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other hand to be of use to litigants, actual or in contemplation, who, though prevented by modesty, from arguing a question on the rule in Shelley's case, may consider that their legal knowledge justifies them in pleading in person. for the exclusive right to represent a scene in a pantomime, or to multiply copies of a song.
It would be going beyond the limits of this work to trace in detail the development of the law of copyright from its origin in the seventeenth century; whereas our book is only intended to deal with more recent subject-matter, viz.: the rights of dramatic authors and composers, home and international. Those rights are defined by a series of enactments commencing with a statute of William the Fourth, passed in the year 1833. But as questions turning on the law of musical and dramatic copyright will be more readily understood by persons who have some acquaintance with the previous law, a short account of that law is given in this Introduction.
It may for the purpose of the lay reader be necessary to explain that it was in the first instance not alone under Copyright Acts that an author could claim protection for his works.
Prior to any statute the common law protected an author in the enjoyment of his work, but this common law or inherent right has now almost passed from the region of practice into that of history, as the modern statutes regulate the majority of conceivable cases. This form of literary property prior to and outside legislative enactment is, how
13 & 14 Car. II., c. 33.
ever, recognised and shown by the language of a statute passed as early as 1662, in a clause prohibiting the public from printing without the consent of the owner a book which any person had the sole right to print under Letters Patent, or by virtue of any entry in the Register Book of the Company of Stationers, or in the Register Book of either of the Universities,
Copinger. 2nd Ed., p. 22.
The often-cited "Statute of Anne" enacted in effect that
authors of books not then printed should have 8 Anne, c. 19. the sole right of printing for fourteen years and no
longer. A penalty was laid on any person publishing, importing, or selling piratical copies; and a registration clause was added for purposes of publicity; which latter clause has formed the foundation for the numerous registration provisos inserted in subsequent Acts. The clause in question enacted that no book was to be entitled to protection unless the title had been entered before publication in the Register Book of the Stationers' Company; that nine copies of each book should be delivered to the warehouse keeper of the said Company for the use of the Royal Library in London, the Universities, Sion College, and the Library of the Faculty for Edinburgh, under a penalty. A clause was also inserted in the Act of Anne, which has been found useful in modern legislation, prohibiting importation without the written consent of the owner. After the expiration of the term of fourteen years the sole right of printing or disposing of copies was to return to the authors, if living, for another term of fourteen years.
4 Burr. 2408
2 Bro. Parl.
This statute was held in the case of Donaldson v. Becket (which stands out as a conspicuous landmark in the history of copyright) to have extinguished by implication the natural or inherent right of property in an author's work; and to cut him down to the right, if any, which he might have by positive
The Statute of Anne has been long since repealed.
It may be useful to point out to the lay reader what may not be self-evident, viz.: that it is a very different matter whether a claim be laid under the common law, or by virtue of a statute. In the first case the right would be a perpetual one; whereas an Act of Parliament, while it gives the author the benefit of a statutory remedy, cuts down the
duration of that right to a limited time; and in this respect the author is treated with less, and the public with more, liberality under English law than in many European States. The longest period of copyright known to our law is the natural life of the author and a further term of seven years, or an absolute period of forty-two years; whereas the duration under French law is the term of fifty years from the death of the author, in which respect the example of our neighbours is followed by those European States in which the Code Napoléon, or an adaptation of it, prevails. Again, those who claim under the statute are subject to rigorous enactments enforcing registration.
The importance of the distinction between a right by virtue of, and one outside legislative enactment, is shown by the fact that in one case the struggle to escape from the effect of a statutory clause providing
7 & 8 Vict., c. 12, s. 19.
1 H. & M. 597.
that no author should have copyright outside the Act containing the clause, created considerable litigation. Mr. Boucicault, having for the first time published an original play, The Colleen Bawn, in New York, sought to restrain an English infringer. The defenant showed that the plaintiff could not rely on any statute; the policy of our Legislature being to protect only those works which are first published in Great Britain, or in a country with which this country has a treaty; whereas there was no treaty with the United States. Had it not been for the clause referred to, Mr. Boucicault might have said, "I do not want your statutes, I claim none of the specific remedies conferred by them, and I am not concerned to comply with their vexatious formalities. I take my stand
on the common law of England, which entitles me to prosecute a marauder.”
It was held, however, that the clause in question applied literally, and that the plaintiff must come under statute or not at all.
54 Geo. III.,
The period of copyright was enlarged to twenty-eight years from publication, or the life of the author, whichever should be the longest, by a subsequent Act since repealed.
This being the state of the law as regards literary copyright, it was not considered to be free from question whether a musical composition stood on the same footing as a book; but the affirmative was held after some discussion, and a sheet of music was also held to come within the definition of a "book" within the meaning of the Copyright Acts.
3 & 4 Will.
5 & 6 Vict.,
By an Act of King William the Fourth, the sole liberty of representing unpublished dramatic pieces was conferred upon the author or his assignee; c. 16. the Act extended to the whole of the British Dominions, and the author of published dramatic pieces was to be entitled until twenty-eight years from publication, or if he should be then living, during the residue of his natural life, to the sole liberty of representing such pieces, and penalties were imposed upon infringers. Somewhat analogous provisions were contained in the Copyright Amendment Act, and the remedies for infringement of property in dramatic pieces were extended. Copyright in every book to be published in the life-time of the author after the passing of the Act was conferred upon such author for the period now existing, viz.: for seven years from his death, or the period of forty-two years, whichever should be the longest. to books published after the death of the author, copyright was conferred for an absolute period of forty-two years. It is unnecessary for the purposes of this Introduction to refer to the stringent provisions contained in the Act with reference to registration and delivery of copies. It is important to note that all the provisions of the Act of William the Fourth were reserved to dramatic authors.
These statutes have substantially superseded all questions as to common law or inherent copyright in musical and dramatic pieces, and regulate the rights of authors of such pieces so far as regards the United Kingdom. In the year 1844 it was found necessary for meeting the exigencies of the period to adjust the international rights and liabilities of countries with which Great Britain was frequently brought into contact, and the ground was laid out and prepared for treaties dealing with the subjectmatter. The machinery by which this desirable result was to be attained was as follows:-Legislative enactments empowering the Queen by Order in Council to confer copyright in England upon foreign authors or composers during the same period to which authors of similar works first published in the United Kingdom would have been entitled. These provisions extend to the sole liberty of representing dramatic pieces and musical compositions, as well as to the right of multiplying copies of such works. Provisions as to registration were inserted in the Act.
By a subsequent Act passed in the year 1852, a similar power was given to Her Majesty with reference to the translation of books emanating from foreign authors; an Order in Council might be levelled at the publication in the British Dominions of such translations, or against the representation thereof. By a somewhat obscure provision however, fair adaptations to the English stage of foreign dramatic works were excepted from the operation of the Act, and registration was made necessary.
The power so conferred on Her Majesty was exercised in the first instance by a Convention authorised by an Order in Council under the authority of the last-mentioned Act; by such Convention British and Prussian subjects had conferred upon them reciprocal rights with regard to works published in either of the countries parties to the treaty; the effect being that, on compliance with certain