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on right in the Spanish islands, under the international

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leges of the copyright laws of the United States of within the United States.75 The Hawaiian law continued to be the source of copyright protection provisions of the copyright laws of the two within Hawaii itself. By the act of April 30, nations,78 was wholly suspended.79 From the time 1900, which took effect June 14, 1900,10 congress Porto Rico and the Philippine Islands came under expressly repealed the Hawaiian Copyright Act, the jurisdiction and control of the United States, and extended the constitution and laws of the the Spanish copyright and patent laws formerly in United States to the Territory of Hawaii, since force in these islands ceased to be longer in force which time copyright in Hawaii has been governed and copyrights or patents could no longer be by the copyright laws of the United States, and obtained thereunder, so because such laws involved

81 registration for copyright protection has been made a sovereign grant of public rights and franchises.8 for works by Hawaiian authors."

But existing copyrights and patents which had fully [0 73] 4. Porto Rico. During the existence of vested as private property continued in force in a state of war between Spain and the United States, accordance with the general principles of internathe reciprocal rights of the Spanish inhabitants of tional law,82 and as specifically provided by the the island to obtain copyright in the United States, treaty of Paris.83 During the military occupation of (1888) c 3; Copyright Office Bul. 82. See War 140 Cyc 394).

complainant, as to the works in ques. No. 3 p 80).

83. Sociedad de Autores Españolestion, has a copyright in Porto Rico 75. Act March 3, 1891 (26 St. at V. Americo Marin, 4 Porto Rico Fed. at the present time, in view of the L. 1106 c 565 g 1, 13 Rev. St. Suppl. 288; Treaty of Paris art XIII (30_St. fact that it never caused the same to 951-954).

at L. 1760) (which provides: “The be recorded in the registry of the taj construction and operation of rights of property secured by copy- island. Of course, under clause 2 of statute-(1) The attorney-general, rights and patents acquired by Span- art. 6 of the Constitution of the in an opinion dated Dec. 2, 1898, held iards in the Islands of Cuba, and in United States, treaties are the suthat the inhabitants of Hawaii were Porto Rico, the Philippines, and other preme law of the land, and the courts not at that time entitled to the bene- ceded territories, at the time of the in every state are bound thereby. fit of the United States copyright exchange of the ratifications of We find that the present copyright laws, on the ground that congress this treaty, shall continue to be re- law of Spain was enacted on the had not affirmatively legislated to spected").

10th of January, 1879. 9 Alcubilla, that effect. 22 Op. Atty.-Gen. (Griggs) [a] Spanish law in Porto Rico.—Diccionario de Administracion, p. 39. 268. (2) But this decision was over- "The complainant is said to be And that, by art. 56 thereof, it was ruled by the attorney-general in an Spanish corporation with its head- put in force in the island of Porto opinion dated July 6, 1904, where the quarters in that Kingdom. That it Rico three months after its date, same question arose in regard to the was organized and exists for the pur- and that, on the 3d of September, Philippine Islands. 25 Op. Atty.-Gen. pose of protecting the authors and 1880, an elaborate set of regulations (Moody) 178. (3) In the meantime, owners of Spanish copyrighted

enacted for its enforcement. the copyright laws of the United works, particularly literary, scien- | Ibid. pp. 43 et seq. And that, in States had been expressly extended tific, and dramatic works or composi- | addition, on the 5th of May, 1887, to Hawaii. See infra note 76.

tions. It seems that it is almost these regulations were also extended 76. 31 St. at L. 141 c 339 $ 7. wholly a society of authors, and that to Porto Rico. Ibid. p. 55.

We 77. Copyright Office Bul. No. 3 p all of its members, who comprise are somewhat troubled, after 78.

practically the entire list of such examination of this Spanish copy78. See infra § 158.

authors in the Kingdom of Spain, right law, because we find that it 79. 22 Op.

Atty.-Gen. (Griggs) assign their copyrights to it, as soon gives a copyright to an author for 268, 269 (who said, under date of as they are obtained, and the corpo- his entire lifetime, and to his heirs Dec. 2, 1898: "If any inhabitants of ration thereafter, through its agents, for eighty years thereafter, provided Puerto Rico, Cuba, or the Philippine collects all royalties due such au- a new edition or copy of the work is Islands claim the privilege of copy- thors or owners, and pays the same published as often as once in twenty right as Spanish subjects, that right to them or their heirs, less reason- years; otherwise it becomes public at present is subject to the well able charges, as may be proper, and property. We find that our own copyknown rule that hostilities between protects the copyright all over the right law, 2 Fed. Stat. Anno. 260, has two nations suspend intercourse and world, wherever it exists.

The life for only twenty-eight years to deprive citizens of the hostile nations respondent is an actor and the head the author, and fourteen years to his of rights of an international char- of a company of actors known as, family; and we wonder whether the acter previously enjoyed. I am of 'La Compañia Zarzuela Española.' language of the treaty, above quoted, opinion that so long as a state of He came and brought his company to is intended to give this much longer war exists between Spain and the Porto Rico recently from Spain, and term to Spanish copyrights in Porto United States Spanish subjects have his company is now playing in all of Rico.

We are satisfied, from an no right to the privileges of copy- the theaters of the island, and is examination of the elaborate Spanish right conferred upon Spanish citizens acting different Spanish plays at said copyright law referred to, as well by proclamation prior to the decla- theaters nightly, without paying any as of the regulations regarding the ration of war").

royalty to complainant therefor, but same, that, although there was esEffect of war generally see War refusing so to do, all of which plays tablisned a local copyright registry [40 Сус 320].

are alleged to be the property of the in Porto Rico and in other provinces 80. 1 Op. Atty.-Gen. (Harlan) 181, complainant.

The respondent, of Spain, even in those that were not 182 (Porto Rico) (where it is said: after being served with an order to ultramarine, still, such registries "The Spanish law in force in Porto show cause, appeared by counsel and were intended only as a convenience Rico contained provisions for the admitted that complainant is a Span- for the provincial residents, and that issuing of letters patent in the ish corporation, organized and exist- the real title to copyrights in that island and was in force here at the ing under the laws of Spain, as country is the national registry at time of the American occupation.claimed, and that it is, in Spain, the Madrid. Therefore we feel bound to But as the insular patent system was owner of the Spanish copyright of hold that any copyright duly secured a part of the Spanish national sys- the enumerated works and composi- at headquarters, in Spain, and existtem for protecting property rights tions, but denies that the complaining at the date of the treaty, was in inventions, it has been thought ant has any right to sue at all in also in force in Porto Rico; and it that upon the institution here of an Porto Rico, or that it has any copy-being admitted that the copyrights American government the right of right in the island on the works or in question were, at such time, the the insular authorities to issue let- plays in question, for the reason that property of the complainant, and ters patent was terminated and, to- said dramatic works, plays, etc., were duly registered at headquarters, the gether with the body of Spanish never recorded in the public registry

now exist in Porto Rico. legislation on that subject, ceased to of Porto Rico, as it is claimed should Therefore, the respondent, having adbe in force in the island. This have been done under the law. The mitted that he is using such dramatic thought is strengthened

the complainant admits that it has never works, musical and other composisuggestion that the right to issue caused any of the dramatic works or tions, etc., is guilty of a violation and letters patent is one that generally plays in question to be recorded in infringement of such copyright, and belongs to the sovereign, and as the Porto Rico, but insists that its reg

should be enjoined from so doing unsovereignty of this island is lodged istry of the same at headquarters in less he shall pay the royalties due in the government at Washington, Spain, and its ownership of the same therefor, as requested, and it is so the military authorities then in pos- there, gave it a copyright thereon in ordered. This decision may be of session of the island were not com- Porto Rico, which was in existence such far-reaching importance as that petent to act upon such matters"); at the date of the treaty of Paris, on we feel, in justice to our government, 1 Op. Atty.-Gen. (Harlan) 74 (Porto the 11th day of April, 1899, and that, a copy of the same should be cerRico).

under the terms of that treaty, it is tified by the clerk to the Honorable 81. See Philippine Sugar Est. Dev. now the owner of copyrights thereon the Attorney General of the United Co. v. U. S., 39 Ct. Cl. 225 (not a in Porto Rico.

The only ques

States, so that, if he shall deem copyright or patent case, but involv- tion to be decided is whether or not. proper,

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under that clause of the treaty, the States attorney for the island to take

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these Spanish islands, and before congress acted of the United States, and to receive the protection in the premises, the copyright laws of the United thereof within the limits of the United States. $5 States did not extend to this island territory. The present copyright act was, however, extended But by the act of April 12, 1900,8 congress ex- to the Philippine Islands, as well as to other outpressly extended the general statutory laws of the lying territorial possessions of the United States, by United States to Porto Rico, and since that time the plain implication, as it contains many provisions copyright and patent laws of the United States

showing that congress intended it to be so operative, have the same force and effect in Porto Rico as

and which would be wholly nugatory unless it was in the United States. 86

so operative. 96 It seems also that copyrights ob[$ 74] 5. Canal Zone. By an executive order of

tained under prior acts, and subsisting when the the war department, effective April 15, 1907, the

act of 1909 took effect, were by that act made copyright laws of the United States were extended

operative in the Philippines and must be there reto, and made effective in, the Canal Zone 87

spected.” It must be admitted, however, that in [$ 75] 6. Philippine Islands. Down to the time the Philippine Bill, organizing civil government in

many respects the application of the present law

to the "outlying territorial possessions of the the Philippines, was enacted,88 copyright in

United States" is far from clear. Philippine Islands was subject to precisely the same

[76] 7. Alaska. The copyright laws of the considerations as governed copyright in Porto Rico.8

United States are operative in Alaska.98 The Spanish law was abrogated by the American

[77] 8. Imperial and Colonial Copyright in military occupation, and the United States law was

British Empirea. Imperial Copyright.99 The not substituted in its stead by its own inherent

British Empire consists of the United Kingdom, force. By express provision of the Philippine Bill none of the general laws of the United States

crown colonies and protectorates, and self-govare in force in the Philippine Islands unless ex

erning dominions.3 Cyprus, although nominally in tended thereto either expressly or by necessary im

the dominion of Turkey, is under British adminisplication.91 This provision clearly includes the

tration. The imperial parliament has absolute copyright laws of the United States then existing: 93

power to legislate for the whole and every part of It follows that from the time of the American occu

the British possessions.” But it is a rule of conpation until the Copyright Act of 1909 there was no

struction that statutes passed by the imperial parcopyright law in force in the Philippines,93 except liament operate only in the United Kingdom, that existing fully vested copyrights were pro

unless an intention to make them operative elsetected,94 and the inhabitants of the islands were where in the British possessions is manifested by entitled to avail themselves of the copyright laws the act. In accordance with this rule the Copyright an appeal to the Supreme Court of 691 c 1369 $ 1); Dorr v. U. S., 195 U. 5. Graves v. Gorrie, [1903] A. C. the United States.' Sociedad de S. 138, 24 SCt 808, 49 L. ed. 128. 1 496; Routledge v. Low, L. R. 3 H. L. Autores Españoles v. Americo Marin, AnnCas 697.

100; Black V. Imperial Book Co.. 8 4 Porto Rico Fed. 288, 289, 291.

92. 22 Op. Atty.-Gen. (Griggs) Ont. L. 9 (dism app 5 Ont. L. 184]; 84. "The Insular Cases," [Door v.

268, 269 (where the attorney-gen- Hubert v. Mary, 15 Que. _Q. B. 381 U. S., 195 U. S. 138. 24 Sct 80 8, 49 L. eral said: "In my opinion, when [aff 29 Que. Super. 3341; Ex p. Dobed. 128, i Anncas 697; The Diamond they shall have been directly ceded son, 12 New Zeal. L. 171. Rings, 183 U. S. 176; Dooley v. U. S., by treaty to the United States, and 6. Graves v. Gorrie, [1903) A. C. 182 U. S. 222, 21 SCt 762, 45 L. ed. such treaty duly ratified by the Sen- 496 (dism app 3 Ont. L. 697 (dism 1074; De Lima v. Bidwell, 182 U. S. ate, their respective inhabitants will app 1 Ont. L. 309 (dism app_32 Ont. 1, 21 SCt 743, 45 L. ed. 1041] (the not be entitled to the benefit of the 266])]; Routledge v. Low, L. R. 3 n'et result of these cases, pertinent copyright laws unless the treaty by H. L. 100. to the subject under consideration, its terms confers such right, or con- “Statutes passed by the Imperial may be summarized as follows: By gress shall afterwards extend such Parliament are to be treated prima the treaty of cession Porto Rico and laws the inhabitants of those facie as intended to apply to the the Philippines ceased forthwith to countries”).

United Kingdom only, and that in be foreign territory, and became do- (a) “Congress has not extended order that they may be held to apmestic territory appurtenant and be the copyright laws to the Philippines, ply to the colonies as well, there longing to the United States and sub- but has enacted in setting up a sep- must be upon their face express lanject to its jurisdiction, but not in- arate government and institutions guage shewing an intention that they corporated into the United States. for those islands, that section 1891 of should be

so applied." Graves Therefore the constitution and laws the Revised Statutes, extending the Gorrie, 1 Ont. L. 309, 313. of the United States did not of their Constitution and applicable laws to "A reference to the various Copyown inherent force pass to, and be- organized Territories, is not to be in right Acts passed by the Legislature come operative in, such newly ac- force in the Philippines.” Per Hoyt shews that whenever the area of proquired territory, but, the in 25 Op. Atty.-Gen. 25, 26.

tection of a copyright granted by trary, became applicable only when 93. See supra § 73.

any of the Acts was intended to inso extended by action of congress). 94. See supra § 73.

clude the colonies, the intention was 85. 31 St. at L. 77 c 191 $ 14.

95. 25 Op. Atty.-Gen. (Moody) manifested by express words." 86. 1 Op. Atty.-Gen. (Harlan) 181, 179 (overr 22 Op. Atty.-Gen. (Griggs) Graves v. Gorrie, 3 Ont. L. 697, 698, 183 (Porto Rico) (where it was said: 268).

699 (dism app 1 Ont. L. 309 (dism "There seems to be no sound reason 96. "Copyright in Porto Rico and app 32 Ont. 266, and app dism (1903) for doubting that the effect of this The Philippines," 2 Philippine L. J. A. C. 496)). provision was to extend to Porto 268.

See Act March 4, 1909 (35 St. "In Routledge v. Low, L. R. 3 H. L. Rico the entire body of federal leg- at L. 1075 C 320 $ $ 13, 26, 34, 36). 100, Lord Cranworth, in discussing islation in respect to letters patent

97. 2 Philippine L. J. 277.

that case, which arose under the Act and the protection of property rights 98. Act March 4, 1909 (35 St. at 5 & 6 Vict, ch, 45 (Imp.), said: “The thereunder. It may safely be con

L. 1075

C 320 34); Act Aug. 24, British Parliament in the time of cluded therefore that property rights 1912 (37 St. at L. 512 c 387).

Queen Anne must be taken prima fain inventions acquired under federal 99. International copyright

cie to have legislated only for Great legislation in that behalf, whether infra § 453 et seg.

Britain, just as the present Parliabefore or after the treaty of peace,

1. That is, England, Scotland, Ire- ment must be taken to legislate only must be respected in Porto Rico as land, and Wales.

for the United Kingdom and not for other property rights are respected. 2. These include all of the Brit- the colonial dominions of the Crown. Nor it is to be doubted that the fed- ish possessions other than the Uni- It is certainly within the power of eral courts in Porto Rico and else- ted Kingdom and the self-governing Parliament to make laws for every where would take this view of the dominions.

part of Her Majesty's dominions, and question").

3. " 'Self-governing dominion' this is done in express terms by the 87. Order March 12, 1907 (Copy- means the Dominion of Canada, the 29th section of the Act now in ques. right Office Bul. No. 3 p 146c). Commonwealth of Australia, the Do- tion.'" Graves v. Gorrie, supra.

88. Act July 1, 1902 (32 St. at L. minion of New Zealand, the Union [a] Reason for rule.-"As to the 691 c 1369).

of South Africa, and Newfound-question where must publication take 89. See supra § 73.

land." 1 & 2 Geo. V c 46 $ 35 (1). place, I cannot doubt that the publi90. See supra § 73.

4. See Copyright Act, 1911 (1 & 2 cation must be in the United King91. Act July 1, 1902 (32 St. at L. Geo. V c 46 $ 28).

dom. The words in the 3rd section

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Act of 1842, the Dramatic Copyright Act of 1833,8 imperial legislation.20 The Colonial Copyright Act which was subsequently extended so as to include of 1847, commonly known as the Foreign Reprints the performing right in musical compositions, the Act,21 authorizes the Crown, by Order in Council, International Copyright Act of 1844,10 and the Inter- to suspend the prohibition against importation into national Copyright Act of 188611 were of imperial the colonies of works protected by an imperial copyscope and conferred protection to copyrights se- right, where such colonies make satisfactory procured in accordance with their terms throughout the visions for the protection of the rights of the whole of the British Empire.12 On the other hand, owner of the British copyright. Various colonies the Fine Arts Copyright Act of 1862,13 the engrav- took advantage of this act and foreign reprints ing copyright acts, the Sculpture Copyright Act,15 were permitted to be imported into such colonies and the Lectures Copyright Act 16 did not contem- notwithstanding they were the subject of an implate protection in the colonies, and copyright there- perial copyright.22 In practice, the protection under is accordingly limited to the United King- afforded the British owner has proved

has proved wholly dom.? Protection elsewhere for these classes of illusory.23 works must be obtained by compliance with the The act of 1911, which is the present law, except local law of the colony where such protection is such provisions as are expressly restricted to the sought.18 Colonial legislation, of course, confers United Kingdom,24 runs throughout the whole of copyright only within the colony enacting it,' and the British possessions except the self-governing even there it can not prevail over inconsistent i are, 'every book which shall be pub- | Jersey, and Guernsey, or in

any it to be so; section 9 of "The Interlished,' without saying where; but it Part of the British Dominions"); national Copyright Act, 1886,' would be very inconsistent with the Liebler v. Harkins, (U. S.) 1 East pressly provides that it shall apply usual practice of the Imperial Par- LR 157; Carte v. Dennis. 5 Terr. L. to every British possession as if it liament to create a system of copy- 30; Ex p. Dobson, 12 New Zeal. L. 171, were part of the United Kingdom. right law for all the colonies and de- The Act granting copyright in It is true that the New Zealand pendencies in the empire, many of dramatic literary property. 3 Will. Legislature would be within its which have representative institu- IV. ch. 15 (Imp.), gave protection powers if it conferred a right beyond tions of their own, without any con- throughout the United Kingdom of what was conferred by the English sultation with those colonies or de- Great Britain and Ireland, the Isles Copyright Acts; it could not detract pendencies, and without any consid- of Man, Jersey, and Guernsey, and from rights conferred by the English eration whether a uniform and arbi- every part of the British dominions." Acts, nor relieve from penalties or trary system, such as that introduced Graves v. Gorrie, 3 Ont. L. 697, 699 liabilities imposed by those Acts. If by this Act, would be suitable to the dism app 1 Ont. L. 309 (dism app the New Zealand Legislature were to varied circumstances, states of civ- 32 Ont. 266, and app dism (1903) A.

We will confer, within New ilization, and systems of jurispru- c. 496)).

Zealand, an exclusive right of repredence and judicature in these differ- 9. St. 5 & 6 Vict. c 45 $ 20.

sentation the author of a draent colonies and possessions." Rout- 10. St. 7 & 8 Vict. c 12; Ex P. matic work though it may have been ledge v. Low, L. R. 3 H. L. 100, 108 Dobson. 12 New Zeal. L. 171.

represented in a foreign country be(per Lord Chancellor Cairns). 11. St. 49 & 50 Vict. c 33; Hubert fore it

first represented in 7. St. 5 & 6 Vict. c. 45 $ 29 (pro- v. Mary, 15 Que. K. B. 381 (aff 29 New Zealand, I apprehend such legviding: "This Act shall extend to Que. Super. 334).

islation would not be repugnant to the United Kingdom of Great Brit- 12. See cases supra notes 7-11. legislation of the United Kingdom in ain and Ireland, and to every Part 13. St. 25 & 26 Vict. C 68: Graves force in New Zealand. The English of the British Dominions"); Rout- v. Gorrie, (1903] A. C. 496 (dism app | Copyright Acts, including the Draledge v. Low, L. R. 3 H. L. 100; 3 Ont. L. 697 (dism app 1 Ont. L. matic Literary Property Act of Wil. Black v. Imperial Book Co., 8 Ont. L. 309 [dism app 32 Ont. 266])]; Tuck liam IV., while conferring an Eng9 (dism app 5 Ont. L. 184]; Smiles v. Priester, 19 Q. B. D. 629.

lish copyright with rights beyond V. Belford, 23 Grant Ch. (U. C.) 590 14. Engraving Copyright Act, 1734 the United Kingdom, do not prevent [app dism 1 Ont. A. 436); Morang (8 Geo. II C 13); Engraving Copy- a Colonial Legislature from so env. Publishers' Syndicate. 32 Ont. 393; right Act, 1767 (7. Geo. III < 38). ing that authors, though unable MacMillan v. Khan Bahadur Sham- "The Acts granting copyright in to satisfy the conditions which sul Ulama M, Zaka, [1895) 19 Indian engravings and similar works of art, would enable them to gain in the L. R. (Bombay). 557.

8 Geo. II. ch. 13, 7 Geo. III. ch. 38, colony, the English copyright, may "The original copyright Act, 8 and 17 Geo. III. ch. 57, did not ex- nevertheless gain in the colony, on Anne ch. 19, protected the copyright tend the area of protection beyond such terms as the Colonial Legislain books granted by that Act through- Great Britain until the Act 6 & 7 ture may prescribe, a right similar out Great Britain only. The Act, 41 Will. IV. ch. 59 (Imp.), extended the to what they might have gained unGeo. III., ch. 107 (Imp.), extended

of protection to Ireland." der the English Acts had they been the area of protection throughout the Graves v. Gorrie, 3 Ont. L. 697, 699 able to satisfy the conditions whole of the United Kingdom and (dism app 1 Ont. L. 309 (dism app 32 quired under the English Acts." Ex the British dominions in Europe; and Ont. 266, and app dism [1903] A. C. p. Dobson, 12 New Zeal. L. 171, 180. the Act, 54 Geo. III. ch. 156 (Imp.), 496)).

St. 10 & 11 Vict. C 95. extended the area of protection over

15. Sculpture Copyright Act, 1814

22. Morang y. Publishers' Syndithe whole of the British dominions. (54 Geo. III c 56).

cate, 32 Ont. 393; Copinger Copyright These Acts were repealed by the Act "The Act granting copyright in (5th ed) p333; MacGillivray Copy5 & 6 Vict. ch. 45 (Imp.), which by sculpture, 38 Geo. III. ch.7 (Imp.), right p 187. See also infra § 78 text sec. 29 provided that it should ex- did not extend the area of protection and notes 62-67. tend to "Great Britain and Ireland, beyond Great Britain and the Act [a] The object of this statute was and to every part of the British do- | 54 Geo. III. ch.56 (Imp.), did not to enable the people in the colonies minions." Graves v. Gorrie, 3 Ont. extend it beyond the United King- to obtain books cheaper than they L. 697, 699 [dism app 1 Ont. L. 309 dom." Graves c. Gorrie, 3 Ont. L. could import them from England. It (dism app 32 Ont. 266, and app dism 697, 699 (dism app 1 Ont. L. 309 was impracticable for the British (1903) A. C. 496)).

(dism app 32 Ont. 266, and app dism proprietor to publish a cheap colo"The second question is as to the (1903) A. C. 496).].

nial edition because he could not prearea over and through which protec- 16." The Act granting copyright in vent importation of such edition into tion is granted by the Act; and I lectures, 5 & 6 Will. IV. ch. 65 (Imp.), Great Britain. Copinger Copyright cannot doubt that this area is the did not extend the area of protection (5th ed), 333; MacGillivray Copywhole of the British dominions. The beyond the United Kingdom.” Graves right p 187. original Copyright Act, the 8 Anne, v. Gorrie, 3 Ont. L. 697, 700 [dism

23. Birrell Copyright p 215 et seq. c. 19, protected copyright through-app 1 Ont. L. 309 (dism app 32 Ont. “Altogether twenty colonies have out Great Britain. The 41 Geo. 3. c 266, and app dism (19031 A. C. 496)]. taken advantage of this Act. It has 107, extended this protection over 17. See supra notes 13-16.

been found, however, that the prothe whole of the United Kingdom, 18. See cases supra notes 13--16. tecting provisions are of little value, and the British dominions in Europe. 19. Routledge v. Low, L. R. 3 H.

and that the duties which are supThe 54 Geo. 3, c. 156, extended the L. 100; Ex p. Dobson, 12 New Zeal. posed to be levied on foreign reprotection still farther over the L. 171.

prints for the benefit of the British whole of the British dominions. And 20. Hubert v. Mary, 15 Que. K. B.

author are continually evaded, and the 15th section of the present Act 381; Ex p. Dobson, 12 New Z al. L. 171. the colonies under the Foreign Rerepeats in substance the same area [a] Inconsistent legislation.--"As prints Act are overrun with foreign for the purpose of protection." Rout- already stated, the contention on be- reprints of popular books which, ledge v. Low. L. R. 3 H. L. 100, 110 half of this right is based on the coming in practically free of duty, (per Lord Chancellor Cairns).

fact that "The (English) International make the authors' copyright in such 8. St. 3 & 4 Wm. IV C 15 8 1 Copyright Act, 1844,' is not referred colonies absolutely valueless." Mac(which conferred the exclusive per- to in the 3rd section of the New Gillivray Copyright p 187. forming right "in any part of the Zealand Act. But undoubtedly that 24. These are only the provisions United Kingdom of Great Britain Act has force throughout the Brit- relating to summary remedies. St. and Ireland, in the Isles of Man, | ish dominions; its very terms show | 1 & 2 Geo. V c 46 $$ 11-13.

area

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dominions, 25 as to which

special, and somewhat tary of state, such dominion is to be treated as if it complicated, provisions are made 26 Accordingly, were one to which the act extended. 35 Where the a copyright obtained under the act of 1911 affords local law of a self-governing dominion grants "adeprotection in the United Kingdom and all British quate protection” within the dominion for the colonies other than the self-governing dominions, 27 works of nonresident British subjects, the benefit and by order in council the act may be extended of the Imperial Act may be extended to authors with like effect to British protectorates and to resident in such dominion, and to works first pubCyprus, subject to the provisions of the order.2 lished in that dominion by an order of the king It has been so extended as noted below.29 The legis- in council, to the extent, and on the conditions, lature of any British possession to which the act specified in such order. Such order confers no extends may modify or add to any of its provisions, rights in the self-governing dominion, but the govbut except so far as such modifications and addi- crnor in council of a self-governing dominion may tions relate to procedure and remedies, they apply by like order confer like rights in that dominion. only to works whose authors were, at the time of These provisions establish between the self-governmaking the work, resident in the possession, and to irg dominions and the home government a scheme works first pubished in the possession.30

of reciprocal copyright protection much like that Self-governing dominions. The act of 1911 does established by the international provisions in the not extend to any of the self-governing dominions, i statutes of the United States. 37 unless dec red by the legislature of that dominion [8 78] b. Colonial Copyrights (1) Canada. to be in force therein either without any modifi- Since Canada has not yet declared the British Act cations or additions, or with such modifications and of 1911 to be in force, it does not extend to Canada, additions relating exclusively to procedure and but for the same reason the former English copyremedies or necessary to adapt the act to the cir- right acts of imperial scope are not repealed and are cumstances of the dominion, as may be enacted by still in force as to Canada.40 The British North the legislature of such dominion.3

32 But in any self- America Act of 1867 confers on the dominion parliagoverning dominion to which the act does not ex- ment, as distinguished from the provincial legislatend, all the former statutes repealed by the act tures, exclusive power to legislate on the subject of continue in force so far as operative in that do- copyright in the Dominion of Canada, 41 subject of minion.33

The dominion legislature may at any time course to the paramount power of the imperial repeal as to such dominion all or any copyright stat- parliament. This act did not abrogate or repeal utes, including the act of 1911, saving existing prior imperial copyright legislation applicable to rights; on such repeal of the act of 1911, or of any the colonies.43 In 1875 a copyright act was passed part thereof, by a dominion, such dominion ceases quite similar in form to the former United States to be a dominion to which such act extends.34 Where statute. This statute, as amended, is still in force, the local legislation of a self-governing dominion and is the fundamental copyright law in Canada. grants to nonresident British subjects, and to This act was confirmed by the imperial parliament foreigners resident in such parts of the British in an act known as the Canada Copyright Act of dominions to which the act of 1911 extends, rights 1875,45 but such confirmatory act did not operate as "substantially identical" with those conferred by a repeal of prior imperial copyright statutes applithat act, on certificate to that effect by the secre- cable to Canada, nor substitute the Canadian act 25. See supra note 3. rates see supra § 77.

one of its own previous decisions, See infra text and notes 31-37. See supra § 77.

so bound, and we 27. Copinger Copyright (5th ed)

See supra § 77.

wish to leave the question open so p 334.

41. Imperial Book Co. v. Black, 35 far as this court is concerned." Im28. St. 1 & 2 Geo. V c 46 § 28. Can. S. C. 488 (dism app 8 Ont. L. 9 perial Book Co. v. Black, 35 Can. S. 29. Order of June 24, 1912 (stat-(dism app 5 Ont. L. 184)).

C. 488. utory Rules and Orders (1912) No. [a] "Exclusive" power construed. 42. Hubert v. Mary, 15 Que. K. B. 912) provides: "The Copyright Act, -(1) "But, as it is now generally 381. 1911, shall apply to Cyprus, and to known, the word 'exclusive' was em- [a] “The Imperial Parlament is the following territories under His ployed to show that the provincial supreme. The expression 'exclusive,' Majesty's protection, namely, the legislatures have no right whatever in the British North America Act. in Bechuanaland Protectorate, East Af- to legislate on copyright, while, at the section referring to copyright rica Protectorate, Gambia Protector- the same time, it has no reference does not deprive the Imperial Parliaate, Gilbert and Ellice Islands Pro- whatever to the supremacy of the ment of the right of legislating on tectorate, Northern Nigeria Protec- | Imperial Parliament. A last observa- the same subject in so far as Canada torate, Northern Territories of the tion: we are dealing here with an is concerned." Hubert v. Mary, 15 Gold Coast, Nyasaland Protectorate, international question, and the Im- Que. K. B. 381, 383. Northern Rhodesia, Southern Rho- perial Parliament, in questions of

Black v. Imperial Book Co., 8 desia, Sierra Leone Protectorate, this nature, legislates for all the Ont. L. 9 (dism app 5 Ont. L. 184, Somaliland Protectorate, Southern colonies. To decide otherwise would and app dism 35 Can. S. C. 488 (leave Nigeria Protectorate, Solomon

Isl.

be tantamount to declaring the col- to app to Privy Council den 21 T. L. ands Protectorate, Swaziland, Ugan-onies to be independent countries." R. 540)). da Protectorate, and Weihaiwei." Hubert V. Mary, 15 Que. K. B. 381,

Can. Rev. St. (1906) c 70. 30. St. 1 & 2 Geo. V c 46 § 27. 384. (2). "We are unanimously of

St. 38 and 39 c 53. 31. See supra note 3.

opinion that the conclusion at which "The former Copyright Act of 1872, St. 1 & 2 Geo. V c 46 § 25 (1). | the majority of the Court of Appeal was disallowed by the Imperial

St. 1 & 2 Geo. V. 46 $ 8 26(2), arrived is the correct one, and that authorities, because it was in con36. See cases infra & 78, notes 50–55. the appeal should be dismissed with flict with Imperial legislation. But

34. St. 1 & 2 Geo. V c 46 § 26 (1). costs. In so deciding, however, we in the notification of disallowance, [a] old statutes have not

Lord Carnarvon recognized the conbeen repealed by any colony.

opinion one way or the other upon stitutional position that the ParliaSt. 1 & 2 Geo. V. c 46 § 25(2). the question as to whether Smiles v. ment of Canada under the B. N. A. [a] The object of this provision Belford, 1 Ont. A. 436, was rightly Act, had power to deal with Colonial is to enable a self-governing domin- decided. It is still open for discus- copyright within the Dominion, and ion to discriminate against the cit- sion as to whether the Parliament of intimated his hope that a measure izens of foreign countries, and to Canada, having been given exclusive would be passed which, while preprevent importation into the colony jurisdiction to legislate upon the serving the right of the owner of of their works notwithstanding they subject of copyright, may not, by copyright works in the United Kingare covered by, British copyright.virtue of that jurisdiction, be able to dom and Ireland, would give effect Copinger Copyright (5th ed.) pp override Imperial legislation antece- to the views of the Canadian Gov335, 336.

dent to the British North America ernment and Parliament: Canada 36. St. 1 & 2 Geo. V c 46 § 26(3). | Act, 1867. The Court of Appeal Sessional Papers, 1875, vol. viii, See infra $$ 157-160.

were, of course, right in referring No. 28. The outcome of these nego38. Crown colonies and protecto- | to that case and in following it as tiations is

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for the Copyright Act of 1842.46 The more im- the copyright given by the Canadian and English portant provisions of the Canadian statute are statutes is concurrent,53 although not coterminous, noticed in other connections.* Copyright pro- that under the Canadian statute being limited to tection in Canada may be obtained by those en- Canada.54 Where the copyrights under the Canadian titled thereto48 by complying with the conditions and English acts are held by different owners, the of this act.

49

But protection may also be secured first in point of time confers the paramount right.56 by obtaining a copyright under the Copyright But protection in Canada for paintings, drawings, Act of 1842, in the case of books,50 or under the photographs, engravings, and other artistic works dramatic and musical copyright acts, in the case can be obtained only by compliance with the Canada of dramatic or musical performing rights,51 for Copyright Act,56 because the English statutes givthese acts extended to the colonies and were not ing copyright in these subjects were limited in confined to the United Kingdom. In these cases their operation to the United Kingdom.57 The present Act, passed in 1875, and 5 Terr. L. 30.

possession under the local Actor ratified by the Imperial Statute the "The first question in this appeal ordinance." 8 Halsbury L. Eng. P same year, 38 and 39 Vict. ch. 53. is whether the Imperial Copyright 189. There is a clause in this English Act Act, 5 & 6 Vict. ch. 45, is in force 54. Routledge v. Low, L. R. 3 H. providing that Canadian reprints in Canada, and I agree with my L. 100, 116; Black v. Imperial Book under the Dominion Act of 1875, shall brother Street that the question is Co., 8 Ont. L. 9 (dism app 5 Ont. L. not be imported into the United King- settled in the affirmative by the judg-184?; Smiles v. "Belford, 23 Grant dom unless by or with the authority ment of this Court in Smiles v. Bed-Ch. (U. C.) 590 [app dism i Ont. of the English copyright owner ford, Ont. A. 436."

Black A, 436). (sec. 4).

That
appears to be in Imperial Book Co., 8 Ont. L. 9, 11

"Our
attention was

called to a some sense the converse of the pro- (dism app 5 Ont L. 184, and app local law of Canada with regard to vision now in question in the Cana-dism 35 Can. S. C. 488).

copyright, but it was not contended dian Act. That severed from its [a] Simultaneous publication in that it would prevent a native of connection, reads thus: 'Nothing in the United States and England gives Canada from acquiring an English this Act shall be held to prohibit the copyright protection in Canada, copyright which would extend to importation from the United King- although no Canadian copyright is Canada as well as to all other parts dom of copies of such works legally secured under the Canadian statutes. of the British dominions, although printed there. But the word 'such, Life Pub. Co. v. Rose Pub. Co., 12 the requisitions of the Canadian law introduces the context, and limits the Ont. L. 386, 8 OntWR 28; Grossman had not been complied with. It is proviso to cases where there is an v. Canada Cycle Co., 5 Ont. L. 55, unnecessary to decide what would be existing or a prior British copyright, 1 OntWR 846.

the extent and effect of a copyright in respect of which the Canadian one [b] Registry at Stationers' Hall in those colonies and possessions of may be considered subordinate, as (1) is necessary to confer a right to the Crown which have local laws being in time subsequent." Anglo- sue for infringement of such a copy- upon the subject. But even if the Canadian Music Publishers' Assoc. v. right. Morang v. Publishers' Syndi- statute of 5 & 6 Vict. applies at Suckling, 17 Ont. 239, 241.

cate, 32 Ont. 393, 21 CanLTOccNotes all to that case, I do not see how 46. Graves v. Gorrie, [1903] A. C. 77; Times V. Mail Printing Co., such a copyright can extend beyond 496; Smiles v. Belford, 23 Grant Ch.

14 OntWR 627. See also infra the local limits of the law which (U. C.) 590.

88 225-231. (2) "Stationers' Hall is creates it." Routledge v. Low, supra. (a) Purpose and effect of statute.-still open for registration in case it 55. Anglo-Canadian Music Pub(1) "There is nothing repugnant to

is desired to take any action in lishers' Assoc. v. Suckling, 17 Ont. the 5 & 6 Vic. in our Act of 1875, Canada by virtue of a British copy- 239, 241, 243. they may both well stand together. right, although such registration is "A very clear distinction is to be But it is repugnant to the Order of

no

longer required for copyright observed in this Act, R. S. C. ch. Her Majesty in Council, under the 10 within the United Kingdom." Copy-62, between works which are of prior R 11 Vic., which permitted pirated right in Canada, 49 AMLRey 680. British copyright, and those which copies to be imported on payment of

51.

Liebler V. Harkins, (N. S.) 1 are of prior Canadian Copyright. a duty, while our Act says, if copy- EastLR 157; Carte v. Dennis, 5 Terr. If there is prior British copyright is secured here pirated copies L. 30.

right, and thereafter Canadian copyshall not be imported, and it was on "The Act 51-2 Vic. c. 17 [ musical) right is obtained by production of this account that an Act had to be is, think, in force here. The Act the work, then by section 6, that obtained to confirm it." Smiles V. 3 & 4 Wm. IV. c. 15, (dramatic] local copyright is subject to be inBelford, 23 Grant Ch. (U. C.) 590, extended to Canada by its terms, vaded by the importation of lawful 604 (per Proudfoot, V.). (2) "The and is in force here not by virtue British reports [reprints). But if Canada Copyright Act, 1875, does not of the North-West Territories Act, the Canadian copyright is first on the by s. 3, make the Canadian Act set That being So, amendments part of the author or his assigns, out in the schedule an Imperial Act changes made since 1870 are to be then under section 4 the monopoly applicable to Canada, The section observed here." Carte v. Dennis, 5 is secured from all outside imporsimply removes a difficulty which had Terr. L. 30, 59.

tation." Anglo-Canadian Music Pubarisen in Canada by reason of s. 91

52.
See supra § 77.

lishers' Assoc. v. Suckling, supra. of the British North America Act Requirements for securing copy- "Very different was the question and some Orders in Council. Copy- | right under English statutes see agitated in Smiles v. Belford, 23 right is placed by that Act under the infra $ $ 223-233.

Grant Ch. (U. C.) 590. There the Dominion Legislature; and, having 53. Anglo-Canadian Music Pub-owner of the British copyright sought regard to some Orders in Council, it lishers' Assoc. v. Suckling, 17 Ont. to restrain the unauthorized use of was doubtful by whom the Act' in 239; Times v. Mail Printing Co., 14 his work in Canada, no Canadian the schedule should be assented to. OntWR 627, 629.

copyright being involved. But here The effect of the Act was consid- "Here we have an example of what the British authors before publication ered by the Court of Appeal for is called Concurrent Copyright. The or copyright in England, assign their Ontario in Smiles v. Bedford, 1 Ont. Imperial Act of 1842 has already con- right in the work over Canadian A. 436, and it is plain from that case, ferred Copyright for a longer term territory, upon which a perfect and indeed from the Act itself, that than twenty-eight years within Canadian copyright is obtained prior it in no way assists the plaintiffs." | Canada upon all books published in to publication or copyright in EngGraves V. Gorrie, [1903] A. C. 496, Great Britain or Ireland, and yet land. My reading of the Act is such 499_(per Lord Lindley). here we have a shorter term created

to protect fully this Colonial 47. See infra 88 162, 234, 242, 338, by a local act within the limits of copyright. It does not purport to in364, 370, 373, 437, 446, 451.

the

Dominion. The state of the hibit dealers in England from sell48. See infra § 162, and generally author is indeed twice blessed.” Bir- ing to whom they will; but if the infra § 144 et seq. rell Copyright p 218.

purchasers seek to introduce the Citizens of United States, right to "If they did register there (in copies so purchased into Canada, obtain copyright under Canadian England] they would be entitled to then the Act applies, and rightly statute see infra $ 162.

enforce their rights in Canada. so, as against an English author who 49. See infra § 234.

'Those rights would not be so broad has previously parted with his rights 50. Routledge v. Low, L. R. 3 H. as if they had copyrights in Canada, in Canada, and all taking under him L. 100; Imperial Book Co. v. Black, and, therefore, apparently our Ca- in England." Anglo-Canadian Music 21 T. L. R. 540 [dism app 8 Ont. L. nadian Parliament has provided that Publishers'

Assoc.

V. Suckling, 9 (dism app 5 Ont. L. 184)]; Smiles the owners of the English copyright supra. v. Belford, 1 Ont. A. 436 (dism app may obtain copyright in Canada un- 56. Graves v. Gorrie, [1903) A. C. 23 Grant Ch. (U. C.) 590]; Morang der section eight of our Act.” Times 496. 500 [dism app 3 Ont. L. 697 v. Publishers' Syndicate, 32 Ont. 393; v. Mail Printing Co., supra.

(dism app i Ont. L. 309 (dism app Griffin v. Kingston, etc., R. Co., 17 fal "In the case of a work first 32 Ont. 266])). Ont. 660, 666; Anglo-Canadian Music published in British possession, "The short result is that those Pub. Assoc. v. Suckling. 17 Ont. 239 where a local law or ordinance gives who want copyright in Canada for (dism app_27 Que. Super. 485, 5 Que. copyright to the author, the latter paintings, drawings, and photographs Pr. 351]; Times v. Mail Printing Co., is entitled to copyright in the United must obtain such copyright by com14 OntWN 627 (Peary's discovery of Kingdom under

the

International plying with the laws of that the north pole); Oman v. Copp-Clark Copyright Act, 1886 (49 & 50 Vict, country." Graves v. Gorrie, supra. Co., 1 OntWR 542; Carte v. Dennis, I c. 33), s. 8, as well as in such British 57. See supra § 77.

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