leges of the copyright laws of the United States within the United States.75 The Hawaiian law continued to be the source of copyright protection within Hawaii itself. By the act of April 30, 1900, which took effect June 14, 1900,76 congress expressly repealed the Hawaiian Copyright Act, and extended the constitution and laws of the United States to the Territory of Hawaii, since which time copyright in Hawaii has been governed by the copyright laws of the United States, and registration for copyright protection has been made for works by Hawaiian authors." 77 and of citizens of the United States to obtain copyright in the Spanish islands, under the international provisions of the copyright laws of the two nations,78 was wholly suspended." From the time Porto Rico and the Philippine Islands came under the jurisdiction and control of the United States, the Spanish copyright and patent laws formerly in force in these islands ceased to be longer in force and copyrights or patents could no longer be obtained thereunder, because such laws involved a sovereign grant of public rights and franchises.8 But existing copyrights and patents which had fully vested as private property continued in force in accordance with the general principles of international law,82 and as specifically provided by the treaty of Paris.83 During the military occupation of 82. See War [40 Cyc 394]. [73] 4. Porto Rico. During the existence of a state of war between Spain and the United States, the reciprocal rights of the Spanish inhabitants of the island to obtain copyright in the United States, [1888] c 3; Copyright Office Bul. No. 3 p 80). 75. Act March 3, 1891 (26 St. at L. 1106 c 565 § 1, 13 Rev. St. Suppl. 951-954). [a] Construction and operation of statute. (1) The attorney-general, | in an opinion dated Dec. 2, 1898, held that the inhabitants of Hawaii were not at that time entitled to the benefit of the United States copyright laws, on the ground that congress had not affirmatively legislated to that effect. 22 Op. Atty.-Gen. (Griggs) 268. (2) But this decision was overruled by the attorney-general in an opinion dated July 6, 1904, where the same question arose in regard to the Philippine Islands. 25 Op. Atty.-Gen. (Moody) 178. (3) In the meantime, the copyright laws of the United States had been expressly extended to Hawaii. See infra note 26. 83. Sociedad de Autores Españoles v. Americo Marin, 4 Porto Rico Fed. 288; Treaty of Paris art XIII (30 St. at L. 1760) (which provides: "The rights of property secured by copyrights and patents acquired by Spaniards in the Islands of Cuba, and in Porto Rico, the Philippines, and other ceded territories, at the time of the exchange of the ratifications of this treaty, shall continue to be respected"). [a] Spanish law in Porto Rico."The complainant is said to be a Spanish corporation with its headquarters in that Kingdom. That it was organized and exists for the purpose of protecting the authors and owners of Spanish copyrighted works, particularly literary, scientific, and dramatic works or compositions. It seems that it is almost wholly a society of authors, and that 76. 31 St. at L. 141 c 339 § 7. 77. Copyright Office Bul. No. 3 p all of its members, who comprise 78. 78. See infra § 158. 79. 22 Op. Atty.-Gen. (Griggs) 268, 269 (who said, under date of Dec. 2, 1898: "If any inhabitants of Puerto Rico, Cuba, or the Philippine Islands claim the privilege of copyright as Spanish subjects, that right at present is subject to the well known rule that hostilities between two nations suspend intercourse and deprive citizens of the hostile nations of rights of an international character previously enjoyed. I am of opinion that so long as a state of war exists between Spain and the United States Spanish subjects have no right to the privileges of copyright conferred upon Spanish citizens by proclamation prior to the declaration of war"). Effect of war generally see War [40 Cyc 320]. practically the entire list of such authors in the Kingdom of Spain, assign their copyrights to it, as soon as they are obtained, and the corporation thereafter, through its agents, collects all royalties due such authors or owners, and pays the same to them or their heirs, less reasonable charges, as may be proper, and protects the copyright all over the world, wherever it exists. respondent is an actor and the head of a company of actors known as, 'La The Compañia Zarzuela Española.' He came and brought his company to Porto Rico recently from Spain, and his company is now playing in all of the theaters of the island, and is acting different Spanish plays at said theaters nightly, without paying any royalty to complainant therefor, but refusing so to do, all of which plays are alleged to be the property of the complainant. The respondent, after being served with an order to show cause, appeared by counsel and admitted that complainant is a Spanish corporation, organized and existing under the laws of Spain, as claimed, and that it is, in Spain, the owner of the Spanish copyright of the enumerated works and compositions, but denies that the complainant has any right to sue at all in Porto Rico, or that it has any copyright in the island on the works or 80. 1 Op. Atty.-Gen. (Harlan) 181, 182 (Porto Rico) (where it is said: "The Spanish law in force in Porto Rico contained provisions for the issuing of letters patent in the island and was in force here at the time of the American occupation. But as the insular patent system was a part of the Spanish national system for protecting property rights in inventions, it has been thought that upon the institution here of an American government the right of the insular authorities to issue let-plays in question, for the reason that ters patent was terminated and, together with the body of Spanish legislation on that subject, ceased to be in force in the island. This thought is strengthened by the suggestion that the right to issue letters patent is one that generally belongs to the sovereign, and as the sovereignty of this island is lodged in the government at Washington, the military authorities then in possession of the island were not competent to act upon such matters"); 1 Op. Atty.-Gen. (Harlan) 74 (Porto Rico). 81. See Philippine Sugar Est. Dev. Co. v. U. S., 39 Ct. Cl. 225 (not a copyright or patent case, but involving the principle). The said dramatic works, plays, etc., were never recorded in the public registry of Porto Rico, as it is claimed should have been done under the law. complainant admits that it has never caused any of the dramatic works or plays in question to be recorded in Porto Rico, but insists that its registry of the same at headquarters in Spain, and its ownership of the same there, gave it a copyright thereon in Porto Rico, which was in existence at the date of the treaty of Paris, on the 11th day of April, 1899, and that, under the terms of that treaty, it is now the owner of copyrights thereon in Porto Rico. The only ques tion to be decided is whether or not. under that clause of the treaty, the 81 We complainant, as to the works in question, has a copyright in Porto Rico at the present time, in view of the fact that it never caused the same to be recorded in the registry of the island. Of course, under clause 2 of art. 6 of the Constitution of the United States, treaties are the supreme law of the land, and the courts in every state are bound thereby. We find that the present copyright law of Spain was enacted on the 10th of January, 1879. 9 Alcubilla, Diccionario de Administracion, p. 39. And that, by art. 56 thereof, it was put in force in the island of Porto Rico three months after its date, and that, on the 3d of September, 1880, an elaborate set of regulations were enacted for its enforcement. Ibid. pp. 43 et seq. And that, in addition, on the 5th of May, 1887, these regulations were also extended to Porto Rico. Ibid. p. 55. are somewhat troubled, after an examination of this Spanish copyright law, because we find that it gives a copyright to an author for his entire lifetime, and to his heirs for eighty years thereafter, provided a new edition or copy of the work is published as often as once in twenty years; otherwise it becomes public property. We find that our own copyright law, 2 Fed. Stat. Anno. 260, has life for only twenty-eight years to the author, and fourteen years to his family; and we wonder whether the language of the treaty, above quoted, is intended to give this much longer term to Spanish copyrights in Porto Rico. We are satisfied, from an examination of the elaborate Spanish copyright law referred to, as well as of the regulations regarding the same, that, although there was established a local copyright registry in Porto Rico and in other provinces of Spain, even in those that were not ultramarine, still, such registries were intended only as a convenience for the provincial residents, and that the real title to copyrights in that country is the national registry at Madrid. Therefore we feel bound to hold that any copyright duly secured at headquarters, in Spain, and existing at the date of the treaty, was also in force in Porto Rico; and it being admitted that the copyrights in question were, at such time, the property of the complainant, and duly registered at headquarters, the same now exist in Porto Rico. Therefore, the respondent, having admitted that he is using such dramatic works, musical and other compositions, etc., is guilty of a violation and infringement of such copyright, and should be enjoined from so doing unless he shall pay the royalties due therefor, as requested, and it is so ordered. This decision may be of such far-reaching importance as that we feel, in justice to our government, a copy of the same should be certified by the clerk to the Honorable the Attorney General of the United States, so that, if he shall deem proper, he may cause the United States attorney for the island to take these Spanish islands, and before congress acted in the premises, the copyright laws of the United States did not extend to this island territory.84 But by the act of April 12, 1900,85 congress expressly extended the general statutory laws of the United States to Porto Rico, and since that time the copyright and patent laws of the United States have the same force and effect in Porto Rico as in the United States.8 86 [§ 74] 5. Canal Zone. By an executive order of the war department, effective April 15, 1907, the copyright laws of the United States were extended to, and made effective in, the Canal Zone.87 [75] 6. Philippine Islands. Down to the time an appeal to the Supreme Court of By con 84. "The Insular Cases," [Door v. U. S., 195 U. S. 138, 24 SCt 808, 49 L. ed. 128, 1 AnnCas 697; The Diamond Rings, 183 U. S. 176; Dooley v. U. S., 182 U. S. 222, 21 SCt 762, 45 L. ed. 1074; De Lima v. Bidwell, 182 U. S. 1, 21 SCt 743, 45 L. ed. 1041] (the net result of these cases, pertinent to the subject under consideration, may be summarized as follows: the treaty of cession Porto Rico and the Philippines ceased forthwith to be foreign territory, and became domestic territory appurtenant and belonging to the United States and subject to its jurisdiction. but not incorporated into the United States. Therefore the constitution and laws of the United States did not of their own inherent force pass to, and become operative in, such newly acquired territory, but, trary, became applicable only when on the so extended by action of congress). 85. 31 St. at L. 77 c 191 § 14. 86. 1 Op. Atty.-Gen. (Harlan) 181, 183 (Porto Rico) (where it was said: "There seems to be no sound reason for doubting that the effect of this provision was to extend Rico the entire body of federal legto Porto islation in respect to letters patent and the protection of property rights thereunder. It may safely be concluded therefore that property rights in inventions acquired under federal legislation in that behalf, whether before or after the treaty of peace, must be respected in Porto Rico as other property rights are respected. Nor it is to be doubted that the federal courts in Porto Rico and elsewhere would take this view of the question"). 87. Order March 12, 1907 (Copyright Office Bul. No. 3 p 146c). 88. Act July 1, 1902 (32 St. at L. 691 c 1369). 89. See supra § 73. 90. See supra § 73. 91. Act July 1, 1902 (32 St. et L. [§§ 73-77 of the United States, and to receive the protection thereof within the limits of the United States.9 The present copyright act was, however, extended to the Philippine Islands, as well as to other outlying territorial possessions of the United States, by plain implication, as it contains many provisions showing that congress intended it to be so operative, and which would be wholly nugatory unless it was so operative. 96 It seems also that copyrights obtained under prior acts, and subsisting when the act of 1909 took effect, were by that act made operative in the Philippines and must be there respected. It must be admitted, however, that in many respects the application of the present law to the "outlying territorial possessions of the United States" is far from clear. 97 [76] 7. Alaska. The United States are operative in Alaska.98 The copyright laws of the [77] 8. Imperial and Colonial Copyright in British Empire-a. Imperial Copyright.99 British Empire consists of the United Kingdom,1 crown colonies and protectorates,2 and self-governing dominions.3 Cyprus, although nominally in the dominion of Turkey, is under British administration.* The imperial parliament has absolute power to legislate for the whole and every part of the British possessions.5 But it is a rule of construction that statutes passed by the imperial parliament operate only in unless an intention to make them operative elsethe United Kingdom, where in the British possessions is manifested by the act. In accordance with this rule the Copyright 92. 22 Op. Atty.-Gen. to countries"). the copyright laws to the Philippines, 179 [overr 22 Op. Atty.-Gen. (Griggs) 96. "Copyright in Porto Rico and 5. Graves v. Gorrie, [1903] A. C. 496; Routledge v. Low, L. R. 3 H. L. 100; Black v. Imperial Book Co., 8 Ont. L. 9 [dism app 5 Ont. L. 184]; Hubert v. Mary, 15 Que. Q. B. 381 [aff 29 Que. Super. 3341; Ex p. Dobson, 12 New Zeal. L. 171. 6. Graves v. Gorrie, [1903] A. C. H. L. 100. 496 [dism app 3 Ont. L. 697 (dism 266])]; Routledge v. Low, L. R. 3 app 1 Ont. L. 309 [dism app_32 Ont. V. "Statutes passed by the Imperial Parliament are to be treated prima ply to facie as intended to apply to the order that they may be held to apUnited Kingdom only, and that in the colonies as well, there must be upon their face express language shewing an intention that they should be so applied." Gorrie, 1 Ont. L. 309, 313. Graves "A reference to the various Copyshews that whenever the area of proright Acts passed by the Legislature tection of a copyright granted by any of the Acts was intended to include the colonies, the intention was manifested Graves v. Gorrie, 3 Ont. L. 697, 698, by express words." 699 [dism app 1 Ont. L. 309 (dism app 32 Ont. 266, and app dism (1903) A. C. 496)]. "In Routledge v. Low, L. R. 3 H. L. 100, Lord Cranworth, in discussing that case, which arose under the Act 5 & 6 Vict. ch. 45 (Imp.), said: "The British Parliament in the time of Queen Anne must be taken prima facie to have legislated only for Great Britain, just as the present Parliament must be taken to legislate only for the United Kingdom and not for the colonial dominions of the Crown. Parliament to make laws for every It is certainly within the power of part of Her Majesty's dominions, and this is done in express terms by the tion.'" Graves v. Gorrie, supra. 29th section of the Act now in ques[a] Reason for rule.-"As to the Geo. V c 46 § 28). . The words in the 3rd , same title, page and note number 15 Act of 1842,7 the Dramatic Copyright Act of 1833,8 which was subsequently extended so as to include the performing right in musical compositions, the International Copyright Act of 1844,10 and the International Copyright Act of 188611 were of imperial scope and conferred protection to copyrights secured in accordance with their terms throughout the whole of the British Empire.12 On the other hand, the Fine Arts Copyright Act of 1862,13 the engraving copyright acts,14 the Sculpture Copyright Act,1 and the Lectures Copyright Act 16 did not contemplate protection in the colonies, and copyright thereunder is accordingly limited to the United Kingdom.17 Protection elsewhere for these classes of works must be obtained by compliance with the local law of the colony where such protection is sought.18 Colonial legislation, of course, confers copyright only within the colony enacting it,19 and even there it can not prevail over inconsistent i are, 'every book which shall be pub- Jersey, and lished,' without saying where; but it would be very inconsistent with_the usual practice of the Imperial Parliament to create a system of copyright law for all the colonies and dependencies in the empire, many of which have representative institutions of their own, without any consultation with those colonies or dependencies, and without any consideration whether a uniform and arbitrary system, such as that introduced by this Act, would be suitable to the varied circumstances, states of civilization, and systems of jurisprudence and judicature in these different colonies and possessions." Routledge v. Low, L. R. 3 H. L. 100, 108 (per Lord Chancellor Cairns). 7. St. 5 & 6 Vict. c. 45 § 29 (providing: "This Act shall extend to the United Kingdom of Great Britain and Ireland, and to every_Part of the British Dominions"); Routledge v. Low, L. R. 3 H. L. 100; Black v. Imperial Book Co., 8 Ont. L. 9 [dism app 5 Ont. L. 184]; Smiles v. Belford, 23 Grant Ch. (U. C.) 590 [app dism 1 Ont. A. 436]; Morang v. Publishers' Syndicate, 32 Ont. 393; MacMillan v. Khân Bahadur Shamsul Ulama M. Zaka, [1895] 19 Indian L. R. (Bombay) 557. 8 "The original copyright Act, Anne ch. 19, protected the copyright in books granted by that Act throughout Great Britain only. The Act, 41 Geo. III., ch. 107 (Imp.), extended the area of protection throughout the whole of the United Kingdom and the British dominions in Europe; and the Act, 54 Geo. III. ch. 156 (Imp.), extended the area of protection over the whole of the British dominions. These Acts were repealed by the Act 5 & 6 Vict. ch. 45 (Imp.), which by sec. 29 provided that it should extend to Great Britain and Ireland, and to every part of the British dominions." Graves v. Gorrie, 3 Ont. L. 697, 699 [dism app 1 Ont. L. 309 (dism app 32 Ont. 266, and app dism [1903] A. C. 496)]. "The second question is as to the area over and through which protection is granted by the Act; and I cannot doubt that this area is the whole of the British dominions. The original Copyright Act, the 8 Anne, c. 19, protected copyright throughout Great Britain. The 41 Geo. 3. c 107, extended this protection over the whole of the United Kingdom, and the British dominions in Europe. The 54 Geo. 3, c. 156, extended the protection still farther over the whole of the British dominions. And the 15th section of the present Act repeats in substance the same area for the purpose of protection." Routledge v. Low, L. R. 3 H. L. 100, 110 (per Lord Chancellor Cairns). 8. St. 3 & 4 Wm. IV c 15 § 1 (which conferred the exclusive performing right "in any Part of the United Kingdom of Great Britain and Ireland, in the Isles of Man, imperial legislation.20 The Colonial Copyright Act of 1847, commonly known as the Foreign Reprints Act,21 authorizes the Crown, by Order in Council, to suspend the prohibition against importation into the colonies of works protected by an imperial copyright, where such colonies make satisfactory provisions for the protection of the rights of the owner of the British copyright. Various colonies took advantage of this act and foreign reprints were permitted to be imported into such colonies notwithstanding they were the subject of an imperial copyright.22 In practice, the protection afforded the British owner has proved wholly illusory. 23 The act of 1911, which is the present law, except such provisions as are expressly restricted to the United Kingdom,2 runs throughout the whole of the British possessions except the self-governing Guernsey, or in any 9. St. 5 & 6 Vict. c 45 § 20. 11. St. 49 & 50 Vict. c 33; Hubert 12. See cases supra notes 7-11. 13. St. 25 & 26 Vict. c 68; Graves v. Gorrie, [1903] A. C. 496 [dism app 3 Ont. L. 697 (dism app 1 Ont. L. 309 [dism app 32 Ont. 266])]; Tuck v. Priester, 19 Q. B. D. 629. 14. Engraving Copyright Act, 1734 (8 Geo. II c 13); Engraving Copyright Act, 1767 (7 Geo. III c 38). "The Acts granting copyright in engravings and similar works of art, 8 Geo. II. ch. 13, 7 Geo. III. ch. 38, and 17 Geo. III. ch. 57, did not extend the area of protection beyond Great Britain until the Act 6 & 7 Will. IV. ch. 59 (Imp.), extended the area of protection to Ireland." Graves v. Gorrie, 3 Ont. L. 697, 699 [dism app 1 Ont. L. 309 (dism app 32 Ont. 266, and app dism [1903] A. C. 496)]. 15. Sculpture Copyright Act, 1814 (54 Geo. III c 56). "The Act granting copyright in sculpture, 38 Geo. III. ch. 7 (Imp.), did not extend the area of protection beyond Great Britain and the Act 54 Geo. III. ch. 56 (Imp.), did not extend it beyond the United Kingdom." Graves c. Gorrie, 3 Ont. L. 697, 699 [dism app 1 Ont. L. 309 (dism app 32 Ont. 266, and app dism [1903] A. C. 496)]. " 16. The Act granting copyright in lectures, 5 & 6 Will. IV. ch. 65 (Imp.), did not extend the area of protection beyond the United Kingdom.' Graves v. Gorrie, 3 Ont. L. 697, 700 [dism app 1 Ont. L. 309 (dism app 32 Ont. 266, and app dism [1903] A. C. 496)]. 17. See supra notes 13-16. 18. See cases supra notes 13-16. 19. Routledge v. Low, L. R. 3 H. L. 100; Ex p. Dobson, 12 New Zeal. L. 171. 20. Hubert v. Mary, 15 Que. K. B. 381; Ex p. Dobson, 12 New Zeal. L. 171. [a] Inconsistent legislation.-"As already stated, the contention on behalf of this right is based on the fact that "The [English] International Copyright Act, 1844,' is not referred to in the 3rd section of the New Zealand Act. But undoubtedly that Act has force throughout the British dominions; its very terms show 24 it to be so; section 9 of "The Inter- 21. reEx 22. Morang v. Publishers' Syndicate, 32 Ont. 393; Copinger Copyright (5th ed) p 333; MacGillivray Copyright p 187. See also infra § 78 text and notes 62-67. [a] The object of this statute was to enable the people in the colonies to obtain books cheaper than they could import them from England. It was impracticable for the British proprietor to publish a cheap colonial edition because he could not prevent importation of such edition into Great Britain. Copinger Copyright (5th ed) P 333; MacGillivray Copyright p 187. 23. Birrell Copyright p 215 et seq. "Altogether twenty colonies have taken advantage of this Act. It has been found, however, that the protecting provisions are of little value, and that the duties which are supposed to be levied on foreign reprints for the benefit of the British author are continually evaded, and the colonies under the Foreign Reprints Act are overrun with foreign reprints of popular books which, coming in practically free of duty, make the authors' copyright in such colonies absolutely valueless." MacGillivray Copyright p 187. 24. These are only the provisions relating to summary remedies. 1 & 2 Geo. V c 46 §§ 11-13. St. dominions,25 as to which special, and somewhat complicated, provisions are made.26 Accordingly, a copyright obtained under the act of 1911 affords protection in the United Kingdom and all British colonies other than the self-governing dominions,27 and by order in council the act may be extended with like effect to British protectorates and to Cyprus, subject to the provisions of the order.28 It has been so extended as noted below.29 lature of any British possession to which the act The legisextends may modify or add to any of its provisions, but except so far as such modifications and additions relate to procedure and remedies, they apply only to works whose authors were, at the time of making the work, resident in the possession, and to works first pubished in the possession.30 Self-governing dominions. The act of 1911 does not extend to any of the self-governing dominions,81 unless declared by the legislature of that dominion to be in force therein either without any modifications or additions, or with such modifications and additions relating exclusively to procedure and remedies or necessary to adapt the act to the circumstances of the dominion, as may be enacted by the legislature of such dominion.32 But in any selfgoverning dominion to which the act does not extend, all the former statutes repealed by the act continue in force so far as operative in that dominion.33 The dominion legislature may at any time repeal as to such dominion all or any copyright statutes, including the act of 1911, saving existing rights; on such repeal of the act of 1911, or of any part thereof, by a dominion, such dominion ceases to be a dominion to which such act extends.34 Where the local legislation of a self-governing dominion grants to nonresident British subjects, and to foreigners resident in such parts of the British dominions to which the act of 1911 extends, rights "substantially identical" with those conferred by that act, on certificate to that effect by the secre 25. 26. 27. p 334. See supra note 3. See infra text and notes 31-37. St. 1 & 2 Geo. V c 46 § 28. 28. 29. Order of June 24, 1912 (statutory Rules and Orders [1912] No. 912) provides: "The Copyright Act, 1911, shall apply to Cyprus, and to the following territories under His Majesty's protection, Bechuanaland Protectorate, East Afnamely, the rica Protectorate, Gambia Protectorate, Gilbert and Ellice Islands Protectorate, Northern Nigeria Protectorate, Northern Territories of the Gold Coast, Nyasaland Protectorate, Northern Rhodesia, Southern Rhodesia, Sierra Leone Somaliland Protectorate, Nigeria Protectorate, Solomon ands Protectorate, Swaziland, UganIslda Protectorate, and Weihaiwei." 30. St. 1 & 2 Geo. V c 46 § 27. 31. Seé supra note 3. Protectorate, 32. St. 1 & 2 Geo. V c 46 § 25(1). 33. St. 1 & 2 Geo. V c 46 §§ 26(2), 36. See cases infra § 78, notes 50-55. 34. St. 1 & 2 Geo. V c 46 § 26(1). [a] The old statutes have been repealed by any colony. not 35. St. 1 & 2 Geo. V c 46 § 25(2). [a] The object of this provision is to enable a self-governing dominion to discriminate against the citizens of foreign countries, and to prevent importation into the colony of their works notwithstanding they covered by British copyright. Copinger Copyright (5th ed.) 335, 336. pp are rates see supra § 77. [§§ 77-78 tary of state, such dominion is to be treated as if it were one to which the act extended.35 local law of a self-governing dominion grants "adeWhere the quate protection" within the dominion for the works of nonresident British subjects, the benefit of the Imperial Act may be extended to authors resident in such dominion, and to works first published in that dominion by an order of the king in council, to the extent, and on the conditions, specified in such order. rights in the self-governing dominion, but the govSuch order confers no ernor in council of a self-governing dominion may by like order confer like rights in that dominion.3 These provisions establish between the self-governing dominions and the home government a scheme of reciprocal copyright protection much like that established by the international provisions in the statutes of the United States.37 36 39 [78] b. Colonial Copyright38-(1) Canada. Since Canada has not yet declared the British Act of 1911 to be in force, it does not extend to Canada,3 but for the same reason the former English copyright acts of imperial scope are not repealed and are still in force as to Canada.40 America Act of 1867 confers on the dominion parliaThe British North ment, as distinguished from the provincial legislatures, exclusive power to legislate on the subject of copyright in the Dominion of Canada," subject of course to the paramount power of the imperial prior imperial copyright legislation applicable to parliament.* 42 This act did not abrogate or repeal the colonies.* 43 In 1875 a copyright act was passed quite similar in form to the former United States statute. This statute, as amended, is still in force, and is the fundamental copyright law in Canada.44 This act was confirmed by the imperial parliament in an act known as the Canada Copyright Act of 1875,45 but such confirmatory act did not operate as a repeal of prior imperial copyright statutes applicable to Canada, nor substitute the Canadian act 39. See supra § 77. Imperial Book Co. v. Black, 35 [a] "Exclusive" power construed. international question, and the Im- 36. St. 1 & 2 Geo. V c 46 § 26(3). Act, 37. See infra §§ 157-160. 38. no Crown colonies and protecto-to that case and in following it as one of its own previous decisions, Hubert v. Mary, 15 Que. K. B. 381. Ont. L. 9 [dism app 5 Ont. L. 184, 44. 45. was Can. Rev. St. (1906) c 70. authorities, because it was in conSt. 38 and 39 c 53. "The former Copyright Act of 1872, disallowed by the Imperial flict with Imperial legislation. But in the notification of disallowance, Lord Carnarvon recognized the conAct, had power to deal with Colonial copyright within the Dominion, and stitutional position that the Parliaintimated his hope that a measure ment of Canada under the B. N. A. would be passed which, while precopyright works in the United Kingserving the right of the owner of dom and Ireland, would give effect to the views of the Canadian Government and Sessional No. 28. Parliament: Canada Papers, 1875, vol. The outcome of these negoviii, tiations is to be found , same title, page and note number 47 for the Copyright Act of 1842.46 The more im- 50 5 Terr. L. 30. 55 the copyright given by the Canadian and English statutes is concurrent,53 although not coterminous, that under the Canadian statute being limited to Canada. Where the copyrights under the Canadian and English acts are held by different owners, the first in point of time confers the paramount right.5 But protection in Canada for paintings, drawings, photographs, engravings, and other artistic works can be obtained only by compliance with the Canada Copyright Act,56 because the English statutes giving copyright in these subjects were limited in their operation to the United Kingdom." The possession under the local Act or ordinance." 8 Halsbury L. Eng. p 189. present Act, passed in 1875, and "The first question in this appeal 46. Graves v. Gorrie, [1903] A. C. 496; Smiles v. Belford, 23 Grant Ch. (U. C.) 590. [a] Purpose and effect of statute.(1) "There is nothing repugnant to the 5 & 6 Vic. in our Act of 1875, they may both well stand together. But it is repugnant to the Order of Her Majesty in Council, under the 10 & 11 Vic., which permitted pirated copies to be imported on payment of a duty, while our Act says, if copyright is secured here pirated copies shall not be imported, and it was on this account that an Act had to be obtained to confirm it." Smiles v. Belford, 23 Grant Ch. (U. C.) 590, 604 (per Proudfoot, V.). (2) "The Canada Copyright Act, 1875, does not by s. 3, make the Canadian Act set out in the schedule an Imperial Act applicable to Canada. The section simply removes a difficulty which had arisen in Canada by reason of s. 91 of the British North America Act and some Orders in Council. Copyright is placed by that Act under the Dominion Legislature; and, having regard to some Orders in Council, it was doubtful by whom the Act in the schedule should be assented to. The effect of the Act was considered by the Court of Appeal for Ontario in Smiles v. Bedford, 1 Ont. A. 436, and it is plain from that case, and indeed from the Act itself, that it in no way assists the plaintiffs." Graves v. Gorrie, [1903] A. C. 496, 499 (per Lord Lindley). 47. See infra §§ 162, 234, 242, 338, 364, 370, 373, 437, 446, 451. 48. See infra § 162, and generally infra § 144 et seq. Citizens of United States, right to obtain copyright under Canadian statute see infra § 162. 49. See infra § 234. 50. Routledge v. Low, L. R. 3 H. L. 100; Imperial Book Co. v. Black, 21 T. L. R. 540 [dism app 8 Ont. L. 9 (dism app 5 Ont. L. 184)]; Smiles v. Belford, 1 Ont. A. 436 [dism app 23 Grant Ch. (U. C.) 590]; Morang v. Publishers' Syndicate, 32 Ont. 393; Griffin v. Kingston, etc., R. Co., 17 Ont. 660, 666; Anglo-Canadian Music Pub. Assoc. v. Suckling, 17 Ont. 239 [dism app 27 Que. Super. 485, 5 Que. Pr. 3511; Times v. Mail Printing Co.. 14 OntWN 627 (Peary's discovery of the north pole); Oman v. Copp-Clark Co., 1 OntWR 542; Carte v. Dennis, in [a] Simultaneous publication 54. Routledge v. Low, L. R. 3 H. L. 100, 116; Black v. Imperial Book Co., 8 Ont. L. 9 [dism app 5 Ont. L. 1841; Smiles v. Belford, 23 Grant Ch. (U. C.) 590 [app dism 1 Ont. A. 436]. "Our attention was called to a local law of Canada with regard to copyright, but it was not contended that it would prevent a native of Canada from acquiring an English copyright which would extend to Canada as well as to all other parts of the British dominions, although the requisitions of the Canadian law had not been complied with. It is unnecessary to decide what would be the extent and effect of a copyright in those colonies and possessions of the Crown which have local laws upon the subject. But even if the statute of 5 & 6 Vict. applies at all to that case, I do not see how such a copyright can extend beyond the local limits of the law which creates it." Routledge v. Low, supra. 55. Anglo-Canadian Music Publishers' Assoc. v. Suckling, 17 Ont. 239, 241, 243. [b] Registry at Stationers' Hall (1) is necessary to confer a right to sue for infringement of such a copyright. Morang v. Publishers' Syndicate, 32 Ont. 393, 21 CanLTOccNotes 77; Times V. Mail Printing Co., 14 OntWR 627. See also infra §§ 225-231. (2) "Stationers' Hall is still open for registration in case it is desired to take any action in Canada by virtue of a British copyright, although such registration is "A very clear distinction is to be no longer required for copyright observed in this Act, R. S. C. ch. within the United Kingdom." Copy-62, between works which are of prior right in Canada, 49 AmLRev 680. 51. Liebler v. Harkins, (N. S.) 1 EastLR 157; Carte v. Dennis, 5 Terr. L. 30. "The Act 51-2 Vic. c. 17 [musical] is, I think, in force here. The Act 3 & 4 Wm. IV. c. 15, [dramatic] extended to Canada by its terms, and is in force here not by virtue of the North-West Territories Act, That being So, amendments or changes made since 1870 are to be observed here." Carte v. Dennis, 5 Terr. L. 30, 59. 52. See supra § 77. Requirements for securing copyright under English statutes see infra §§ 223-233. 53. Anglo-Canadian Music Publishers' Assoc. v. Suckling, 17 Ont. 239; Times v. Mail Printing Co., 14 OntWR 627, 629. British copyright, and those which are of prior Canadian Copyright. If there is prior British copyright, and thereafter Canadian copyright is obtained by production of the work, then by section 6, that local copyright is subject to be invaded by the importation of lawful British reports [reprints]. But if the Canadian copyright is first on the part of the author or his assigns, then under section 4 the monopoly is secured from all outside importation." Anglo-Canadian Music Publishers' Assoc. v. Suckling, supra. "Very different was the question agitated in Smiles v. Belford, 23 Grant Ch. (U. C.) 590. There the owner of the British copyright sought to restrain the unauthorized use of his work in Canada, no Canadian copyright being involved. But here the British authors before publication or copyright in England, assign their right in the work over Canadian territory, upon which a perfect Canadian copyright is obtained prior to publication or copyright in England. My reading of the Act is such as to protect fully this Colonial copyright. It does not purport to inhibit dealers in England from sellBir-ing to whom they will; but if the "Here we have an example of what "If they did register there [in Times [a] "In the case of a work first published in a British possession, where a local law or ordinance gives copyright to the author, the latter is entitled to copyright in the United Kingdom under the International Copyright Act, 1886 (49 & 50 Vict. c. 33), s. 8, as well as in such British purchasers seek to introduce the copies so purchased into Canada, then the Act applies, and rightly so, as against an English author who has previously parted with his rights in Canada, and all taking under him in England." Anglo-Canadian Music Publishers' Assoc. V. Suckling, supra. 56. Graves v. Gorrie, [1903] A. C. 496, 500 [dism app 3 Ont. L. 697 (dism app 1 Ont. L. 309 [dism app 32 Ont. 266])]. "The short result is that those who want copyright in Canada for paintings, drawings, and photographs must obtain such copyright by complying with the laws of that country." Graves v. Gorrie, supra. 57. See supra § 77. |