Encyclopædia Britannica, Ninth Edition/Copyright

COPYRIGHT is the exclusive right of multiplying forsale copies of works of literature or art, allowed to theauthor thereof or his assignees. As a recognized form ofproperty it is, compared with others, of very recent origin,being in fact the result of the facility for multiplying copiescreated by the discovery of printing and kindred arts.Whether it was recognized at all by the common law ofEngland was long a legal question of the first magnitude,—andthe reasons for recognizing it, and the extent of theright itself, are not quite clear from controversy even now.The short paragraph in Blackstone may still be read withinterest. He thinks that “this species of property, beinggrounded on labour and invention, is more properlyreducible to the head of occupancy than any other, since theright of occupancy itself is supposed by Mr Locke andmany others to be founded on the personal labour of theoccupant.” But he speaks doubtfully of itsexistence,—merely mentioning the opposing views, “that on the onehand it hath been thought no other man can have a rightto exhibit the author's work without his consent, and thatit is urged on the other hand that the right is of too subtleand unsubstantial a nature to become the subject ofproperty at the common law, and only capable of beingguarded by positive statutes and special provisions of themagistrate.” He notices that the Roman law adjudgedthat if one man wrote anything on the paper or parchmentof another, the writing should belong to the owner of theblank materials, but as to any other property in the worksof the understanding the law is silent, and he adds thatneither with us in England hath there been (till verylately) any final determination upon the rights of authorsat the common law.

The nature of the right itself, and the reasons why itshould be recognized in law, have from the beginning beenthe subject of bitter dispute. By some it has beendescribed as a monopoly, by others as a kind of property.Each of these words covers certain assumptions from whichthe most opposite conclusions have been drawn. As amonopoly it is argued that copyright should be looked uponas a doubtful exception to the general law regulating trade,and should at all events be strictly limited in point ofduration. As property, on the other hand, it is claimedthat it should be perpetual. There would appear to be noharm in describing copyright either as property ormonopoly, if care be taken that the words are not used tocover suppressed arguments as to its proper extent andduration. Historically, and in legal definition, there wouldappear to be no doubt that copyright, as regulated bystatute, is a monopoly. The Parliamentary protection ofworks of art for the period of fourteen years by the 8 Annec. 19 and later statutes appears, as Blackstone points out,to have been suggested by the exception in the Statute ofMonopolies, 21 James I. c. 3. The object of that statutewas to suppress the royal grants of exclusive right to tradein certain articles, and to reassert in relation to all suchmonopolies the common law of the land. Certain exceptionswere made on grounds of public policy, and amongothers it was allowed that a royal patent of privilege mightbe granted for fourteen years “to any inventor of a newmanufacture for the sole working or making of the same.”Copyright, like patent right, would be covered by the legaldefinition of a monopoly. It is a mere right to preventother people from manufacturing certain articles. Butobjections to monopolies in general do not apply to thisparticular class of cases, in which the author of a new workin literature or art has the right of preventing others frommanufacturing copies thereof and selling them to thepublic. The rights of persons licensed to sell spirits, tohold theatrical exhibitions, &c., are also of the natureof monopolies, and may be defended on special groundsof public policy. The monopoly of authors and inventorsrests on the general sentiment underlying all civilized law,that a man should be protected in the enjoyment of thefruits of his own labour.

The first Copyright Act in England is 8 Anne c. 19.The preamble states that printers, booksellers, and otherpersons were frequently in the habit of printing, reprinting,and publishing “books and other writings without theconsent of the authors or proprietors of such books andwritings, to their very great detriment, and too often to theruin of them and their families.” “For preventing, therefore,such practices for the future, and for the encouragementof learned men to compose and write useful books, itis enacted that the author of any book or books alreadyprinted, who hath not transferred to any other the copy orcopies of such book or books in order to print or reprintthe same, shall have the sole right and liberty of printingsuch 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 becomposed, and his assignee, or assignees, shall have the soleliberty of printing and reprinting such book or books forthe term of fourteen years, to commence from the day offirst publishing the same, and no longer.” The penalty foroffences against the Act was declared to be the forfeiture ofthe illicit copies to the true proprietor, and the fine of onepenny per sheet, half to the Crown, and half to any personsuing for the same. “After the expiration of the said termof fourteen years the sole right of printing or disposing ofcopies shall return to the authors thereof, if they are thenliving, or their representatives, for another term of fourteenyears.” The last provision points to a particular view ofthe nature of copyright, to which we shall call attentionfurther on. To secure the benefit of the Act registrationat Stationers Hall was necessary. In section 4 is containedthe provision that if any person thought the price of abook “too high and unreasonable,” he might complain tothe archbishop of Canterbury, the lord chancellor, thebishop of London, the chiefs of the three courts atWestminster, and the vice-chancellors of the two universities inEngland, and to the lord president, lord justice general, lordchief barcn of the Exchequer, and the rector of the collegeof Edinburgh in Scotland, who may fix a reasonable price.Nine copies of each book were to be provided for the royallibrary, the libraries of the universities of Oxford andCambridge, the four Scotch universities, Sion College, andthe faculty of advocates at Edinburgh. The copyright ofthe universities was not to be prejudiced by the Act.

It was believed for a long time that this statute had notinterfered with the rights of authors at common law.Ownership of literary property at common law appears tohave been recognized in some earlier statutes. TheLicensing Act, 13 and 14 Car. II. c. 33, prohibited theprinting of any work without the consent of the owner onpain of forfeiture, &c. This Act expired in 1679, andattempts to renew it were unsuccessful. The records ofthe Stationers' Company show that the purchase and sale ofcopyrights had become an established usage, and the lossof the protection, incidentally afforded by the LicensingAct, was felt as a serious grievance, which ultimately ledto the statute of Anne. That statute, as the judges inMillar v. Taylor pointed out, speaks of the ownership ofliterary property as a known thing. One of the petitionsin support of the proposed legislation in 1709 states thatby common law a bookseller can recover no more costs thanhe can prove damages. “Besides,” it continues, “thedefendant is always a pauper, and so the plaintiff mustlose his costs of suit. No man of substance has beenknown to offend in this particular; nor will any everappear in it.” Therefore the confiscation of counterfeitproperties is prayed for. And many cases are recorded inwhich the courts protected copyrights not falling withinthe periods laid down by the Act. Thus in 1735 themaster of the Rolls restrained the printing of an edition ofthe Whole Duty of Man, published in 1657. In 1739 aninjunction was granted by Lord Hardwicke against thepublication of Paradise Lost, at the instance of personsclaiming under an assignment from Milton in 1667. Thequestion, however, was raised in the case of Millar v. Taylor(4 Burrow, 2303) in 1769, in which the plaintiff, who hadpurchased the copyright of Thomson's Seasons in 1729,claimed damages for an unlicensed publication thereof bythe defendant in 1763. The jury found that before thestatute it was usual to purchase from authors the perpetualcopyright of their works. Three judges, among whom wasLord Mansfield, decided in favour of the common law right;one was of the contrary opinion. The majority thoughtthat the Act of Anne was not intended to destroy copyrightat common law, but merely to protect it more efficientlyduring the limited periods. Millar v. Taylor, however, wasspeedily overruled by the case of Donaldson v. Beckett inthe House of Lords in 1774. The judges were called uponto state their opinions. A majority (seven to four) were ofopinion that the author and his assigns had at commonlaw the sole right of publication in perpetuity. A majority(six to five) were of opinion that this common law righthad been taken away by the statute of Anne, and a termof years substituted for the perpetuity. Lord Mansfielddid not deliver an opinion, as it was unusual for a peer tosupport his own judgment on an appeal to the Lords.Lord Camden argued against tho existence of a commonlaw right, and on hie motion, seconded by the lordchancellor, the decree of the court below was reversed. Thedecision appears to have taken the trade by surprise. Manybooksellers had purchased copyrights not protected by thestatute, and they now petitioned Parliament to be relievedfrom the consequences of the decision in Donaldson v.Beckett. A bill for this purpose actually passed the Houseof Commons, but Lord Camden's influence succeeded indefeating it in the House of Lords. The universitycopyrights were, however, protected in perpetuity by an Actpassed in 1775. The arguments in the cases abovementioned raise the fundamental question whether therecan be any property in literary works, and are reallyarguments for and against the desirability of recognizing therights on general principles. Lord Camden was the greatopponent of copyright, both as a legislator and as a judge.His sentiments may be judged by his answer to the pleathat copyright was a reward to men of genius: “Glory isthe reward of science, and those who deserve it scorn allmeaner 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 perishabletrash. It was not for gain that Bacon, Newton, Milton,and Locke instructed and delighted the world. When thebookseller offered Milton five pounds for his Paradise Lost,he did not reject it and commit his poem to the flames, nordid he accept the miserable pittance as the reward of hislabour; ho knew that the real price of his work was immortality, and that posterity would pay it.”

The battle of copyright at this time appears to have beenfought mainly in the interests of the booksellers, and moreparticularly of the London booksellers. One memberpresented petitions from the country booksellers, anotherfrom the booksellers of Glasgow against the BooksellersCopyright Bill. Burke supported the bill, and Fox opposedit. In both Houses the opponents of the bill denouncedthe booksellers vehemently. Speaking of the StationersCompany, Lord Camden said, “In 1681 we find a by-lawfor the protection of their own company and theircopyrights, which then consisted of all the literature of thekingdom; for they had contrived to get all the copies intotheir own hands.” Again, owner was the term applied toevery holder of copies, and the word author does not occuronce in all their entries. “All our learning will be lockedup in the hands of the Tonsons and Lintons of the age,who will set that price upon it their avarice chooses todemand, till tho public become their slaves as much as theirhackney compilers now are. Instead of salesmen thebooksellers of late years have forestalled the market, andbecome engrossers.” In the discussions which preceded thelast Copyright Act, the interests of the authors are moreprominent, but there are still curious traces of the ancienthostility to booksellers. The proceedings both in Donaldsonv. Beckett and in the Booksellers' Copyright Bill arerecorded at considerable length in the ParliamentaryHistory, vol. xvii.

By the 41 Geo. III. c. 107 the penalty for infringement ofcopyright was increased to threepence per sheet, in additionto the forfeiture of the book. The proprietor was to havean action on the case against any person in the UnitedKingdom, or British dominions in Europe, who shouldprint, reprint, or import without the consent of theproprietor, first had in writing, signed in the presence oftwo or more credible witnesses, any book or books, or whoknowing them to be printed, &c., without the proprietor'sconsent should sell, publish, or expose them for sale; theproprietor to have his damages as assessed by the jury, anddouble costs of suit. A second period of fourteen yearswas confirmed to the author, should he still be alive at theend of the first. Further, it was forbidden to import intothe United Kingdom for sale books first composed, written,or printed and published within the United Kingdom, andreprinted elsewhere. Another change was made by theAct 54 Geo. III. c. 156, which in substitution for the twoperiods of fourteen years gave to the author and hisassignees copyright for the full term of twenty-eight yearsfrom the date of the first publication, “and also, if theauthor be living at the end of that period, for the residueof his natural life.”

Existing law of copyright.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 thecopyright in every book which shall after the passing of this Actbe published in the lifetime of its author shall endure forthe natural life of such author, and for the further termof seven years, commencing at the time of his death, andshall be the property of such author and his assignees;provided always that if the said term of seven years shallexpire before the end of forty-two years from the firstpublication of such book the copyright shall in that caseendure for such period of forty-two years; and that thecopyright of every book which shall be published after thedeath of its author shall endure for the term of forty-twoyears from the first publication thereof, and shall be theproperty of the proprietor of the author's manuscript fromwhich such book shall be first published and his assigns.The benefit of the enlarged period is extended tosubsisting copyrights, unless they are the property of anassignee who has acquired them by purchase, in which casethe period of copyright will be extended only if theauthor or his personal representative agree with theproprietor to accept the benefit of the Act. By section 5 thejudicial committee of the Privy Council may license therepublication of books which the proprietor of the copyrightthereof refuses to publish after the death of the author.The sixth section provides for the delivery within certaintimes of copies of all books published after the passing ofthe Act, and of all subsequent editions thereof, at theBritish Museum. And a copy of every book and itssubsequent editions must be sent on demand to the followinglibraries:—The Bodleian at Oxford, the public library atCambridge, the Library of the Faculty of Advocates inEdinburgh, and that of Trinity College, Dublin. The otherlibraries entitled to this privilege under the old Acts hadbeen deprived thereof by an Act passed in 1836, and grantsfrom the treasury, calculated on the annual average valueof the books they had received, were ordered to be paid tothem as compensation. A book of registry is ordered tobe kept at Stationers' Hall for the registration of copyrights,to be open to inspection on payment of one shilling forevery entry which shall be searched for or inspected. Andthe officer of Stationers' Hall shall give a certified copy ofany entry when required, on payment of five shillings; andsuch certified copies shall be received in evidence in thecourts as prima facie proof of proprietorship or assignmentof copyright or licence as therein expressed, and, in thecase of dramatic or musical pieces, of the right of representationor performance. False entries shall be punished asmisdemeanours. The entry is to record the title of thebook, the time of its publication, and the name and placeof abode of the publisher and proprietor of copyright.Without making such entry no proprietor can bring anaction for infringement of his copyright, but the entry isnot otherwise to affect the copyright itself. Any persondeeming himself aggrieved by an entry in the registry maycomplain to one of the superior courts, which will order itto be expunged or varied if necessary. A proprietor maybring an action on the case for infringement of his copyright, and the defendant in such an action must give noticeof the objections to the plaintiff's title on which he meansto rely. No person except the proprietor of the copyrightis allowed to import into the British dominions for sale orhire any book first composed or written or printed andpublished in the United Kingdom, and reprintedelsewhere, under penalty of forfeiture and a fine of £10. Theproprietor of any encyclopædia, review, magazine, periodicalwork, 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 shallbelong to such proprietor, shall enjoy the term of copyrightgranted by the Act.^[1] But the proprietor may not publishseparately any article or review without the author'sconsent, nor may the author unless he has reserved the rightof separate publication. Where neither party has reservedthe right they may publish by agreement, but the authorat the end of twenty-eight years may publish separately.Proprietors of periodical works shall be entitled to all thebenefits of registration under the Act, on entering in theregistry the title, the date of first publication of the firstvolume or part, and the names of proprietor and publisher.The interpretation clause of the Act defines a book to beevery volume, part, or division of a volume, pamphletsheet of letter-press, sheet of music, map, chart, or planseparately published. The Act is not to prejudice therights of the universities and the colleges of Eton,Westminster, and Winchester.

The Copyright Act was the result of a Parliamentarymovement conducted by Mr Sergeant Talfourd and afterwardsby Lord Mahon. Talfourd's bill of 1841 proposedto extend copyright to a period of sixty years after theauthor's death. The proposer based his claim on the samegrounds 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 brilliantillustration and superficial argument. If copyright is tobe regarded, as Macaulay regarded it, as a mere bounty toauthors,—a tax imposed upon the public for the encouragementof people to write books,—his opposition to anextended term is not only justified, but capable of beingapplied to the existence of the right for any period whatever.The system of bounty, or of taxation for the special benefitof any class of citizen, is condemned by the principles ofpolitical economy and the practice of modern legislation.But if copyright is defended on the same principles whichprotect the acquisitions of the individual in other lines ofactivity, the reasoning of Macaulay and the opponents ofperpetuity is altogether wide of the mark. The use of thephrase perpetual copyright has caused much confusion. Aperpetual copyright is precisely the same sort of right, inrespect of duration, as a fee-simple in land, or an investmentin consolidated bank annuities. When Macaulay thereforesays, “Even if I believed in a natural right of propertyindependent of utility and anterior to legislation, I should stilldeny that this right could survive the original proprietors,”his argument applies equally to property in land and inbank annuities. The original purchaser of a bank annuityacquires a right to the receipt of a certain sum every yearfor ever, and such right he may assign or bequeath to anybody he chooses. The writer of a book, if the lawrecognized a perpetual copyright, would acquire an exclusiveright to the profits of its publication for ever, and mightassign or bequeath that right as he chose. In both casesthe right survives the owner—if indeed such a phrase canproperly be used at all. Again, Macaulay points out thata copyright fifty years after one's death is at the presentmoment comparatively worthless:—“An advantage to beenjoyed half a century after we are dead, by somebody, weknow not whom, perhaps by somebody unborn, by somebodyutterly unconnected with us, is really no motive at all toaction.” No doubt there is a point in the future at whicha right coming into existence would for us now living bevirtually worth nothing. But this is true of all rights, andnot merely of the rights called copyright; and this reasoningwould justify the cutting off at some point in thefuture of all individual rights of property whatever. Thepresent value of a right to rent, a right to annuities, and acopyright—to arise a hundred years hence—is probablynext to nothing. There may be good reasons for saying nowthat no such perpetuity of right ought to be recognized,that the state ought to pass a law to take for itself allprofits arising out of land, and all annuities from the publicfunds, from and after the year 1977. The injury done tothe present owners would be precisely of the same sortand extent as in the case of a copyright being cut shorta hundred years hence. Macaulay asks, “Would acopyright for sixty years have roused Dr Johnson to anyvigorous effort, or sustained his spirits under depressingcircumstances?” A sixty years copyright, or a perpetualcopyright, would have been to Dr Johnson in his last daysof the same value as a sixty years lease or a fee-simplerespectively of property yielding the same amount ofincome. Again, says Macaulay, the property would becertain to leave the author's family; the monopoly wouldfall into the hands of a bookseller. The same thing maybe said of all property that is assignable; and if there hany good reason for preventing the assignment of propertyin certain circumstances, whether by a law of entail orotherwise, that reason may be urged in the case of copyright with the same force, and only with the same force,as in the case of land. The old animus against thebookseller is still apparent in such objections as the last.

A former Copyright Act, as we have already noticed, gavethe author two periods of fourteen years, the second to beconditional on his surviving the first. The object of thisenactment is evidently to prevent the copyright from fallinginto the hands of a bookseller. The legislature appears tohave deemed authors incapable of managing their ownaffairs. To prevent them from being made the victims ofunscrupulous publishers they put it out of their power toassign the entire copyright, by making the second period amere contingency. It was forgotten that future profitshave a present money value, and that if an author sells hiscopyright for its fair market value, as he surely may beleft to do, he reaps the advantage of the entire period ofcopyright as completely as if he remained the owner to theend. From this point of view the condition attached tothe second period was a positive hardship to the author,inasmuch as it gave him an uncertain instead of a certaininterest. It is the difference between an assignable annuityfor a certain period of twenty-eight years, and two assignableannuities for fourteen years—the second only to comeinto existence if the original annuitant survives the firstperiod. The same fallacy lurks under Talfourd's complaintthat as copyright is usually drawing towards an end at theclose of the author's life, it is taken away at the very timewhen it might be useful to him in providing for his family.But if the period fixed is otherwise a fair period, the futureof the author's family is an irrelevant consideration. Hehas, by supposition, the full property rights to which he isentitled, and he may sell them or otherwise deal with themas he pleases, and he will make provision for his family asother men do for theirs. Nothing short of a strict EntailAct can keep copyright, any more than other property, inhis or his family's possession. The attempt to do this bymaking the latter portion of the period conditional hasdisappeared from legislation, but the same fallacy remainsin the objections urged against long terms of copyright.What would be a fair term may depend on a variety ofconsiderations, but the chance or certainty of copyrightsbecoming 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 in1842 reduced the proposed period to twenty-five years afterdeath; Macaulay proposed forty-two as the fixed numberin all cases. It was at Macaulay's suggestion that theclause against the possible suppression of books by theowners of copyright was introduced. Under a longerperiod of copyright the danger apprehended might possiblybecome a real one; at present we are not aware of anycomplaint having been made to the judicial committeeunder this section.

Art copyright.The preceding narrative records the changes in thelaw of copyright in books only. In the meantime theprinciple had been extended to other forms of mentalwork. The 8 Geo. II. c. 13 is an Act “for the encouragementof the arts of designing, engraving, and etchinghistorical and other prints by vesting the propertiesthereof in the inventors and engravers during the timetherein mentioned.” It gave to every person who should“invent and design, engrave, etch, or work in mezzotintoor chiaro-oscuro, or from his own works and inventionshould cause to be designed and engraved, etched, orworked in mezzotinto or chiaro-oscuro, any historical orother print or prints, which shall be truly engraved withthe name of the proprietor on each plate and printed onevery such print or prints,” a copyright for fourteenyears—the period fixed by the statute of Anne,—and inflicts apenalty on those who engrave, &c., as aforesaid, withoutthe consent of the proprietor. The 7 Geo. III. c. 38extended the protection to those who should engrave, &c.,any print taken from any picture, drawing, model, orsculpture, either ancient or modern, in like manner as ifsuch print had been graved or drawn from the originaldesign of such graver, etcher, or draughtsman; and in bothcases the period is fixed at twenty-eight instead of fourteenyears. Ten years later a further remedy was provided bygiving a special action on the case against persons infringingthe copyright. By the 38 Geo. III. c. 71 the sole right ofmaking models and casts was vested in the originalproprietor for the period of fourteen years.

Stage right.Stage right was first protected by the 3 and 4 Will. IV.c. 15, which provided that the author (or his assignee) ofany tragedy, comedy, play, opera, farce, or other dramaticpiece or entertainment composed, or which should thereafterbe composed, and not printed or published by the author,should have as his own property the sole liberty ofrepresenting or causing to be represented at any place ofdramatic entertainment in the British dominions any suchproduction, and should be deemed the proprietor thereof;and that the author of any such production printed andpublished within the ten years preceding the passing of theAct, or which should thereafter be so published, should havesole liberty of representation for twenty-eight years fromthe passing of the Act, or the first publication respectively,and further during the natural life of the author if hesurvived that period.

Lectures and Sermons.The publication of lectures without consent of theauthors 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 beforetheir delivery to two justices of the peace living within fivemiles of the place of delivery, and (2) lectures deliverediu universities and other public institutions. Sermons byclergy of the Established Church are believed to fallwithin this exception.

Music.Musical compositions are protected by a section of theCopyright Act 5 and 6 Vic. c. 45 above mentioned. Theincreased period of copyright fixed by that Act is extendedto the right of representing dramatic pieces and musicalcompositions—the first public representation or performancebeing the equivalent of the first publication of a book.In such cases the right of representation is not conveyed bythe assignment of the copyright only.

Lithographs.Lithographs, hitherto a doubtful subject, were broughtwithin the provisions relating to prints and engravings bya 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 exclusiveright of copying, engraving, reproducing, and multiplyingit, and the design thereof, for the term of the natural lifeof the author and seven years after his death. The Actsrelating to copyright of designs will be noticed below.

We may now notice a few of the more importantprinciples developed and applied by courts of justice inadministering the law of copyright. One of them is that therecan be no copyright in any but innocent publications.Immoral publications.Books of an immoral or irreligious tendency have beenrepeatedly decided to be incapable of being made thesubject of copyright. In a case (Lawrence v. Smith) beforeLord Eldon, an injunction had been obtained against apirated publication of the plaintiff's Lectures on Physiology,Zoology, and the Natural History of Man, which the judgerefused to continue, “recollecting that the immortality ofthe soul is one of the doctrines of the Scriptures, andconsidering that the law does not give protection to those whocontradict the Scriptures.” The same judge refused in1822 to restrain a piracy of Lord Byron's Cain, and DonJuan was refused protection in 1823. It would appearfrom a recent case, arising out of a different subjectmatter,^[2] that the courts are still disposed to enforce theseprinciples. To refuse copyright in such cases is futile asa mode of punishment or repression, inasmuch as it directlyopens up a wider circulation to the objectionable works.When the authorship of a book is misrepresented withintent to deceive the public, copyright will not berecognized.

Private letters.The writer of private letters sent to another person mayin general restrain their publication. It was urged in someof the cases that the sender had abandoned his property inthe letter by the act of sending; but this was denied byLord Hardwicke, who held that at most the receiver onlymight take some kind of joint property in the letter alongwith the author. Judge Story, in the American case ofFolsom v. Marsh, states the law as follows:—“The authorof any letter or letters, and his representatives, whetherthey are literary letters or letters of business, possess thesole and exclusive copyright therein; and no person, neitherthose to whom they are addressed, nor other persons, haveany right or authority to publish the same upon their ownaccount or for their own benefit.” But there may be specialoccasions justifying such publication.

Unpublished works.A kind of property in unpublished works, not created bythe 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 theQueen and Prince Albert, which had been lithographed forprivate circulation, fell into the hands of the defendant, aLondon publisher, who proposed to exhibit them, and issueda catalogue entitled A Descriptive Catalogue of the RoyalVictoria and Albert Gallery of Etchings. The Court ofChancery 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 beenthe subject of much discussion in the courts. It wasdecided under the statute of Anne that a repetition frommemory was not a publication so as to be an infringementof copyright. In the recent case of Reade v. Comquest thesame view was taken. The defendant had “dramatized”the plaintiff's novel, and the piece was performed at histheatre. This was held to be no breach of copyright; butthe circulation of copies of a drama, so taken from acopyright novel, whether gratuitously or for sale, is not allowed.Then again it is often a difficult question to decide whetherthe alleged piratical copyright does more than make thatfair use of the original author's materials which the lawpermits. It is not every act of borrowing literary matterfrom another which is piracy, and the difficulty is to drawthe line between what is fair and what is unfair. LordEldon put the question thus,—whether the second publicationis a legitimate use of the other in the fair exercise ofa mental operation deserving the character of an originalwork. Another test proposed is “whether you find on thepart of the defendant an animus furandi—an intention totake for the purpose of saving himself labour,” No one,it has been said, has a right to take, whether with orwithout acknowledgment, a material and substantialportion of another's work, his arguments, his illustrations,his authorities, for the purpose of making or improving arival publication. When the materials are open to all, anauthor may acquire copyright in his selection or arrangementof them. Several cases have arisen on this pointbetween the publishers of rival directories. Here it hasbeen held that the subsequent compiler is bound to dofor himself what the original compiler had done. Whenthe materials are thus in medio, as the phrase is, it isconsidered a fair test of piracy to examine whether the mistakesof both works are the same. If they are, piracy will beinferred. Translations stand to each other in the samerelation as books constructed of materials in common. Theanimus furandi, mentioned above as a test of piracy, doesnot imply deliberate intention to steal; it may be quitecompatible with ignorance even of the copyright work.This is shown by the case of Reade v. Lacy. The plaintiffwrote a drama called Gold, and founded on it a novel calledNever too Late to Mend. The defendant dramatized thenovel, his play reproducing scenes and incidents whichappeared in the original play. The vice-chancellor, presumingthat the defendant had a right to dramatize the novel,found that the second play was an infringement of thecopyright in the first. Abridgments of original worksappear to be favoured by the courts—when the act ofabridgment is itself an act of the understanding, “employedin carrying a large work into a smaller compass, andrendering it less expensive.” Lord Hatherly, however, inTinsley v. Lacy, incidentally expressed his disapproval ofthis feeling,—holding that the courts had gone far enoughin this direction, and that it was difficult to acquiesce in thereason sometimes given that the compiler of an abridgmentis a benefactor to mankind by assisting in thediffusion of knowledge. A mere selection or compilation, soas to bring the materials into smaller space, will not be abona fide abridgment; “there must be real substantialcondensation, and intellectual labour, and judgment bestowedthereon” (Justice Story.) A publication professing tobe A Christmas Ghost Story, Reoriginated from the Originalby Charles Dickens, Esq., and Analytically Condensedexpressly for this Work, was found to be an invasion of MrDickens's copyright in the original. In the case of amusical composition Lord Lyndhurst held that it is piracywhen the appropriated music, though adapted to a differentpurpose, may still be recognized by the ear. Thequasi-copyright in names of books, periodicals, <fec., is founded onthe desirability of preventing one person from putting offon the public his own productions as those of another. Thename of a journal is a species of trade-mark on which thelaw recognizes what it calls a “species of property.” TheWonderful Magazine is invaded by a publication callingitself the Wonderful Magazine, New Series Improved.Bell's Life in London is pirated by a paper calling itselfthe Penny Bell's Life. So the proprietors of the LondonJournal got an injunction against the Daily LondonJournal, which was projected by the person from whomthey had bought their own paper, and who had covenantedwith them not to publish any weekly journal of a similarnature. A song published under the title of Minnie, sungby Madame Anna Thillon and Miss Dolby at MonsieurJullien's concerts, was invaded by a song to the same airpublished as Minnie Dale, Sung at Jullien's Concerts byMadame Anna Thillon.

Relation of copyright and stageright.Dramatic and musical compositions, it should be observed,stand on this peculiar footing, that they may be the subjectof two entirely distinct rights. As writings they comewithin the general Copyright Act, and the unauthorizedmultiplication of copies is a piracy of the usual sort. Thiswas decided to be so even in the case of musical compositionsunder the Act of Anne. The Copyright Act nowincludes a “sheet of music” in its definition of a book.Separate from the copyright thus existing in dramatic ormusical compositions is the right of representing them onthe stage; this was the right created by 3 and 4 Will. IV.c. 15, above mentioned in the case of dramatic pieces. TheCopyright Act, 5 and 6 Vict. c. 45, extended this right tomusical compositions, and made the period in both casesthe same as that fixed for copyright. And the Actexpressly provides (meeting a contrary decision in the courts),that the assignment of copyright of dramatic and musicalpieces shall not include the right of representation unlessthat 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 nowmore general and would extend to any unauthorizedrepresentation anywhere. A question has also been raisedwhether, to obtain the benefit of the Act, a musical piecemust be of a dramatic character. The dramatization of anovel, i.e., the acting of a drama constructed out of materialsderived from a novel, is not an infringement of thecopyright in the novel, but to publish a drama so constructedhas been held to be a breach of copyright (Tinsley v. Lacy,where defendant had published two plays founded on twoof Miss Braddon's novels, and reproducing the incidentsand in many cases the language of the original). Wheretwo persons dramatize the same novel, what, it may beasked, are their respective rights? In Toole v. Young (9Q. B., 523) this point actually arose. A, the author of apublished novel, dramatized it and assigned the drama tothe plaintiff, but it was never printed, published, or representedupon the stage. B, ignorant of A's drama, alsodramatized the novel and assigned his drama to thedefendant, who represented it on the stage. It was held thatany one might dramatize A's published novel, and that therepresentation of B's drama was not a representation of A'sdrama. This case may be compared with Reade v. Lacymentioned above.

Importation of pirated works.For preventing the importation of pirated copies of books,the commissioners of customs are required to make out alist of books on which copyright subsists, and of which theyhave received notice from the owner or his agent, and suchlists are to be exposed at the ports of the United Kingdom.If notice is not sent the importation of books will not beinterfered with. If any one wrongfully causes a book tobe entered on the custom lists, any one injured thereby mayapply to a judge in chambers to have the entry expunged.

Newspapers.Newspapers stand at present on a somewhat peculiarfooting with reference to the law of copyright. Their positionwas put in issue in the case of Cox v. the Land andWater Journal Company (Law Reports, 9 Eq. 324), inwhich the plaintiff sought to restrain the defendant frompublishing a “List of Hounds” taken from plaintiff'spaper—the Field. It was argued that there was nocopyright in a newspaper article, or, if there were, that it waslost by non-registration. Vice-Chancellor Malins held thata newspaper is not within the copyright Acts, that thereforethe rules as to non-registration do not apply, and thatthe proprietor of a paper acquires such a property (notcopyright) in every article for which he pays under the18th section of the Act, or by the general rules of property,as will entitle him to prohibit any other person frompublishing the same thing in any other newspaper. Thesubstantial justice of this decision is beyond impeachment,but as a matter of law it is by no means satisfactory. Theright to prohibit publication is copyright and nothingelse; and it is difficult to see how it can be enjoyed at alloutside the Copyright Act, or how, if it is acquired in virtueof compliance with any of the provisions of the Act, it canavoid forfeiture as a penalty for non-registration. It ishighly improbable that this decision would be confirmed,should the question ever come before a higher court. Theproperty of a newspaper, i.e., the good-will of printing andpublishing it, and the exclusive right to its title, are notrights of the same nature as copyright.

Crown and university copyrights.A special kind of perpetual copyright in various publica tionshas for various reasons been recognized by the law (1)in the Crown and (2) in the universities and colleges. Thevarious copyright Acts, including the last, except from theirprovisions the copyrights vested in the two English and thefour Scotch universities, Trinity College, Dublin, and thecolleges of Eton, Westminster, and Winchester. Crowncopyrights are saved by the general principle which exemptsCrown rights from the operation of statutes unless they areexpressly mentioned. Among the books in which theCrown has claimed copyright are the English translationof the Bible, the Book of Common Prayer, statutes, ordersof Privy Council, proclamations, almanacs, Lilly's LatinGrammar, year books, and law reports. The copyright inthe Bible is rested by some on the king's position as headof the church; Lord Lyndhurst rested it on his duties asthe chief executive officer of the state charged with thopublication of authorized manuals of religion. The rightof printing the Bible and the Book of Common Prayer isvested in the queen's printer and the universities of Oxfordand Cambridge. These copyrights do not extend toprohibit independent translations from the original. Theobsolete copyright of the Crown in Lilly's Latin Grammarwas founded on the fact of its having been drawn up atthe 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 Crownin the reign of Charles II.; by Act of Parliament they wereforbidden to bo published without licence from thochancellor and the chiefs of the three courts, and this formof licence remained in use after the Act had expired. Thecourts still maintain their right to restrain the publicationof reports of their proceedings, but on quite other groundsthan those pertaining to the law of copyright. Universityand college copyrights are made perpetual by an Act ofGeorge III., but only on condition of the books beingprinted at their printing presses and for their own benefit.

Rights of foreigners.The rights of foreigners under the copyright Actsproduced an extraordinary conflict of judicial opinion in theEnglish courts. A foreigner who during residence in theBritish dominions should publish a work was admitted tohave a copyright therein. The question was whetherresidence at the time of publication was necessary. InCocks v. Purday, the Court of Common Pleas held that itwas not. In Boosey v. Davidson, the Court of Queen'sBench, following the decision of the Court of CommonPleas in Cocks v. Purday, held that a foreign author mighthave copyright in works first published in England, althoughhe was abroad at the time of publication. But the Court ofExchequer, in Boosey v. Purday, refused to follow thesedecisions, holding that the legislature intended only toprotect its own subjects,—whether subjects by birth or byresidence. The question came before the House of Lordson appeal in the case of Boosey v. Jeffreys, in which theCourt of Exchequer had taken the same line. The judgeshaving been consulted were found to be divided in opinion.Six of them held that a foreigner resident abroad mightacquire copyright by publishing first in England. Fourmaintained the contrary. The views of the minority were affirmedby the House of Lords (Lord Chancellor Cranworth andLords Brougham and St Leonards). The lord chancellor'sopinion was founded upon “the general doctrine that aBritish senate would legislate for British subjects properly socalled, or for such persons who might obtain that characterfor a time by being resident in this country, and thereforeunder allegiance to the Crown, and under the protection ofthe laws of England.” Lord Brougham said that

Against the authority of this case, however, must beset the opinion of two of the greatest lawyers who haveoccupied the woolsack in this generation—Lord Cairns andLord Westbury. In the case of Routledge v. Low (LawReports, 3 House of Lords, 100) Lord Cairns said,

And Lord Westbury said, in the same case,

These conclusions appear to follow also from the recentNaturalization Act of 1870, which enacts that real andpersonal property of every description may be taken,acquired, held, and disposed of by an alien in the samemanner 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 personalproperty, it would seem that an alien also must havecopyright without the necessity of residence. It is quite clear,at all events, that residence in any part of the Britishdominions—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 ofthe British dominions.

Colonial copyright.Colonial copyright, however, is subject to a special Act,the 10 and 11 Vict. c. 95. Under English copyright booksof the United Kingdom were protected in the colonies, andcopies of them printed or reprinted elsewhere could not beimported into the colonies. At the same time bookspublished in the colonies are not, as we have justmentioned, within the protection of the Copyright Act. Bythe Colonial Copyright Act, 10 and 11 Vict. c. 95, it is nowenacted that when the legislative authority in any Britishpossession makes proper provision by Act or ordinance forthe protection of the rights of British authors, the Crownmay, by Order in Council, suspend the prohibition againstthe importation, &c., of foreign reprints of English copyrightbooks, so far as such colony is concerned, and the localAct shall thereupon come into operation. The followingcolonies have taken advantage of the Act:—New Brunswick,Nova Scotia, Prince Edward's Island, Bermuda,Bahamas, Barbados, Canada, St Lucia, St Vincent, BritishGuiana, Mauritius, Jamaica, Newfoundland, Granada, StChristopher, Antigua, Nevis, Cape of Good Hope, Natal(Shortt).

In 1875 an Act was passed to give effect to an Act ofthe Parliament of the Dominion of Canada respectingcopyright. An Order in Council in 1868 had suspendedthe prohibition against the importation of foreign reprintsof English books into Canada, and the Parliament hadpassed a Bill on the subject of copyright as to whichdoubts had arisen whether it was not repugnant to theOrder in Council. Her Majesty in Council is thereforeauthorized to assent to the Canadian Bill (which isprinted as a Schedule to the Act); and it is also enactedthat, after the Bill comes into operation, if an Englishcopyright book becomes entitled to Canadian copyright,no Canadian reprints thereof shall be imported into theUnited Kingdom, unless by the owner of the copyright.The following points in the Canadian Act are worthnoting. Any person printing or publishing an imprintedmanuscript without the consent of the author or legalproprietor shall be liable in damages (§ 3). Any persondomiciled in Canada, or in any part of the British Possessions,or being a citizen of any country having an internationalcopyright treaty with the United Kingdom, who isthe author of any book, map, &c., tc., shall have thesole right and liberty of printing, reprinting, publishing,&c., for the term of twenty-eight years. The work mustbe printed and published, or reprinted or republishedin Canada, whether before or after its publication elsewhere; and the Canadian privilege is not to be continuedafter the copyright has ceased elsewhere. And “no immoralor licentious, or irreligious, or treasonable, or seditiousliterary scientific or artistic work” shall be the subject ofcopyright (§ 4). A further period of fourteen years willbe continued to the author or his widow and children.An “interim copyright” pending publication may beobtained by depositing in the office of the minister ofagriculture (who keeps the register of copyrights) a copyof the title of the work; and works printed first in a seriesof articles in a periodical, but intended to be published asbooks, may have the benefit of this interim copyright. Ifa copyright work becomes out of print, the owner may benotified of the Act through the minister of agriculture,who, if he does not apply a remedy, may license a newedition, subject to a royalty to the owner. Anonymousbooks 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 bookspublished in a foreign country. Their protection inEngland depends on the International Copyright Acts.

International Acts.The International Copyright Acts were passed in orderto give foreign authors the same sort of privilege as isaccorded to English authors, on the basis of reciprocity. Theprincipal Act is the 7 and 8 Vict. c. 12, repealing an earlierAct, 1 and 2 Vict. c. 59, and amended by 15 Vict, c. 12.

Her Majesty may, by Order in Council, grant theprivilege of copyright to the authors of books, &c., firstpublished in any foreign country to be named in suchorder—provided always that “due protection has been securedby the foreign power, so named in such Order in Council,for the benefit of parties interested in works first publishedin the dominions of Her Majesty similar to thosecomprised in such order.” Different provisoes maybe fixed fordifferent 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 iscreated by this Act. Hence British as well as foreign authorsfirst publishing abroad, have no protection in Englandunless there is a convention between England and thecountry in which they publish under the InternationalCopyright Act. Thus in Boucicault v. Delafield,^[3] the plaintiffhad first performed a drama in New York, and afterwardsregistered it in England on the first day of its performancethere, and now sought to have its unauthorized representationrestrained. The court refused, holding that the Act7 and 8 Vict. c. 12, § 19 says in effect that if “any person,British subject or not, chooses to deprive this country ofthe first representation of his work, then he may get thebenefit of copyright if he can, under any arrangement whichmay have been come to between this country and the countrywhich he so favours with his representation.” If there isno such treaty or arrangement, then this country hasnothing more to say to him. The publication in the Britishdominions of unauthorized translations of works publishedabroad may be prohibited by the authors for a period offive years, except in the case of political articles in thenewspapers, &c. Copyright in foreign works of art, prints,articles of sculpture, <tc., may also be protected under theconditions applicable to copyright in the same subjects inEngland. The right of representing in England dramaticpieces, etc., first performed abroad, may also be recognizedin the same way. The authors of dramatic pieces firstperformed abroad may also acquire (under the 15 Vict. c.12) the right to prevent the representation of anyunauthorized translation of such dramatic pieces for aperiod not exceeding five years from the date of firstpublication or representation of an authorized translation.Section 6 of this Act contains the important exception that“nothing herein contained shall be so construed as toprevent fair imitations or adaptations to the English stageof any dramatic piece or musical composition published inany foreign country.” This clause has given greatdissatisfaction, and it has been virtually repealed by 38 Vict.c. 12.^[4] The right to prevent translations of foreign booksor dramatic pieces is subject to certain conditions enumeratedin section 8—requiring registration, publication of anauthorized translation within a certain time, &c. The Actrequires, it seems, that the translation should give theEnglish people the means of knowing the original asaccurately as is possible by means of an English version;and in a recent case, where the authors of Frou Frou hadauthorized a free English version with many changes ofnames, &c., and considerable omissions, it was held not tobe a sufficient compliance with the statute.^[5] The judgepronounced it to be an imitation or adaptation only, andsaid that if a true translation had been published first, theplaintiff might then have acted the “version,” and nobodyelse would have been allowed to act anything like it.

In all these cases, it must be remembered, the Crown cangrant copyright to foreign productions, only on conditionthat a convention securing reciprocal rights is concludedwith the foreign power in question, in terms of the InternationalCopyright Act. The countries with which conventionshave 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.

Defects in copyright laws.An Association to Protect the Rights of Authors hasrecently been formed with the object of calling attention tothe more glaring defects of the existing laws of copyright.The chief points noticed by this association are the loss ofrights by first production out of the United Kingdom; theloss by dramatization of novels; the unfair conditions ofstage-right in translations of foreign plays, and especially thehardship of the “fair adaptation” clause; the loss causedby the inefficient prohibition of pirated copies in Canadasince the International Copyright Act was passed, andthe absence of an international copyright treaty with theUnited States. Of these defects the “adaptation clause”has been repealed since the association was formed, and theAct already noticed was passed in 1875 to give effect to anew Copyright Act of the Canadian Parliament. In 1876a royal commission was appointed to consider the wholequestion of home, colonial, and international copyright.

The question of international copyright between Englandand the United States has for sometime been the subjectof active discussion among the authors and publishers ofboth countries. The chief opposition to a conventionproceeds from various sections of the publishing trade inAmerica. An interesting statement of the various groupsof opinion on this subject in the United States, and of theattempts to frame a satisfactory International CopyrightAct, will be found in an article by Dr C. E. Appleton inthe Fortnightly Review for February 1877. At present asort of customary copyright in English books is recognizedby certain leading firms. When one of them has, byarrangement with the author, obtained the advance sheetsof an English work, there is a tacit understanding that theothers are not to reprint that particular work; but thisarrangement, it appears, “is practically confined to thosewho are able to retaliate when the trade courtesy isviolated.” These great publishers have a monopoly of theEnglish trade, and those who would gladly become theircompetitors, the booksellers of the Middle and WesternStates, would, according to Dr Appleton, oppose anyInternational Copyright Act which did not aid them to breakdown that monopoly. Some of the resolutions of a meetingof the opponents of International Copyright atPhiladelphia in January 1872 are worth quoting:—

?Copyright of designs applicable to manufactures isprotected by the 5 and 6 Vict. c. 100, and subsequent Acts amending the same. Before designs in general wereprotected, the copyright in designs for the manufacture oflinens, cottons, calicos, and muslins had been recognized.The 5 and 6 Vict. c. 100. § 3, enacts “with regard to anynew and original design, whether such design be applicableto the ornamenting of any article of manufacture, or of anysubstance, artificial or natural or partly artificial and partlynatural, and whether for the pattern, for the shape orconfiguration, or for the ornament thereof, and by whatevermeans the same may be applicable, whether by printing,painting, &c., the proprietor shall have the sole riglit ofapplying such design, for the terms specified in the Act,which vary according to the class of manufacture inquestion.” By 6 and 7 Vict. c. 65, copyright for three yearswas granted for designs “having reference to somepurpose of utility, so far as design shall be for theshape or configuration of such article.” Registration inboth cases is necessary. The period of protection variesfrom nine months to five years, and in certain cases anextended period may be granted by the Board of Trade.Cases under these Acts are more nearly allied to patentsthan to copyrights.

Foreign States.Copyright in Foreign States.—France.—Copyrightin France is recognized in the most ample manner. Twodistinct rights are secured by law 1st, the right ofreproduction of literary works, musical compositions, and worksof art; and 2d, the right of representation of dramaticworks and musical compositions. The period is for thelife of the author and fifty years after his death. Afterthe author's death the surviving consort has theusufructuary enjoyment of the rights which the author hasnot disposed of in his lifetime or by will, subject toreduction for the benefit of the author's protected heirs ifany. The author may dispose of his rights in the mostabsolute manner in the forms and within the limits of theCode Napoléon. Piracy is a crime punishable by fine ofnot less than 100 nor more than 2000 francs; in the caseof a seller from 25 to 500 francs. The pirated editionwill be confiscated. Piracy also forms the ground for acivil action of damages to the amount of the injurysustained—the produce of the confiscation, if any, to gotowards payment of the indemnity (Penal Code, Art.425-429). The piracy on French territory of workspublished in a foreign country is, by a decree of 28th March1852, brought within the above provisions. “However,when a convention has been concluded with any state thistreaty modifies the effects of the decree of 28th March, inso far as its provisions may be in opposition to the saiddecree; the prescriptions of the new convention becomethe special law of the parties, and the rights of the authorsand artists of that state are regulated in France by theintervening convention” (Resumé of the Rights of Literaryand Artistic Property in France, Longman & Co.).

The following statements regarding copyright in otherEuropean countries are abridged from Copinger's Law ofCopyright (London; Stevens & Haynes, 1870):—

United States.—The first legislation on the subject of literaryproperty in the United States appears at the close of therevolution. In 1783 laws were passed by Connecticut andMassachusetts securing to authors for specified periods theexclusive property in their literary productions, and prescribingpenalties for its violation. Similar laws were passed byVirginia in 1785, by New York in 1786, and by other States.Under this system it was necessary for authors, in order toenjoy the benefits of protection in States other than that inwhich they resided, to copyright their works in each Statehaving such laws. Authors rights therefore depended onthe legislation in the several States, as there was no nationallaw relating to copyright. In order to afford to literaryproperty, as well as to useful inventions and discoveries,adequate protection throughout the United States by ageneral law, the Federal Constitution, which came intoforce in 1789, empowered Congress “to promote theprogress of science and useful arts by securing for limitedtimes to authors and inventors the exclusive right to theirrespective writings and discoveries.” Pursuant to thisprovision the first copyright law of the United States waspassed, May 31, 1790, entitled “An Act for the Encouragementof Learning by securing the Copies of Maps, Charts,and Books to the Authors and Proprietors of such Copiesduring the times therein mentioned.” This statute gave toauthors, who were citizens or residents of the United States,their heirs and assigns, copyright in maps, charts, andbooks for fourteen years, and provided for a second term ofthe same duration, if the author should be living at theexpiration of the first. The penalty prescribed for publishing,importing, or selling a book in violation of the Act wasforfeiture of copies to the author or proprietor, “who shallforthwith destroy the same,” and the payment of 50cents for every sheet found in possession of the offender,one-half to go to the author or proprietor, and the otherhalf to the United States. The Act also provided a remedyagainst the unauthorized publication of manuscriptsbelonging to citizens or residents of the United States. In1802 the provisions of the Act of 1790 were extended to“the arts of designing, engraving, and etching historicaland other prints.” In 1831 the several Acts relating tocopyrights were amended and consolidated by a general law,which extended the term of protection from fourteen totwenty-eight years, with provision for a renewal for fourteenyears to the author, his widow or children. Musicalcompositions were now for the first time expressly providedfor, being placed upon the same footing as books. In 1856was passed the first statute for giving to dramatists theexclusive right of representing their plays in public,and in 1865 photographs and negatives were declaredsubjects of copyright in the same manner as books,engravings, &c. All statutes relating to copyright wererepealed by the general law of 1870, which, with anamendment passed in 1874, now regulates the entiresubject. This law may be found in the revised statutes ofthe United States of 1873, and the amendment in thestatutes at large of 1873-74. The term of protection is thesame as that under the Act of 1831. To the subjects ofcopyright protected by previous statutes were added paintings,drawings, chromos, statues, statuary, and models ordesigns intended to be perfected as works of the fine arts.

Every author or owner, native or foreign, of anunpublished literary composition or work of art has exclusiveproperty therein at common law. Before publication,he may make of it any use which does not interfere withthe rights of others. When the work is published theowner's common law rights are lost. The author orproprietor of a manuscript, if a citizen or resident of theUnited States, has also a statutory remedy for damagesagainst its unlicensed publication.

In 1834 was contested in the Supreme Court of theUnited States the same question which had been soelaborately argued in the English case of Millar v. Taylor,decided by the Court of King's Bench in 1769, and finallysettled by the House of Lords five years later in Donaldsonv. Becket, viz., whether copyright in published worksexists by the common law, and is therefore of unlimitedduration, or is created by and wholly governed by statute.The Supreme Court, following the authority of the Houseof Lords, held that there was no copyright after publicationexcept for the limited term given by the statute. Of theseven judges four concurred in this conclusion, twodelivered 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 toforeign authors has been far less liberal than that of England.No special arrangement for international copyright, such assubsists between Great Britain and many Continentalcountries, has been entered into between the United Statesand any foreign Government. While a foreigner in theUnited States is entitled to common law protection for hisunpublished works, his rights after publication are determinedwholly by statute. The question concerning thestatus of a foreign author under the copyright laws, as wellas of a citizen who derives title from a foreigner, is freedfrom much of the doubt and difficulty that have surroundedit in the English courts. While Parliament from the reignof Anne to the present time has legislated for the benefitof “authors,” leaving to the courts to determine whetherthat general language is applicable to all authors or islimited to those of Great Britain, the American Congress, inall its legislation for the encouragement of literature fromthe Act of 1790 to that of 1870, has extended protectiononly to such author as may be a “citizen of the UnitedStates or resident therein.” Thus by express words is aforeigner excluded from the benefits of the statute. Thislanguage has nevertheless given rise to some discussion asto who may be regarded as a “resident.” That word hasbeen judicially construed to mean any person domiciled inthe United States with the intention of making there hispermanent abode. Neither naturalization nor a formaldeclaration of such intention is required. No definiteperiod of time and no specific acts are indicated as necessaryto constitute such residence. The question is to be determinedby the intention of the person at the time of recordinghis title, while his abode is in the United States,and by his acts so far as they indicate what that intentionwas. If at that time he intended to remain there and makethe country his place of permanent abode, his home, hebecomes during the continuance of that intention a residentwithin the meaning of the Act, though he may afterwardschange his mind and return to his native land. How longsuch intention shall continue the courts have not determined;but if it exists bona fide at the time of recordingthe title, valid copyright vests, and will not be defeated byany subsequent acts or change of mind on the part of theclaimant. On the other hand, if a foreign author shouldcome to the United States intending to stay temporarily,although with that intention he should actually remaina year or ten years, he would be a mere sojourner,and would not acquire a residence within the meaningof the Act. To determine thus the intention in themind of a person will in many cases be attended withdifficulty and even with fraud. It is a question offact for the jury, whose finding will determine thelaw. In case of a work composed jointly by a foreign anda native author, and copyrighted by either one or both, thecopyright in the part contributed by the foreign authorif it could be distinguished, would not be valid. Theassignee—although a citizen—of a foreign author, canacquire no more rights under the statute than the latter has.

There is, however, nothing in the statute to prevent acitizen or resident from acquiring copyright in certain worksof art which he has purchased from a foreign author. Bysection 4952 copyright is vested in “any citizen of theUnited 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 intendedto be perfected as works of the fine arts.” Under thissection any “proprietor,” who is a citizen or resident, mightacquire copyright in a work purchased from a foreignauthor. But a subsequent section, 4971, declares thatnothing in the Act “shall be construed to prohibit theprinting, 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 acitizen of the United States nor resident therein.” Thislanguage clearly disqualifies a foreigner, or any one derivingtitle from him, from acquiring in the United Statescopyright in the works mentioned. But no mention is made ofpaintings, drawings, chromos, statues, statuary, models, ordesigns which are included in the previous section.Whether this omission is intentional or otherwise cannot bedetermined from the Act, but in the absence of any judicialor legislative light on this point, the only sound interpretationwould seem to be that if a citizen or resident of theUnited States, having purchased from a foreign author anywork of art of these classes, should take the requisite stepsto secure copyright therein, his title would be valid. Acitizen of the United States may acquire copyright whiletemporarily 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 becopyrighted as a book. There is no special provision concerningcopyright in an encyclopedia, review, magazine, or periodicalas is prescribed by sections 18 and 19 of the 5 and 6 Vict.c. 45. Such works are protected in the same manner asbooks. In the absence of special agreement to the contrary,the copyright of an article contributed to a magazine orother periodical would doubtless remain with the authorfor all purposes which would not deprive the purchaser ofany advantage arising from its publication in the magazine.The right of subsequent publication in book form wouldbelong to the author and not to the owner of the periodical.Such publication might be made at any time after the issueof the magazine, provided the circulation of the latter wasnot thereby injured. In practice newspapers are notcopyrighted; hence any uncopyrighted article first published ina newspaper becomes publici juris, and valid copyrightcould not be subsequently obtained for it. But either theentire newspaper or any article published in it may becopyrighted by a compliance with the general statutoryprovisions relating to books. Authors may reserve theright to dramatize or to translate their own works, byprinting a notice to that effect in the book. The copyrightlaw does not protect a title independently of the book; buta title may be registered as a trade mark, or its unlawfuluse may be restrained on the general principles of equity.Nor is there any provision in the copyright law, as inEngland, for the protection of designs for industrialproducts. The statute of 1874 prescribes that the words“engraving,” “cut,” and “print” shall be applied only topictorial illustrations or works connected with the fine arts,and that no prints or labels designed to be used for anyother articles of manufacture shall be entered underthe copyright law, but must be registered in the patentoffice.

The statute now in force grants to authors, and theirexecutors, administrators, or assigns, copyright for twenty-eightyears from the time of recording the title. At theexpiration of that period the author or his widow orchildren may obtain an additional term of fourteen years.In order to secure copyright every applicant is required toperform three acts:—1st, before publication to transmit tothe librarian of Congress in Washington a printed copy ofthe title of the book, map, chart, dramatic or musicalcomposition, engraving, cut, print, or photograph, or a descriptionof the painting, drawing, chromo, statue, statuary,model, or design; 2d, within ten days after publication tosend to the same official two copies of such book or otherarticle, or in the case of a painting, drawing, statue, model,or design a photograph thereof; 3d, to print on the titlepage, 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 somevisible portion of it, or upon the substance upon which itis mounted, the notice of entry for copyright in the formprescribed. Two forms are prescribed, either of whichmay be used:—1. “Entered, according to Act of Congress,in the year ⁠ by ⁠, in the office of the librarian ofCongress at Washington;” 2. “Copyright 18 . . by ⁠”.The year when the copyright was entered and the name ofthe person, persons, or firm by whom entered are to begiven. Compliance with all these conditions is essentialto valid copyright. Until they are performed an action atlaw for infringement cannot be maintained. But equity willprotect the copyright as soon as the title is recorded, andbefore the performance of the other two requisites. Whenthe right is perfected an action at law may be maintained forany infringement after the recording of the title. A penaltyof $25 is further prescribed for failure to deliver to thelibrarian of Congress, within ten days after publication, twocopies of the best edition of the book, or description orphotograph of the other articles above mentioned, and acopy of every subsequent edition containing substantialchanges. A penalty of $100 is imposed upon any personwho causes notice of copyright to be inserted in a book, orimpressed upon any other article for which a copyright hasnot been obtained. The fee for securing copyright is50 cents, to be paid to the librarian for recording the title.A copy of such record may be obtained for 50 cents. Thelibrarian receives $1 for recording and certifying anassignment, and $1 for every copy of an assignmentfurnished, Another essential condition to valid copyrightis publication, and the work must be first published in theUnited States; but a contemporaneous publication abroadwill not prejudice the author's rights. The productionmust also be original and innocent in character.Copyright will not vest in an unpublished work. But thestatute provides that every person who shall print orpublish any manuscript, without the consent of the author orproprietor, if the latter is a citizen or resident of theUnited States, shall be liable for damages. There isnothing in the Act to exclude a resident assignee of aforeign author from the benefits of this provision.

Copyrights pass to heirs and are assignable in law by anyinstrument of writing. Every assignment must be recordedin the office of the librarian of Congress within sixty daysafter its execution, in default of which it becomes void asagainst any subsequent purchaser or mortgagee for a valuableconsideration without notice.

The existing statute provides that if any person withoutdue authority shall print, publish, or import a copyrightedbook, or knowing it to be so printed, published, or importedshall sell or offer it for sale, he shall forfeit every copy tothe proprietor and pay such damages as may be recoveredin a civil action. In case of piracy of a map, chart, musicalcomposition, print, cut, engraving, photograph, or chromo,the offender is made liable to forfeit the plates and everysheet copied or printed, and to pay $1 for every sheet foundin his possession either printing, printed, copied, published,imported, or exposed for sale. For every pirated copy ofa painting, statue, or statuary found in his possession, orwhich he has sold or offered for sale, the offender must pay$10. The injured person may obtain from a court ofequity an injunction against the publication and sale of thepirated work, and may recover at law the damagessustained by such publication. All actions at law and suitsin equity under the copyright statutes must be brought inthe circuit or district courts of the United States, except inthe District of Columbia or any territory where the propertribunal is the Supreme Court. Appeal lies to theSupreme Court of the United States. All actions forforfeitures or penalties must be brought within two yearsafter the cause of action has arisen. Redress for theinvasion of common law rights in unpublished works mustbe sought in a State court, unless the parties to thecontroversy are citizens of different States, in which case thecourts of the United States have jurisdiction.

Stage right in the United States.Stage right in the United States.—Until 1856 there wasno statute giving to dramatists control over the publicrepresentation of their plays. This want was met bythe Act of August 18 of that year, which was passedexpressly to confer upon the author or owner of adramatic composition the sole liberty of performing, orcausing it to be performed, in public; and any one infringingthis right was made liable to damages in a sum not lessthan $100 for the first and $50 for every subsequentunauthorized performance. The provisions of this Acthave been held to apply only to cases in which copyrightwas secured under the Act of 1831; and as the benefits ofthat law were by express words limited to citizen or residentauthors, foreign dramatists acquired no rights by thestatute of 1856. The Act of 1870 gives to dramatists,besides the exclusive right of publishing in print, the soleliberty of representing their dramatic compositions on thestage, and declares that any person who publicly representsa copyrighted dramatic composition, without authority,shall be liable to damages in a sum not less than $100 forthe first and $50 for each subsequent performance. Thisright is secured by copyrighting the dramatic compositionas a book and endures for the same term as does the copyright in the book. The Act must be construed as givingthe sole liberty of representation only in cases where theexclusive right of publication has been secured. In otherwords, the copyright in the printed production is made toinclude the right of public representation. As the formercan be acquired only by citizens and residents, foreigndramatists and their assignees, as under the Act of 1856,are excluded from the benefits of the statutes. There is nostatutory provision, as in England, giving to either nativeor foreign dramatists the exclusive right to represent theirmanuscript plays. While foreign dramatists are entitledto no statutory protection whatever, their manuscriptplays are protected by the common law. In this respectthe rights of native and foreign dramatists are the same.Such protection ceases when the play is published. Whenpublished in print the owner's rights are lost, unless in thecase of a citizen, protected by statute. Whether theauthorized public performance of a manuscript play, unprotectedby statutory copyright, is such a publication as willgive to any one, without licence from the owner, the righteither to represent it on the stage or to publish it in print,is a question which is not determined by statute, as inEngland, but is left entirely to the courts. It has beenmuch discussed in several leading cases since 1860; andits importance is enhanced by the fact that many, if notmost, of the dramas which American managers are expectedand even required to provide for an exacting public and acritical press are from the pens of English and Frenchplaywrights. It is well settled that the public performance ofa manuscript drama is not such a publication as willinvalidate a copyright subsequently obtained by the author;and that no one, without leave, may publish in print, orpublicly represent the play, if obtained by stenography, theuse of writing, or in any other way than through thememory of one or more persons who have witnessed itslawful representation. The theory has been advanced, andhas received some judicial approval, that the owner of anuncopyrighted manuscript play cannot lawfully preventanother from publicly representing it, when the latter hasobtained a copy through the memory of any person whohas witnessed the authorized performance. This doctrineis supported by a single case decided in the Supreme Courtof Massachusetts in 1860. Its soundness has beenquestioned by high authority, and there is little doubt thatwhen the direct issue shall be presented for judicialdetermination such unlicensed use of the play will be held to bepiracy. It may be regarded as conceded that the courtswould not hesitate to declare unauthorized publication inprint to be an invasion of the owner's rights.

Property in unpublished musical compositions, lectures,sermons, works of arts, &c., are governed by the sameprinciples that apply in the case of dramatic productions.There is no statute, as in England, regulating the author'srights in manuscript lectures. The writer of anunpublished letter, whether possessing literary value or not, mayprevent at common law its unauthorized publicationby the receiver, unless publication is necessary to protectthe latter against injurious representations made by theformer. (E. R.—E. S. DR.)

1. ↑ Such articles must be paid for, in order to vest copyright in theproprietor of the periodical.
2. ↑ Cowan v. Milbourn, Law Reports, 2 Exchequer 230, in which it washeld that a contract to let a room for lectures might be broken by thelessor on finding that the proposed lectures were of an irreligious,blasphemous, and illegal character.
3. ↑ 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.
4. ↑ 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, grantstage-right to foreign dramatists as mentioned above, and the enactmentsin force for protecting domestic stage rights are available forthem; but nothing in the Act is to prevent fair imitations or adaptationsto the English stage of foreign plays, &c. Now comes the Act of1875, which says that in case of any such order the Queen may directthat 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 thetranslations thereof as if the said sixth section of the said Act werehereby repealed.” So that the Queen may repeal the sixth section inany particular case so far as to remit the question of “fair adaptationsand imitations” to the common law.
5. ↑ Wood v. Chart, (Law Reports, 10 Equity 204).