert Gallery of Etchings. The Court of Chancery restrained the publication of the catalogue, holding that property in mechanical works, or works of art, does certainly subsist, and is invaded, before publication, not only by copying but by description or catalogue.
The question what is a piracy against copyright has been the subject of much discussion in the courts. It was decided under the statute of Anne that a repetition from memory was not a publication so as to be an infringement of copyright. In the recent case of Reade v. Comquest the same view was taken. The defendant had “dramatized” the plaintiff's novel, and the piece was performed at his theatre. This was held to be no breach of copyright; but the circulation of copies of a drama, so taken from a copyright novel, whether gratuitously or for sale, is not allowed. Then again it is often a difficult question to decide whether the alleged piratical copyright does more than make that fair use of the original author's materials which the law permits. It is not every act of borrowing literary matter from another which is piracy, and the difficulty is to draw the line between what is fair and what is unfair. Lord Eldon put the question thus,—whether the second publication is a legitimate use of the other in the fair exercise of a mental operation deserving the character of an original work. Another test proposed is “whether you find on the part of the defendant an animus furandi—an intention to take for the purpose of saving himself labour,” No one, it has been said, has a right to take, whether with or without acknowledgment, a material and substantial portion of another's work, his arguments, his illustrations, his authorities, for the purpose of making or improving a rival publication. When the materials are open to all, an author may acquire copyright in his selection or arrangement of them. Several cases have arisen on this point between the publishers of rival directories. Here it has been held that the subsequent compiler is bound to do for himself what the original compiler had done. When the materials are thus in medio, as the phrase is, it is considered a fair test of piracy to examine whether the mistakes of both works are the same. If they are, piracy will be inferred. Translations stand to each other in the same relation as books constructed of materials in common. The animus furandi, mentioned above as a test of piracy, does not imply deliberate intention to steal; it may be quite compatible with ignorance even of the copyright work. This is shown by the case of Reade v. Lacy. The plaintiff wrote a drama called Gold, and founded on it a novel called Never too Late to Mend. The defendant dramatized the novel, his play reproducing scenes and incidents which appeared in the original play. The vice-chancellor, presuming that the defendant had a right to dramatize the novel, found that the second play was an infringement of the copyright in the first. Abridgments of original works appear to be favoured by the courts—when the act of abridgment is itself an act of the understanding, “employed in carrying a large work into a smaller compass, and rendering it less expensive.” Lord Hatherly, however, in Tinsley v. Lacy, incidentally expressed his disapproval of this feeling,—holding that the courts had gone far enough in this direction, and that it was difficult to acquiesce in the reason sometimes given that the compiler of an abridgment is a benefactor to mankind by assisting in the diffusion of knowledge. A mere selection or compilation, so as to bring the materials into smaller space, will not be a bona fide abridgment; “there must be real substantial condensation, and intellectual labour, and judgment bestowed thereon” (Justice Story.) A publication professing to be A Christmas Ghost Story, Reoriginated from the Original by Charles Dickens, Esq., and Analytically Condensed expressly for this Work, was found to be an invasion of Mr Dickens's copyright in the original. In the case of a musical composition Lord Lyndhurst held that it is piracy when the appropriated music, though adapted to a different purpose, may still be recognized by the ear. The quasi-copyright in names of books, periodicals, <fec., is founded on the desirability of preventing one person from putting off on the public his own productions as those of another. The name of a journal is a species of trade-mark on which the law recognizes what it calls a “species of property.” The Wonderful Magazine is invaded by a publication calling itself the Wonderful Magazine, New Series Improved. Bell's Life in London is pirated by a paper calling itself the Penny Bell's Life. So the proprietors of the London Journal got an injunction against the Daily London Journal, which was projected by the person from whom they had bought their own paper, and who had covenanted with them not to publish any weekly journal of a similar nature. A song published under the title of Minnie, sung by Madame Anna Thillon and Miss Dolby at Monsieur Jullien's concerts, was invaded by a song to the same air published as Minnie Dale, Sung at Jullien's Concerts by Madame Anna Thillon.
Dramatic and musical compositions, it should be observed, stand on this peculiar footing, that they may be the subject of two entirely distinct rights. As writings they come within the general Copyright Act, and the unauthorized multiplication of copies is a piracy of the usual sort. This was decided to be so even in the case of musical compositions under the Act of Anne. The Copyright Act now includes a “sheet of music” in its definition of a book. Separate from the copyright thus existing in dramatic or musical compositions is the right of representing them on the stage; this was the right created by 3 and 4 Will. IV. c. 15, above mentioned in the case of dramatic pieces. The Copyright Act, 5 and 6 Vict. c. 45, extended this right to musical compositions, and made the period in both cases the same as that fixed for copyright. And the Act expressly provides (meeting a contrary decision in the courts), that the assignment of copyright of dramatic and musical pieces shall not include the right of representation unless that is expressly mentioned. The 3 and 4 Will. IV. c. 15, prohibited representation “at any place of public entertainment,” a phrase which has been omitted in the later Act, and it may perhaps be inferred that the restriction is now more general and would extend to any unauthorized representation anywhere. A question has also been raised whether, to obtain the benefit of the Act, a musical piece must be of a dramatic character. The dramatization of a novel, i.e., the acting of a drama constructed out of materials derived from a novel, is not an infringement of the copyright in the novel, but to publish a drama so constructed has been held to be a breach of copyright (Tinsley v. Lacy, where defendant had published two plays founded on two of Miss Braddon's novels, and reproducing the incidents and in many cases the language of the original). Where two persons dramatize the same novel, what, it may be asked, are their respective rights? In Toole v. Young (9 Q. B., 523) this point actually arose. A, the author of a published novel, dramatized it and assigned the drama to the plaintiff, but it was never printed, published, or represented upon the stage. B, ignorant of A's drama, also dramatized the novel and assigned his drama to the defendant, who represented it on the stage. It was held that any one might dramatize A's published novel, and that the representation of B's drama was not a representation of A's drama. This case may be compared with Reade v. Lacy mentioned above.
For preventing the importation of pirated copies of books, the commissioners of customs are required to make out a list of books on which copyright subsists, and of which they have received notice from the owner or his agent, and such lists are to be exposed at the ports of the United Kingdom. If notice is not sent the importation of books will not be interfered with. If any one wrongfully causes a book to be entered on the custom lists, any one injured thereby may apply to a judge in chambers to have the entry expunged.
Newspapers stand at present on a somewhat peculiar footing with reference to the law of copyright. Their position was put in issue in the case of Cox v. the Land and Water Journal Company (Law Reports, 9 Eq. 324), in which the plaintiff sought to restrain the defendant from publishing a “List of Hounds” taken from plaintiff's paper—the Field. It was argued that there was no copyright in a newspaper article, or, if there were, that it was lost by non-registration. Vice-Chancellor Malins held that a newspaper is not within the copyright Acts, that therefore the rules as to non-registration do not apply, and that the proprietor of a paper acquires such a property (not copyright) in every article for which he pays under the 18th section of the Act, or by the general rules of property, as will entitle him to prohibit any other person from publishing the same thing in any other newspaper. The substantial justice of this decision is beyond impeachment, but as a matter of law it is by no means satisfactory. The right to prohibit publication is copyright and nothing else; and it is difficult to see how it can be enjoyed at all outside the Copyright Act, or how, if it is acquired in virtue of compliance with any of the provisions of the Act, it can avoid forfeiture as a penalty for non-registration. It is highly improbable that this decision would be confirmed, should the question ever come before a higher court. The property of a newspaper, i.e., the good-will of printing and publishing it, and the exclusive right to its title, are not rights of the same nature as copyright.
A special kind of perpetual copyright in various publica tions has for various reasons been recognized by the law (1) in the Crown and (2) in the universities and colleges. The various copyright Acts, including the last, except from their provisions the copyrights vested in the two English and the four Scotch universities, Trinity College, Dublin, and the colleges of Eton, Westminster, and Winchester. Crown copyrights are saved by the general principle which exempts Crown rights from the operation of statutes unless they are expressly mentioned. Among the books in which the Crown has claimed copyright are the English translation of the Bible, the Book of Common Prayer, statutes, orders of Privy Council, proclamations, almanacs, Lilly's Latin Grammar, year books, and law reports. The copyright in the Bible is rested by some on the king's position as head of the church; Lord Lyndhurst rested it on his duties as the chief executive officer of the state charged with tho publication of authorized manuals of religion. The right of printing the Bible and the Book of Common Prayer is vested in the queen's printer and the universities of Oxford and Cambridge. These copyrights do not extend to prohibit independent translations from the original. The obsolete copyright of the Crown in Lilly's Latin Grammar was founded on the fact of its having been drawn up at the king's expense. The universities have a joint right (with the Crown's patentees) of printing Acts of Parliament. Law reports were decided to be the property of the Crown in the reign of Charles II.; by Act of Parliament they were forbidden to bo published without licence from tho chancellor and the chiefs of the three courts, and this form of licence remained in use after the Act had expired. The courts still maintain their right to restrain the publication of reports of their proceedings, but on quite other grounds than those pertaining to the law of copyright. University and college copyrights are made perpetual by an Act of George III., but only on condition of the books being printed at their printing presses and for their own benefit.
The rights of foreigners under the copyright Acts produced an extraordinary conflict of judicial opinion in the English courts. A foreigner who during residence in the British dominions should publish a work was admitted to have a copyright therein. The question was whether residence at the time of publication was necessary. In Cocks v. Purday, the Court of Common Pleas held that it was not. In Boosey v. Davidson, the Court of Queen's Bench, following the decision of the Court of Common Pleas in Cocks v. Purday, held that a foreign author might have copyright in works first published in England, although he was abroad at the time of publication. But the Court of Exchequer, in Boosey v. Purday, refused to follow these decisions, holding that the legislature intended only to protect its own subjects,—whether subjects by birth or by residence. The question came before the House of Lords on appeal in the case of Boosey v. Jeffreys, in which the Court of Exchequer had taken the same line. The judges having been consulted were found to be divided in opinion. Six of them held that a foreigner resident abroad might acquire copyright by publishing first in England. Four maintained the contrary. The views of the minority were affirmed by the House of Lords (Lord Chancellor Cranworth and Lords Brougham and St Leonards). The lord chancellor's opinion was founded upon “the general doctrine that a British senate would legislate for British subjects properly so called, or for such persons who might obtain that character for a time by being resident in this country, and therefore under allegiance to the Crown, and under the protection of the laws of England.” Lord Brougham said that
“The statute of Anne had been passed for the purpose of encouraging learned men, and with that view that Act had given them the exclusive right in their publications for twenty-one years. This, however, was clear, they had no copyright at common law, for if they had there would have been no necessity for the passing of that statute. It could scarcely be said that the legislature had decided a century and a half since that an Act was to be passed to create a monopoly in literary works solely for the benefit of foreigners. In the present case he was clearly of opinion that the copyright did not exist, and therefore that foreign law should not prevail over British law where there was such diversity between the two.”
Against the authority of this case, however, must be set the opinion of two of the greatest lawyers who have occupied the woolsack in this generation—Lord Cairns and Lord Westbury. In the case of Routledge v. Low (Law Reports, 3 House of Lords, 100) Lord Cairns said,
“The aim of the legislature is to increase the common stock of the literature of the country; and if that stock can be increased by the publication for the first time here of a new and valuable work composed by an alien who has never been in the country, I see nothing in the wording of the Act which prevents, nothing in the policy of the Act which should prevent, and everything in the professed object of the Act and in its wide and general provisions which should entitle such a person to the protection of the Act, in return and compensation for the addition he has made to the literature of the country.”
And Lord Westbury said, in the same case,
“The case of Jeffreys v. Boosey is a decision which is attached to and depends on the particular statute of which it was the exponent, and as that statute has been repealed and is now replaced by another Act, with different enactments expressed in different language, the case of Jeffreys v. Boosey is not a binding authority in the exposition of this later statute. The Act appears to have been dictated by a wise and liberal spirit, and in the same spirit it should be interpreted, adhering of course to the settled rules of legal construction. The preamble is, in my opinion, quite inconsistent with the conclusion that the protection given by the statute was intended to be confined to the works of British authors. The real condition of obtaining its advantages is the first publication by the author of his work in the United Kingdom. Nothing renders necessary his bodily presence here at the time, and I find it impossible to discover any reason why it should be required, or what it can add to the merit of the first publication. If the intrinsic merits of the reasoning on which Jeffreys v. Boosey was decided be considered, I must frankly admit that it by no means commands my assent.”
These conclusions appear to follow also from the recent Naturalization Act of 1870, which enacts that real and personal property of every description may be taken, acquired, held, and disposed of by an alien in the same manner in all respects as by a natural born British subject. As the latter can acquire copyright by first publication, without residence in England, and as copyright is personal property, it would seem that an alien also must have copyright without the necessity of residence. It is quite clear, at all events, that residence in any part of the British dominions—not merely the United Kingdom—is sufficient; but the first publication must be in the United Kingdom. But the copyright once created extends to the whole of the British dominions.
Colonial copyright, however, is subject to a special Act, the 10 and 11 Vict. c. 95. Under English copyright books of the United Kingdom were protected in the colonies, and copies of them printed or reprinted elsewhere could not be imported into the colonies. At the same time books published in the colonies are not, as we have just mentioned, within the protection of the Copyright Act. By the Colonial Copyright Act, 10 and 11 Vict. c. 95, it is now enacted that when the legislative authority in any British possession makes proper provision by Act or ordinance for the protection of the rights of British authors, the Crown may, by Order in Council, suspend the prohibition against the importation, &c., of foreign reprints of English copyright books, so far as such colony is concerned, and the local Act shall thereupon come into operation. The following colonies have taken advantage of the Act:—New Brunswick, Nova Scotia, Prince Edward's Island, Bermuda, Bahamas, Barbados, Canada, St Lucia, St Vincent, British Guiana, Mauritius, Jamaica, Newfoundland, Granada, St Christopher, Antigua, Nevis, Cape of Good Hope, Natal (Shortt).
In 1875 an Act was passed to give effect to an Act of the Parliament of the Dominion of Canada respecting copyright. An Order in Council in 1868 had suspended the prohibition against the importation of foreign reprints of English books into Canada, and the Parliament had passed a Bill on the subject of copyright as to which doubts had arisen whether it was not repugnant to the Order in Council. Her Majesty in Council is therefore authorized to assent to the Canadian Bill (which is printed as a Schedule to the Act); and it is also enacted that, after the Bill comes into operation, if an English copyright book becomes entitled to Canadian copyright, no Canadian reprints thereof shall be imported into the United Kingdom, unless by the owner of the copyright. The following points in the Canadian Act are worth noting. Any person printing or publishing an imprinted manuscript without the consent of the author or legal proprietor shall be liable in damages (§ 3). Any person domiciled in Canada, or in any part of the British Possessions, or being a citizen of any country having an international copyright treaty with the United Kingdom, who is the author of any book, map, &c., tc., shall have the sole right and liberty of printing, reprinting, publishing, &c., for the term of twenty-eight years. The work must be printed and published, or reprinted or republished in Canada, whether before or after its publication else where; and the Canadian privilege is not to be continued after the copyright has ceased elsewhere. And “no immoral or licentious, or irreligious, or treasonable, or seditious literary scientific or artistic work” shall be the subject of copyright (§ 4). A further period of fourteen years will be continued to the author or his widow and children. An “interim copyright” pending publication may be obtained by depositing in the office of the minister of agriculture (who keeps the register of copyrights) a copy of the title of the work; and works printed first in a series of articles in a periodical, but intended to be published as books, may have the benefit of this interim copyright. If a copyright work becomes out of print, the owner may be notified of the Act through the minister of agriculture, who, if he does not apply a remedy, may license a new edition, subject to a royalty to the owner. Anonymous books may be entered in the name of the first publisher.
Books published in a colony stand on the same footing, so far as the United Kingdom is concerned, as books published in a foreign country. Their protection in England depends on the International Copyright Acts.
The International Copyright Acts were passed in order to give foreign authors the same sort of privilege as is accorded to English authors, on the basis of reciprocity. The principal Act is the 7 and 8 Vict. c. 12, repealing an earlier Act, 1 and 2 Vict. c. 59, and amended by 15 Vict, c. 12.
Her Majesty may, by Order in Council, grant the privilege of copyright to the authors of books, &c., first published in any foreign country to be named in such order—provided always that “due protection has been secured by the foreign power, so named in such Order in Council, for the benefit of parties interested in works first published in the dominions of Her Majesty similar to those comprised in such order.” Different provisoes maybe fixed for different countries and different classes of works protected. No right of property shall be recognized in any book, &c., first published out of Her Majesty's dominions, save such as is created by this Act. Hence British as well as foreign authors first publishing abroad, have no protection in England unless there is a convention between England and the country in which they publish under the International Copyright Act. Thus in Boucicault v. Delafield, the plaintiff had first performed a drama in New York, and afterwards registered it in England on the first day of its performance there, and now sought to have its unauthorized representation restrained. The court refused, holding that the Act 7 and 8 Vict. c. 12, § 19 says in effect that if “any person, British subject or not, chooses to deprive this country of the first representation of his work, then he may get the benefit of copyright if he can, under any arrangement which may have been come to between this country and the country which he so favours with his representation.” If there is no such treaty or arrangement, then this country has nothing more to say to him. The publication in the British dominions of unauthorized translations of works published abroad may be prohibited by the authors for a period of five years, except in the case of political articles in the newspapers, &c. Copyright in foreign works of art, prints, articles of sculpture, <tc., may also be protected under the conditions applicable to copyright in the same subjects in England. The right of representing in England dramatic pieces, etc., first performed abroad, may also be recognized in the same way. The authors of dramatic pieces first performed abroad may also acquire (under the 15 Vict. c. 12) the right to prevent the representation of any unauthorized translation of such dramatic pieces for a period not exceeding five years from the date of first publication or representation of an authorized translation. Section 6 of this Act contains the important exception that “nothing herein contained shall be so construed as to prevent fair imitations or adaptations to the English stage of any dramatic piece or musical composition published in any foreign country.” This clause has given great dissatisfaction, and it has been virtually repealed by 38 Vict. c. 12. The right to prevent translations of foreign books or dramatic pieces is subject to certain conditions enumerated in section 8—requiring registration, publication of an authorized translation within a certain time, &c. The Act requires, it seems, that the translation should give the English people the means of knowing the original as accurately as is possible by means of an English version; and in a recent case, where the authors of Frou Frou had authorized a free English version with many changes of names, &c., and considerable omissions, it was held not to be a sufficient compliance with the statute. The judge pronounced it to be an imitation or adaptation only, and said that if a true translation had been published first, the plaintiff might then have acted the “version,” and nobody else would have been allowed to act anything like it.
In all these cases, it must be remembered, the Crown can grant copyright to foreign productions, only on condition that a convention securing reciprocal rights is concluded with the foreign power in question, in terms of the International Copyright Act. The countries with which conventions have been concluded are the following: Prussia, Saxony, and other German states, in 1846 and 1847; France, 1852; Belgium, 1855; Spain, 1857: Sardinia; and Hesse Darmstadt, 1862.
An Association to Protect the Rights of Authors has recently been formed with the object of calling attention to the more glaring defects of the existing laws of copyright. The chief points noticed by this association are the loss of rights by first production out of the United Kingdom; the loss by dramatization of novels; the unfair conditions of stage-right in translations of foreign plays, and especially the hardship of the “fair adaptation” clause; the loss caused by the inefficient prohibition of pirated copies in Canada since the International Copyright Act was passed, and the absence of an international copyright treaty with the United States. Of these defects the “adaptation clause” has been repealed since the association was formed, and the Act already noticed was passed in 1875 to give effect to a new Copyright Act of the Canadian Parliament. In 1876 a royal commission was appointed to consider the whole question of home, colonial, and international copyright.
The question of international copyright between England and the United States has for sometime been the subject of active discussion among the authors and publishers of both countries. The chief opposition to a convention proceeds from various sections of the publishing trade in America. An interesting statement of the various groups of opinion on this subject in the United States, and of the attempts to frame a satisfactory International Copyright Act, will be found in an article by Dr C. E. Appleton in the Fortnightly Review for February 1877. At present a sort of customary copyright in English books is recognized by certain leading firms. When one of them has, by arrangement with the author, obtained the advance sheets of an English work, there is a tacit understanding that the others are not to reprint that particular work; but this arrangement, it appears, “is practically confined to those who are able to retaliate when the trade courtesy is violated.” These great publishers have a monopoly of the English trade, and those who would gladly become their competitors, the booksellers of the Middle and Western States, would, according to Dr Appleton, oppose any International Copyright Act which did not aid them to break down that monopoly. Some of the resolutions of a meeting of the opponents of International Copyright at Philadelphia in January 1872 are worth quoting:—
1. That thought, unless expressed, is the property of the thinker; when given to the world it is as light, free to all.
2. As property it can only demand the protection of the municipal law of the country to which the thinker is subject.
3. The author of any country, by becoming a citizen of this, and assuming and performing the duties thereof, can have the same protection that an American author has.
4. The trading of privileges to foreign authors, for privileges to be granted to Americans, is not just, because the interests of others than theirs are sacrificed thereby.
5. Because the good of the whole people, and the safety of our republican institutions, demand that books shall not be made too costly for the multitude by giving the power to foreign authors to fix their price here as well as abroad.
Copyright of designs applicable to manufactures is protected by the 5 and 6 Vict. c. 100, and subsequent Acts amending the same. Before designs in general were protected, the copyright in designs for the manufacture of linens, cottons, calicos, and muslins had been recognized. The 5 and 6 Vict. c. 100. § 3, enacts “with regard to any new and original design, whether such design be applicable to the ornamenting of any article of manufacture, or of any substance, artificial or natural or partly artificial and partly natural, and whether for the pattern, for the shape or configuration, or for the ornament thereof, and by whatever means the same may be applicable, whether by printing, painting, &c., the proprietor shall have the sole riglit of applying such design, for the terms specified in the Act, which vary according to the class of manufacture in question.” By 6 and 7 Vict. c. 65, copyright for three years was granted for designs “having reference to some purpose of utility, so far as design shall be for the shape or configuration of such article.” Registration in both cases is necessary. The period of protection varies from nine months to five years, and in certain cases an extended period may be granted by the Board of Trade. Cases under these Acts are more nearly allied to patents than to copyrights.
Copyright in Foreign States.—France.—Copyright in France is recognized in the most ample manner. Two distinct rights are secured by law 1st, the right of reproduction of literary works, musical compositions, and works of art; and 2d, the right of representation of dramatic works and musical compositions. The period is for the life of the author and fifty years after his death. After the author's death the surviving consort has the usufructuary enjoyment of the rights which the author has not disposed of in his lifetime or by will, subject to reduction for the benefit of the author's protected heirs if any. The author may dispose of his rights in the most absolute manner in the forms and within the limits of the Code Napoléon. Piracy is a crime punishable by fine of not less than 100 nor more than 2000 francs; in the case of a seller from 25 to 500 francs. The pirated edition will be confiscated. Piracy also forms the ground for a civil action of damages to the amount of the injury sustained—the produce of the confiscation, if any, to go towards payment of the indemnity (Penal Code, Art. 425-429). The piracy on French territory of works published in a foreign country is, by a decree of 28th March 1852, brought within the above provisions. “However, when a convention has been concluded with any state this treaty modifies the effects of the decree of 28th March, in so far as its provisions may be in opposition to the said decree; the prescriptions of the new convention become the special law of the parties, and the rights of the authors and artists of that state are regulated in France by the intervening convention” (Resumé of the Rights of Literary and Artistic Property in France, Longman & Co.).
The following statements regarding copyright in other European countries are abridged from Copinger's Law of Copyright (London; Stevens & Haynes, 1870):—
Prussia.—Copyright endures for the author's life, and his heirs have a terra of thirty years from his decease. When a copyright is assigned without any special stipulation, the publisher cannot issue more than one edition without the author's written permis sion. He may issue a reprint, on paying the author half the sum paid for the first issue.
Austria, by treaty with Sardinia, Tuscany, and the Papal States, gives copyright for thirty years after author's death.
Holland and Belgium.—Copyright formerly perpetual, now limited to the life of the author, and twenty years thereafter.
Denmark and Sweden.—Copyright formerly perpetual, now limited to thirty years in the former and twenty in the latter; if the publication is allowed to lapse, copyright falls to the state.
Spain.—The period is the author's life and fifty years thereafter.
Russia.—The author's life and twenty-five years, and ten years more if an edition is published within five years of the end of the first term.
Germany.—Period fixed in 1837 at ten years; but copyright for longer periods was granted for voluminous and costly works, and for the works of German poets. Among others the works of Schiller, Goethe, Wieland, &c., were protected for a period of twenty years from the date of the decree in each case. In 1845 the period was extended in all cases to the author's life and thirty years after.
Greece.—Copyright is for fifteen years from publication.
United States.—The first legislation on the subject of literary property in the United States appears at the close of the revolution. In 1783 laws were passed by Connecticut and Massachusetts securing to authors for specified periods the exclusive property in their literary productions, and prescribing penalties for its violation. Similar laws were passed by Virginia in 1785, by New York in 1786, and by other States. Under this system it was necessary for authors, in order to enjoy the benefits of protection in States other than that in which they resided, to copyright their works in each State having such laws. Authors rights therefore depended on the legislation in the several States, as there was no national law relating to copyright. In order to afford to literary property, as well as to useful inventions and discoveries, adequate protection throughout the United States by a general law, the Federal Constitution, which came into force in 1789, empowered Congress “to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Pursuant to this provision the first copyright law of the United States was passed, May 31, 1790, entitled “An Act for the Encouragement of Learning by securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of such Copies during the times therein mentioned.” This statute gave to authors, who were citizens or residents of the United States, their heirs and assigns, copyright in maps, charts, and books for fourteen years, and provided for a second term of the same duration, if the author should be living at the expiration of the first. The penalty prescribed for publishing, importing, or selling a book in violation of the Act was forfeiture of copies to the author or proprietor, “who shall forthwith destroy the same,” and the payment of 50 cents for every sheet found in possession of the offender, one-half to go to the author or proprietor, and the other half to the United States. The Act also provided a remedy against the unauthorized publication of manuscripts belonging to citizens or residents of the United States. In 1802 the provisions of the Act of 1790 were extended to “the arts of designing, engraving, and etching historical and other prints.” In 1831 the several Acts relating to copyrights were amended and consolidated by a general law, which extended the term of protection from fourteen to twenty-eight years, with provision for a renewal for fourteen years to the author, his widow or children. Musical compositions were now for the first time expressly provided for, being placed upon the same footing as books. In 1856 was passed the first statute for giving to dramatists the exclusive right of representing their plays in public, and in 1865 photographs and negatives were declared subjects of copyright in the same manner as books, engravings, &c. All statutes relating to copyright were repealed by the general law of 1870, which, with an amendment passed in 1874, now regulates the entire subject. This law may be found in the revised statutes of the United States of 1873, and the amendment in the statutes at large of 1873-74. The term of protection is the same as that under the Act of 1831. To the subjects of copyright protected by previous statutes were added paintings, drawings, chromos, statues, statuary, and models or designs intended to be perfected as works of the fine arts.
Every author or owner, native or foreign, of an unpublished literary composition or work of art has exclusive property therein at common law. Before publication, he may make of it any use which does not interfere with the rights of others. When the work is published the owner's common law rights are lost. The author or proprietor of a manuscript, if a citizen or resident of the United States, has also a statutory remedy for damages against its unlicensed publication.
In 1834 was contested in the Supreme Court of the United States the same question which had been so elaborately argued in the English case of Millar v. Taylor, decided by the Court of King's Bench in 1769, and finally settled by the House of Lords five years later in Donaldson v. Becket, viz., whether copyright in published works exists by the common law, and is therefore of unlimited duration, or is created by and wholly governed by statute. The Supreme Court, following the authority of the House of Lords, held that there was no copyright after publication except for the limited term given by the statute. Of the seven judges four concurred in this conclusion, two delivered elaborate dissenting opinions, and one was absent. This judgment has since continued to be the supreme law.
The policy of the American Government in relation to foreign authors has been far less liberal than that of England. No special arrangement for international copyright, such as subsists between Great Britain and many Continental countries, has been entered into between the United States and any foreign Government. While a foreigner in the United States is entitled to common law protection for his unpublished works, his rights after publication are determined wholly by statute. The question concerning the status of a foreign author under the copyright laws, as well as of a citizen who derives title from a foreigner, is freed from much of the doubt and difficulty that have surrounded it in the English courts. While Parliament from the reign of Anne to the present time has legislated for the benefit of “authors,” leaving to the courts to determine whether that general language is applicable to all authors or is limited to those of Great Britain, the American Congress, in all its legislation for the encouragement of literature from the Act of 1790 to that of 1870, has extended protection only to such author as may be a “citizen of the United States or resident therein.” Thus by express words is a foreigner excluded from the benefits of the statute. This language has nevertheless given rise to some discussion as to who may be regarded as a “resident.” That word has been judicially construed to mean any person domiciled in the United States with the intention of making there his permanent abode. Neither naturalization nor a formal declaration of such intention is required. No definite period of time and no specific acts are indicated as necessary to constitute such residence. The question is to be determined by the intention of the person at the time of recording his title, while his abode is in the United States, and by his acts so far as they indicate what that intention was. If at that time he intended to remain there and make the country his place of permanent abode, his home, he becomes during the continuance of that intention a resident within the meaning of the Act, though he may afterwards change his mind and return to his native land. How long such intention shall continue the courts have not determined; but if it exists bona fide at the time of recording the title, valid copyright vests, and will not be defeated by any subsequent acts or change of mind on the part of the claimant. On the other hand, if a foreign author should come to the United States intending to stay temporarily, although with that intention he should actually remain a year or ten years, he would be a mere sojourner, and would not acquire a residence within the meaning of the Act. To determine thus the intention in the mind of a person will in many cases be attended with difficulty and even with fraud. It is a question of fact for the jury, whose finding will determine the law. In case of a work composed jointly by a foreign and a native author, and copyrighted by either one or both, the copyright in the part contributed by the foreign author if it could be distinguished, would not be valid. The assignee—although a citizen—of a foreign author, can acquire no more rights under the statute than the latter has.
There is, however, nothing in the statute to prevent a citizen or resident from acquiring copyright in certain works of art which he has purchased from a foreign author. By section 4952 copyright is vested in “any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of a book, map, chart, dramatic or musical composition, engraving, cut, print, photograph, or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts.” Under this section any “proprietor,” who is a citizen or resident, might acquire copyright in a work purchased from a foreign author. But a subsequent section, 4971, declares that nothing in the Act “shall be construed to prohibit the printing, publishing, importation, or sale of any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, composed or made by any person not a citizen of the United States nor resident therein.” This language clearly disqualifies a foreigner, or any one deriving title from him, from acquiring in the United States copyright in the works mentioned. But no mention is made of paintings, drawings, chromos, statues, statuary, models, or designs which are included in the previous section. Whether this omission is intentional or otherwise cannot be determined from the Act, but in the absence of any judicial or legislative light on this point, the only sound interpretation would seem to be that if a citizen or resident of the United States, having purchased from a foreign author any work of art of these classes, should take the requisite steps to secure copyright therein, his title would be valid. A citizen of the United States may acquire copyright while temporarily resident in a foreign country.
The same liberal construction given to the word “book” by the English courts has been accepted in the United States. A brief literary composition on a single sheet may be copyrighted as a book. There is no special provision concerning copyright in an encyclopedia, review, magazine, or periodical as is prescribed by sections 18 and 19 of the 5 and 6 Vict. c. 45. Such works are protected in the same manner as books. In the absence of special agreement to the contrary, the copyright of an article contributed to a magazine or other periodical would doubtless remain with the author for all purposes which would not deprive the purchaser of any advantage arising from its publication in the magazine. The right of subsequent publication in book form would belong to the author and not to the owner of the periodical. Such publication might be made at any time after the issue of the magazine, provided the circulation of the latter was not thereby injured. In practice newspapers are not copyrighted; hence any uncopyrighted article first published in a newspaper becomes publici juris, and valid copyright could not be subsequently obtained for it. But either the entire newspaper or any article published in it may be copyrighted by a compliance with the general statutory provisions relating to books. Authors may reserve the right to dramatize or to translate their own works, by printing a notice to that effect in the book. The copyright law does not protect a title independently of the book; but a title may be registered as a trade mark, or its unlawful use may be restrained on the general principles of equity. Nor is there any provision in the copyright law, as in England, for the protection of designs for industrial products. The statute of 1874 prescribes that the words “engraving,” “cut,” and “print” shall be applied only to pictorial illustrations or works connected with the fine arts, and that no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but must be registered in the patent office.
The statute now in force grants to authors, and their executors, administrators, or assigns, copyright for twenty-eight years from the time of recording the title. At the expiration of that period the author or his widow or children may obtain an additional term of fourteen years. In order to secure copyright every applicant is required to perform three acts:—1st, before publication to transmit to the librarian of Congress in Washington a printed copy of the title of the book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph, or a description of the painting, drawing, chromo, statue, statuary, model, or design; 2d, within ten days after publication to send to the same official two copies of such book or other article, or in the case of a painting, drawing, statue, model, or design a photograph thereof; 3d, to print on the title page, or the page next following, of every copy of a book, or in the case of a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, model, or design to inscribe upon some visible portion of it, or upon the substance upon which it is mounted, the notice of entry for copyright in the form prescribed. Two forms are prescribed, either of which may be used:—1. “Entered, according to Act of Congress, in the year by , in the office of the librarian of Congress at Washington;” 2. “Copyright 18 . . by ”. The year when the copyright was entered and the name of the person, persons, or firm by whom entered are to be given. Compliance with all these conditions is essential to valid copyright. Until they are performed an action at law for infringement cannot be maintained. But equity will protect the copyright as soon as the title is recorded, and before the performance of the other two requisites. When the right is perfected an action at law may be maintained for any infringement after the recording of the title. A penalty of $25 is further prescribed for failure to deliver to the librarian of Congress, within ten days after publication, two copies of the best edition of the book, or description or photograph of the other articles above mentioned, and a copy of every subsequent edition containing substantial changes. A penalty of $100 is imposed upon any person who causes notice of copyright to be inserted in a book, or impressed upon any other article for which a copyright has not been obtained. The fee for securing copyright is 50 cents, to be paid to the librarian for recording the title. A copy of such record may be obtained for 50 cents. The librarian receives $1 for recording and certifying an assignment, and $1 for every copy of an assignment furnished, Another essential condition to valid copyright is publication, and the work must be first published in the United States; but a contemporaneous publication abroad will not prejudice the author's rights. The production must also be original and innocent in character. Copyright will not vest in an unpublished work. But the statute provides that every person who shall print or publish any manuscript, without the consent of the author or proprietor, if the latter is a citizen or resident of the United States, shall be liable for damages. There is nothing in the Act to exclude a resident assignee of a foreign author from the benefits of this provision.
Copyrights pass to heirs and are assignable in law by any instrument of writing. Every assignment must be recorded in the office of the librarian of Congress within sixty days after its execution, in default of which it becomes void as against any subsequent purchaser or mortgagee for a valuable consideration without notice.
The existing statute provides that if any person without due authority shall print, publish, or import a copyrighted book, or knowing it to be so printed, published, or imported shall sell or offer it for sale, he shall forfeit every copy to the proprietor and pay such damages as may be recovered in a civil action. In case of piracy of a map, chart, musical composition, print, cut, engraving, photograph, or chromo, the offender is made liable to forfeit the plates and every sheet copied or printed, and to pay $1 for every sheet found in his possession either printing, printed, copied, published, imported, or exposed for sale. For every pirated copy of a painting, statue, or statuary found in his possession, or which he has sold or offered for sale, the offender must pay $10. The injured person may obtain from a court of equity an injunction against the publication and sale of the pirated work, and may recover at law the damages sustained by such publication. All actions at law and suits in equity under the copyright statutes must be brought in the circuit or district courts of the United States, except in the District of Columbia or any territory where the proper tribunal is the Supreme Court. Appeal lies to the Supreme Court of the United States. All actions for forfeitures or penalties must be brought within two years after the cause of action has arisen. Redress for the invasion of common law rights in unpublished works must be sought in a State court, unless the parties to the controversy are citizens of different States, in which case the courts of the United States have jurisdiction.
Stage right in the United States.—Until 1856 there was no statute giving to dramatists control over the public representation of their plays. This want was met by the Act of August 18 of that year, which was passed expressly to confer upon the author or owner of a dramatic composition the sole liberty of performing, or causing it to be performed, in public; and any one infringing this right was made liable to damages in a sum not less than $100 for the first and $50 for every subsequent unauthorized performance. The provisions of this Act have been held to apply only to cases in which copyright was secured under the Act of 1831; and as the benefits of that law were by express words limited to citizen or resident authors, foreign dramatists acquired no rights by the statute of 1856. The Act of 1870 gives to dramatists, besides the exclusive right of publishing in print, the sole liberty of representing their dramatic compositions on the stage, and declares that any person who publicly represents a copyrighted dramatic composition, without authority, shall be liable to damages in a sum not less than $100 for the first and $50 for each subsequent performance. This right is secured by copyrighting the dramatic composition as a book and endures for the same term as does the copyright in the book. The Act must be construed as giving the sole liberty of representation only in cases where the exclusive right of publication has been secured. In other words, the copyright in the printed production is made to include the right of public representation. As the former can be acquired only by citizens and residents, foreign dramatists and their assignees, as under the Act of 1856, are excluded from the benefits of the statutes. There is no statutory provision, as in England, giving to either native or foreign dramatists the exclusive right to represent their manuscript plays. While foreign dramatists are entitled to no statutory protection whatever, their manuscript plays are protected by the common law. In this respect the rights of native and foreign dramatists are the same. Such protection ceases when the play is published. When published in print the owner's rights are lost, unless in the case of a citizen, protected by statute. Whether the authorized public performance of a manuscript play, unprotected by statutory copyright, is such a publication as will give to any one, without licence from the owner, the right either to represent it on the stage or to publish it in print, is a question which is not determined by statute, as in England, but is left entirely to the courts. It has been much discussed in several leading cases since 1860; and its importance is enhanced by the fact that many, if not most, of the dramas which American managers are expected and even required to provide for an exacting public and a critical press are from the pens of English and French playwrights. It is well settled that the public performance of a manuscript drama is not such a publication as will invalidate a copyright subsequently obtained by the author; and that no one, without leave, may publish in print, or publicly represent the play, if obtained by stenography, the use of writing, or in any other way than through the memory of one or more persons who have witnessed its lawful representation. The theory has been advanced, and has received some judicial approval, that the owner of an uncopyrighted manuscript play cannot lawfully prevent another from publicly representing it, when the latter has obtained a copy through the memory of any person who has witnessed the authorized performance. This doctrine is supported by a single case decided in the Supreme Court of Massachusetts in 1860. Its soundness has been questioned by high authority, and there is little doubt that when the direct issue shall be presented for judicial determination such unlicensed use of the play will be held to be piracy. It may be regarded as conceded that the courts would not hesitate to declare unauthorized publication in print to be an invasion of the owner's rights.
Property in unpublished musical compositions, lectures, sermons, works of arts, &c., are governed by the same principles that apply in the case of dramatic productions. There is no statute, as in England, regulating the author's rights in manuscript lectures. The writer of an unpublished letter, whether possessing literary value or not, may prevent at common law its unauthorized publication by the receiver, unless publication is necessary to protect the latter against injurious representations made by the former. (E. R.—E. S. DR.)
- Such articles must be paid for, in order to vest copyright in the proprietor of the periodical.
- Cowan v. Milbourn, Law Reports, 2 Exchequer 230, in which it was held that a contract to let a room for lectures might be broken by the lessor on finding that the proposed lectures were of an irreligious, blasphemous, and illegal character.
- The same question was decided in the same way in the recent case (Nov. 1876) of the same plaintiff against Mr Chatterton for representing “Shaughraun,” a play first brought out by plaintiff in America.
- The state of the law, as it is left by this Act, is worth noticing. By the 15 Vict. c. 12, the Queen may, by Order in Council, grant stage-right to foreign dramatists as mentioned above, and the enactments in force for protecting domestic stage rights are available for them; but nothing in the Act is to prevent fair imitations or adaptations to the English stage of foreign plays, &c. Now comes the Act of 1875, which says that in case of any such order the Queen may direct that the said section 6 shall not apply, and thereupon the 15 Vict. c. 12 “shall take effect with respect to such dramatic pieces, and to the translations thereof as if the said sixth section of the said Act were hereby repealed.” So that the Queen may repeal the sixth section in any particular case so far as to remit the question of “fair adaptations and imitations” to the common law.
- Wood v. Chart, (Law Reports, 10 Equity 204).