PART L

the publication of his works,-that a bookseller might purchase a literary work in manuscript from a foreign author CHAPTER III, resident here, yet might lose the copyright if the author should choose to leave this country and be absent from it, even without the knowledge of the bookseller, at the time of publication; nay, if the bookseller should think it best to publish the works in several volumes at several times, he might have copyright in some of the volumes and not in others-because the existence or non-existence of the right would vary with the accident of the author's being or not being in this country at the dates of the respective publications of the volumes.

Notwithstanding the foregoing very weighty reasons, the Decision of the law lords, Lords Cranworth, C., Brougham, and St. Leo- House of Lords. nards, agreed with the views expressed on this point by the minority of the judges, Alderson and Parke, B.B., Pollock, C.B., and Jervis, C.J.; and the House of Lords, reversing the decision of the Exchequer Chamber, upheld the direction given by Rolfe, B. to the jury at the original trial of the case, and thus decided, (a) that to entitle a foreigner to the copyright in any work first published by him in this country, he must be actually resident here at the time of the publication of such work, and consequently that no assignment by a foreigner, not resident here at the time of publication, can vest in a British subject a copyright in the work of the foreigner published here by that British subject.

The grounds on which the judgment of the House of Lords in this important case rested, will appear from the following extracts from the judgments delivered. Lord Cranworth, C., after recapitulating the facts, said: "It may be assumed that on the facts thus proved, the rights of Bellini, the author (if any), had been effectually transferred to Boosey, the defendant in error; and thus the important question arose, whether Bellini had by our law a copyright which he could transfer through Ricordi to Boosey, so as to entitle the latter to the protection of our laws? . . . . In the first place, it is proper to bear in mind that the right now in question-namely, the copyright claimed by the defendant in error (Boosey)-is not the right to publish or to abstain from publishing a work not yet published at all, but the exclusive right of multiplying copies of a work already published, and first published by the defendant in error (Boosey) in this country. Copyright thus defined, if not the creature, as I believe it to be, of our statute law, is now entirely regulated by it, and, therefore, in determining its limits, we must look (a) See Routledge v. Low (post, p. 31).

PART I.

exclusively to the statutes on which it depends. . . . The CHAPTER III. substantial question is whether under the term 'author

(in 8 Anne, c. 19) we are to understand the Legislature as referring to British authors only, or to have contemplated all authors of every nation. My opinion is that the statute must be construed as referring to British authors only. Prima facie, the Legislature of this country must be taken to make laws for its own subjects exclusively, and where, as in the statute now under consideration, an exclusive privilege is given to a particular class at the expense of the rest of Her Majesty's subjects, the object of giving that privilege must be taken to have been a national object, and the privileged class to be confined to a portion of that community, for the general advantage of which the enactment was made. When I say that the Legislature must, primâ facie, be taken to legislate only for its own subjects, I must be taken to include under the word 'subjects,' all persons who are within the Queen's dominions, and who thus owe to her a temporary allegiance. I do not doubt but that a foreigner resident here, and composing and publishing a book here, is an author within the meaning of the statutehe is within its words and spirit. . . . Copyright, defined to mean the exclusive right of multiplying copies, commences at the instant of publication; and if the author is at that time in England, and while here he first prints and publishes his work, he is, I apprehend, an author within the meaning of the statute, even though he should have come here solely with a view to the publication. . . . . But if at the time when copyright commences by publication the foreign author is not in this country, he is not, in my opinion, a person whose interests the statute meant to protect. I do not forget the argument that from this view of the law the apparent absurdity results, that a foreigner having composed a work at Calais, gains a British copyright if he crosses to Dover, and there first publishes it, whereas he would have no copyright if he should send it to an agent to publish for him. I own that this does not appear to me to involve any absurdity. It is only one among the thousand instances that happen, not only in law, but in all the daily occurrences of life, showing that whenever it is necessary to draw a line, cases bordering closely on either side of it are so near to each other, that it is difficult to imagine them as belonging to separate classes; and yet our reason tells us they are as completely distinct as if they were immeasurably removed from each other. . . . . If the object of the enactment was to give, at the expense of British subjects, a premium to those

....

PART I

who laboured, no matter where, in the cause of literature, I see no adequate reason for the exception, which it is CHAPTER III. admitted on all hands we must introduce, against those who not only compose, but first publish abroad. If we are to read the statute (a) as meaning by the word 'author' to include foreign authors living and composing abroad,' why are we not to put a similar extended construction on the words 'first published?' And yet no one contends for such an extended use of these latter words. Some stress

was laid on the supposed analogy between copyright and the right of a patentee for a new invention; but the distinction is obvious. The Crown, at common law had, or assumed to have, a right of granting to any one, whether native or foreigner, a monopoly for any particular manufacture. This was claimed as a branch of the royal prerogative, and all which the statute, 21 Jac. 1, c. 3, s. 6, did was to confine its exercise within certain prescribed limits; but it left the persons to whom it might extend untouched. The analogy, if pursued to its full extent, would tend to show that first publication abroad ought not to interfere with an author's right in this country. For certainly it is no objection to a patent that the subject of it has been in public use in a foreign country. . . . My opinion is founded on the general doctrine, that a British statute must primâ facie be understood to legislate for British subjects only, and that there are no special circumstances in the statute of Anne, relating to authors, leading to the notion that a more extended range was meant to be given to its enactments." The reasons assigned by Lord Brougham were of a similar nature. Lord St. Leonards, in the course of his judgment, said, "I venture to submit to your lordships that it is quite clear, as an abstract proposition, that an Act of Parliament of this country, having within its view a municipal operationhaving, as in this particular case, a territorial operation, and being therefore limited to the kingdom-cannot be considered to provide for foreigners, except as both statute and common law do provide for foreigners when they become resident here, and owe at least a temporary allegiance to the Sovereign, and thereby acquire rights just as other persons do; not because they are foreigners, but because, being here, they are here entitled, in so far as they do not break in upon certain (a) The part of the statute 8 Arne, c. 19, referred to is this: "The author of any book or books already composed and not printed and published, or that shall hereafter be composed, and his assignee or assigns, shall have the sole liberty of printing and reprinting such book and books for the term of fourteen years, to commence from the day of the first publishing the same, and no longer."

PART L

rules, to the general benefit of the law for the protection of CHAPTER III their property, in the same way as if they were natural born subjects... It has been decided, and it is no longer to be disputed, nor is it attempted to be disputed, that the first publication must take place here; but that is only by impli cation from the provisions in the Act of Parliament. Well, then, if the first publication must take place here, must the printing likewise take place here? There is no such actual provision: it is not said so, but I apprehend it is implied; I think it is clearly implied from the provisions of the Act, that the printing must take place here. . . . . If it is clear as I apprehend it to be, that, in the first place, a book which is a foreign composition must be first published here, and, secondly, that it must be printed here; would it not necessarily and naturally follow that the man himself should be here to superintend that publication. Is it not a natural inference from the Act of Parliament, which does not expressly provide for either of the foregoing conditions, that it implies that the man shall be here to superintend his publication, seeing that it shall not only be first published here, but that it shall also be printed here? Nothing could be further from the intention of the Legislature at the time that this Act of Parliament was passed than that a foreigner should be enabled to import books printed abroad; but unless you put that construction upon the Act of Parliament, he would have been able to import books printed abroad, and bringing them here, to have a copyright in their publication. That would plainly be directly contrary to the intention of the Legislature. I think, therefore, that gives us an easy means of interposition as to the meaning of the statute, with regard to the residence of the publisher. . . . . If there is no common law right, which in my opinion there clearly is not, (a) and if the statute does not apply to foreigners, quâ foreigners (although I entirely, of course, admit, that when a man owes a temporary allegiance, he is entitled to the benefit of it) then there being no common law right, it would be a new right given by Act of Parliament, and the foreigner must bring himself within the terms of that Act of Parliament in order to enjoy it; and to do so, in my apprehension, he must be able to predicate of himself that he is a subject of these realms, at least for the time being."

How far Jeffreys v. Boosey is a

The authority of Jeffreys v. Boosey as a decision binding binding autho- at the present day has been much shaken by the opinions

rity.

(a) It must be remembered that the common law right of which the existence is denied here and elsewhere in the judgments in this case, is a common law copyright after publication.

PART I.

expressed by Lords Cairns and Westbury in Routledge v. Low (a) to the effect that no matter where the author CHAPTER III. resided at the time of publication, he was entitled to copyright if he first published in the United Kingdom. It was not necessary, however, expressly to decide the point in that case, as the authoress of the book in question resided in Canada at the time of publication here; and two other law lords (Lords Cranworth and Chelmsford) adhered to the view of the law laid down in Jeffreys v. Boosey.

Cairns.

Lord Cairns stated the reasons for his opinion thus: Opinion of Lord "The intention of the Act is to obtain a benefit for the people of this country by the publication to them of works of learning, of utility, of amusement. This benefit is obtained, in the opinion of the Legislature, by offering a certain amount of protection to the author, thereby inducing him to publish his work here. This is, or may be, a benefit to the author, but it is a benefit given, not for the sake of the author of the work, but for the sake of those to whom the work is communicated. 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 never has 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." Lord Westbury said, "The case of Jeffreys v. Boosey is a Opinion of Lord 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. On the contrary, it seems to contain an invitation to men of learning in every country to make the United Kingdom the place of first (a) L. Rep. 3 H. L. Cas. 100; 18 L. T. N. S. 874; 37 L. J. 454, Ch.

Westbury.