PART I.

Messrs. Routledge from publishing an edition of the same CHAPTER III Work; and on appeal the Lords Justices upheld his decision. Lord Justice Turner observed: "It was said for the defendants that the same word author,' which is contained in this statute, was also contained in the statute of Anne, the first Copyright Act, and that strong opinions were expressed by the judges, and by the law lords in the House of Lords, in the case of Jeffreys v. Boosey, that the word 'author' in the statute of Anne means an author resident in England at the time of publication, and that the same construction ought to be given to the word 'author' in the Stat. 5 & 6 Vict. c. 45, now under our consideration. But there is no provision in the statute of Anne that the statute shall extend to the colonies, and in the statute we are now considering it is expressly so provided." It was also urged on behalf of the defendants that 5 & 6 Vict. c. 45, did not extend to colonies having legislatures of their own, as Canada; but the Lord Justice held that the word "colonies," in the absence of a context to control it, must extend to all colonies. This decision was affirmed by the House of Lords. (a)

Publication in
United Kingdom

Even if a statute of the colony in which the alien resides at the time of the publication of his work here, prevents an alien acquiring a copyright in a work published by him in the colony during his residence there, that would make no difference as to his title to copyright here. An alien has rights as a subject of the Crown whilst residing in one of its colonies, as well as rights as a subject of the colony; and though his civil rights within the colony depend upon the colonial laws, his civil rights beyond the limit of the colony are independent of those laws. "Every alien," said Turner, L.J., in the case last referred to, "coming into a British colony becomes temporarily a subject of the Crown, bound by, subject to, and entitled to the benefit of, the laws which affect all British subjects. He has obligations both within and beyond the colony into which he comes. As to his rights within the colony, he may well be bound by its laws; but as to his rights beyond the colony he cannot be affected by those laws, for the laws of a colony cannot extend beyond its territorial limits."

Publication in the United Kingdom is indispensable to indispensable, copyright. That this was the intention of the Legislature is shown by various provisions of the statute; besides which "it would be very inconsistent with the usual practice of the Imperial Parliament to create a system of copyright law

(a) See L. Rep. 3 Eng. & Ir. App. 100; 18 L. T. N. S. 874; 37 L. J. 454, Ch.

for all the colonies and dependencies in the empire, many of which have representative institutions of their own, without any consultation with those colonies or dependencies, and without any consideration whether a uniforin and arbitrary ystem, such as that introduced by this Act, would be suitable to the varied circumstances, states of civilisation, and ystems of jurisprudence and judicature in these different lonies and possessions." (a)

But when copyright once exists, the area over which it extends is the whole of the British dominions.(b)

PART L

CHAPTER III.

first
abroad.

It is important to observe that by the International Copy- British subject right Act (7 & 8 Vict. c. 12, s. 19) a British subject who publishing first publishes abroad is, equally with a foreigner, deprived f any copyright save such as he may acquire under that At; and if there is no treaty giving effect to the Act in his particular case, he has no copyright in this country. This was so decided by Wood, V.C., in Boucicault v. Delafield, (c)

which case the plaintiff prayed for an injunction to strain the defendant from producing a drama ("The Colleen Bawn") written by the plaintiff, and as it appeared n the hearing of the case, represented by the plaintiff at New York prior to its being represented in England. The Vice-Chancellor refused to grant the injunction and hsmissed the bill with costs, being of opinion that the words of the 19th section of 7 & 8 Vict. c. 12, took away whatever rights the plaintiff might otherwise have had. If he had first represented his drama here, he would have been entitled to the provisions of the Dramatic Copyht Act. Then 7 & 8 Vict. c. 12, was passed, enabling Her Masty to make arrangements conferring on other nations. - privileges accorded to all people who first publish their wks here. If the plaintiff had this sort of double right

the very thing which the 7 & 8 Vict. c. 12, was ten led to extinguish. The statute says in effect (sect. 19) at if any person, British subject or not, chooses to deprive entry of the advantage of the first representation of work, then he may get the benefit of copyright, if he Ca, under the arrangement which may have been come to

int to 7 & 8 Vict. c. 12, between this country and country which he so favours with his representation; t if he chooses to publish his performance in a country : h has not entered into any treaty or made any such agement with regard to copyright, then this country has -4). Per Lord Cairns, C., Routledge v. Low (L. Rep. 3 Eng. & Ir. App. LT. N. S. 874; 37 L.J. 454, Ch.) (5) Routledge v. Low, ubi supra. , 1 H. & M. 597; 9 L. T. N. S. 709; 33 L. J. 38, Ch.

PART L

nothing more to say to him; he must be taken to have elected CHAPTER III under which of the two statutes with respect to copyright he wishes to come, by performing his work in one country instead of the other, and he is thereby excluded from all advantage of publishing in the other." (a)

Unpublished works.

The property which an author has in his unpublished ideas embodied in a tangible shape being independent of statute (b) it should seem that an alien friend might prevent the unauthorised publication here of any of his unpublished works.(c)

Besides the copyright which may be possessed by individual authors and proprietors, there is also a copyright enjoyed in certain works by the Crown, and in others by the Universities, to which attention will now be directed.

Crown copy right exists.

CHAPTER IV.

CROWN AND COLLEGE COPYRIGHT IN BOOKS.

Works in which THE Copyright claimed by the Crown extended to the English Translation of the Bible, the Book of Common Prayer, the Statutes, Orders of the Privy Council, and State Proclamations; also to Almanacs, Lilley's Latin Grammar, the Yearbooks and reports of judicial proceedings. The exclusive right of printing these was held to be vested in the King; and he granted letters patent authorising others to print and publish them. Some part of this claim has now become obsolete, but a large part still remains unquestioned, and has been recognized in various decisions of courts, both of Common Law and Equity. The claim of the Crown to this copyright has by some been based upon a right of property similar to the right of a private author or his assigns; (d) by others it has been treated as grounded on naked prerogative and reasons of state policy. It is impossible to decide the point satisfactorily, nor is the matter one of importance.

(a) Per Wood, V.C. (1 H. & M. 597; 9 L. T. N. S. 709; 33 L. J. 38, Ch.)

(b) See Prince Albert v. Strange (2 De G. & S. 652; 1 Mac. & G. 25). (c) It has been held in America that the sect. (9) of the Act of Congress (Act of 1831, c. 16) which gave redress for the unauthorised printing or publishing of manuscripts, operated in favour of a resident of the United States who had acquired the proprietorship of an unprinted literary composition from a non-resident alien author: (Keene v. Wheatley, Amer. Law Reg. 45, cited Law's Digest of Patent, Copyright, and Tradesmark Cases, p. 256.)

(d) E.g., Lord Mansfield in Millar v. Taylor (4 Burr. 2401).

PART I.

CHAPTER IV.

The English translation of

Blackstone (a) rests the claim of the Crown to copyright in English translations of the Bible on two grounds, that the translation was made at the expense of the Crown, and that the Sovereign is the head of the Church. Lord Mansfield (b) regarded it as a mere right of property founded on the Bib. the purchase of the translation by the King in the time of James I. Lord Lyndhurst (c) refers it to another consideration, namely, the character of the duty (carrying with it a corresponding prerogative) imposed on the Sovereign as the chief executive officer of the government to superintend the publication of the works upon which the established doctrines of religion are founded, a duty extending to Scotland as well as England. On whatever ground the claim rests, its validity seems now beyond dispute, though the reported cases on the subject are between rival patentees, of whom neither would raise the question of the validity of their patents as against the public in general. An Irish Lord Chancellor, indeed, in 1794, doubted the right of the Crown to grant a monopoly of this kind, and held that a patentee claiming an exclusive right of printing Bibles must establish his patent at law before he could have an injunction in equity.() But Lord Eldon, in 1802, granted an injunction to restrain the King's printer in Scotland, who had a patent for the sale of Bibles there, from printing or selling Bibles in England. (e) And in 1828, the House of Lords held that the King's printers in Scotland had, by virtue of their patent, a right to prevent the importation from England by others. of Bibles and other works contained in their patent.(ƒ)

The exclusive right of printing and publishing and selling copies of the Bible, New Testament, and Book of Common Prayer, is vested by letters patent of the 13 Eliz. in the Universities of Oxford and Cambridge, concurrently with the Queen's printer, and no one else may print or publish in England any such copies, or sell in England any other copies of the said books than such as have been printed and published by or for the Universities and the Queen's printer, or one of them.(g)

(a) 2 Steph. Black. 39; see also the remarks of Yates, J., in Millar v. Taylor (4 Burr. 2382).

(b) 4 Burr. 2405.

(e) Manners v. Blair (3 Bligh, N. S. 402); see also the opinions of Lord Camden in Donaldson v. Becket (4 Burr. 2408), and of Skinner, (B. in Eyre v. Carnan (6 Bac. Abr. Prer. F. p. 509).

(1) Grierson v. Jackson (Ridg. Ir. T. R. 304).

(e) Universities of Oxford and Cambridge v. Richardson (6 Ves. 689). (1) Manners v. Blair (3 Bligh, N. S 391).

(2) Universities of Oxford and Cambridge v. Richardson (ubi supra).

TART I

The Book of

It seems to be agreed that the Bible may be printed by others than those having the patent right, if it be accompanied by bona fide notes. (a)

There is no Crown copyright in the Hebrew Bible, the Greek Testament, or the Septuagint. They are all common, according to Lord Mansfield; (b) and, said that learned judge, " if any man should turn the Psalms, or the writings of Solomon or Job into verse, the King could not stop the printing or the sale of such a work. It would be the author's work."

Nor has any attempt ever been made to prevent any person from publishing a translation of one book, or of a part of the Bible, from the original text, and enjoying a copyright in his production. (c)

The Bible patent of the Queen's printer for Scotland expired in 1839. The patent of the Queen's printer for England has lately been renewed during pleasure, notwithstanding the recommendation of a committee of the House of Commons that the exclusive privilege of printing and publishing English translations of the Bible should not be renewed.

The claim of the Crown to the exclusive publication of the Common Prayer. Book of Common Prayer is rested on similar grounds--the duty and prerogative of the Sovereign as head of the Church and as chief executive magistrate, to superintend the publication of books of divine service. (d) It seems that down to the 34th year of Henry VIII. the different books used in divine service were not printed here, but were imported from abroad. A patent was granted in that year for the sole printing of such books, and in the first year of Elizabeth the exclusive right of printing books of divine service was inserted in the same patent with the right of printing the Acts of Parliament, which had some time before been granted, and from that time they were regularly enjoyed together by the King's patentee. In 1781, in the case of (a) 2 Ev. Stat. p. 19, note 11.

(c) Godson on Patents and Copyright, 442.

(b) 4 Burr. 2405.

(d) In Manners v. Blair (3 Bligh, N. S. 391), it was contended that as to the Book of Common Prayer the King could not in Scotland confer the exclusive right of printing it on his printer there, as the King was not the supreme head of the Scotch Church as he was of the English; and the Scotch court from which the appeal was brought to the House of Lords seems to have been of that opinion. Lord Lyndhurst, however, in moving the judgment of the House of Lords, rested the claim of the Crown to copyright in the Prayer Book as well as the Bible on the executive character of the Sovereign--a character which he has equally in Scotland and England; and the patent of the King's printer in Scotland was held valid as to the Book of Common Prayer as well as the translation of the Bible.