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authority, published a rival edition, which they claimed they had a right to do, denying that Messrs. Low & Co. could have “copyright in a work written by an alien between whose country and our own no law of international copyright subsists.” Hence the controversy. The lower courts having affirmed the validity of the copyright, the matter was carried on error to the House of Lords, where it was held that while the statute extends protection throughout the possessions of the crown, and does not restrict the presence of the author to a less area, publication must be within the United Kingdom. The reasons for this distinction were not found in the express intention of parliament, but resulted from “ various provisions and conditions contained in the act which could not possibly be complied with if the first publication were to take place in distant parts of the British Empire.”
It is well settled that the publication in England must be a first publication ; i.e., there must have been no previous publication, either at home or abroad. But the copyright will not become invalid by a contemporaneous publication, whether within the realm or abroad. Even where the foreign publication is prior to that in England but on the same day, it will not invalidate the author's title, if his intention is to publish contemporaneously in England and abroad.
This point came before the English courts, not for the first time, however, in 1868, when Holmes's Guardian Angel was the book in controversy. This work had appeared serially in the Atlantic Monthly, beginning with January, 1867. In October, Messrs. Sampson Low & Co. published it in book form in London, while the author was sojourning in Montreal. Subsequently Ward of London issued an edition, alleging that he had reprinted it from the Atlantic. The court now held that the author was not entitled to copyright in the portion which had appeared in the Atlantic previously to the publication of the book in London, but restrained the defendant from selling any copies containing the last six chapters of the story, the publication of which in England was not preceded by their appearance in this country.2
There is, then, no dispute that an American author may acquire a valid English copyright by first publishing in the United Kingdom, or publishing there on the day of publication elsewhere, if he be upon English soil at the time of such publication. It
1 Boosey v. Purday, 4 Exch. 145. 2 Low v. Ward, L. R. 6 Eq. 415.
matters not where he has composed his work, nor whether he goes within the English realm with the sole purpose of being upon English soil at the time of publication, and departs the moment the product of his brain is on the market. "If the author,” says Lord Chancellor Cranworth, “is at the time of publication in England, and while here he first prints and publishes his work, he is, I apprehend, an author within the meaning of the statute, even though he should have come here solely with a view to the publication.”? And in the case above discussed the fact was clearly before the court, and considered by the judges, that Miss Cummings was a resident of the United States, had gone to Canada in accordance with an arrangement with her English publishers, and was merely sojourning there temporarily for the express purpose of acquiring copyright. Nor is the question affected by the fact of contemporaneous publication in the United States. Such publication may or may not take place; for the doctrine is well settled in the English courts that simultaneous publication elsewhere is not a bar to English copyright.2
There is no indication as to the time the author shall repair to the magic spot, how long he shall tarry, or when he may take his leave. His presence does not seem to be required either before or after publication, but merely “at the time of publication.” Now, as publication takes place on a given day, there is nothing to indicate that the law will not be satisfied, if the author make his stay for the same diurnal period. Nor is it necessary that he should be at the place of publication. Thousands of miles may be between him and his publishers. He may be on the banks of the Ganges, or the shores of the Pacific, or in the most distant English colony. So long as he is within the British Empire his rights are secured. Nor does the law insist that an American author in quest of English copyright shall remain stationary at one point even during the brief time of publication. He may be whirled through Canada at a fearful rate on the Grand Trunk Railroad. But he must appear in propria personâ ; he cannot appear by proxy, - cannot send his assignee, or his publisher, or his servant. The English courts have said that nothing but the presence of the author himself will do. Of course there is little to be gained by trying to discover the philosophy of this principle. Why copyright will vest if the author tarry ten hours on the 1 Jefferys v. Boosey, 4 H. L. C. 815.
other side of the St. Lawrence, while his book is given to the London public, but not, if he is on this side; why parliament demands the body of the author, as Shylock insisted on Bassanio's flesh, — are things which no inquirer can find out.
At least we have seen what the status of an American author is under the English law. By publishing in England, Wales, Scotland, or Ireland before, or at least contemporaneously with, publication elsewhere, and passing a few hours at the same time at any point under the British flag, the law will be satisfied, and his book will be protected wherever that flag waves. Whether he might stay at home on the day of publication in defiance of English law, and wring from the English judges recognition of his rights as a foreigner and protection to his literary property, notwithstanding the decision of 1854, remains to be tested by some persistent Yankee.
We come now to consider the status of a foreign author under the American copyright laws, as well as of an American citizen who derives his title from a foreigner. And here we find that the question is freed from much of the doubt and difficulty which have surrounded it in the English courts. For there the language of the statutes passed for the encouragement of learning from the reign of Anne to the present time has been general in its terms, extending protection to "authors,” and leaving the courts to determine whether or not that expression meant simply British authors and nothing more. But in the United States, by the several copyright statutes that have been passed from the act of 1790 to that of 1870, Congress has extended protection only to such author as may be a "citizen of the United States, or resident therein,” thus by express words excluding a foreigner from the benefits of the statute. Whenever this point has been before our courts it has been clearly established that no author can have a valid claim to copyright unless he be at the time of recording the title a “ citizen of the United States, or resident therein." But this clause, nevertheless, has given rise to much discussion, and no little doubt as to the meaning of the term “resident,” and what is necessary to constitute such residence as is contemplated by the act. Whether the applicant must be a resident with the intention of remaining here or of becoming a citizen, whether he must have formally declared such intention, and how long must he have been here in order to have acquired a residence, are
questions that have been left to the determination of the courts. The judicial construction put upon the word “resident” in these acts is that it refers to a person who is resident here with the intention of making this country his place of permanent abode. A formal declaration of such intention is not necessary, nor is any definite period of time indicated as requisite to constitute such residence. Nor is it essential that such person shall be the occupant of his own house; he may be a lodger or boarder in the house of another. The question seems to be determined by the state of mind, the intention, of the person at the time he has his abode here, and by his acts, so far as they go to show what that intention was. If while domiciled here he intends to remain and make this his place of abode, his home, he becomes during the continuance of that intention a resident within the meaning of the act, though to-morrow he may change his mind, and hasten to his native land. How long such intention shall continue the courts have not said ; but if it exist bonâ fide at the time of recording the title, valid copyright vests, and will not be defeated by any subsequent acts or change of mind on the part of the claimant. On the other hand, if a foreign author comes to our shores, intending to remain here temporarily (to lecture or what not), although he actually remain here a year or ten years, he is a mere sojourner, and does not acquire a residence within the meaning of the act.
This issue arose and was fully discussed in the United States Circuit Court in Chicago in 1868.1 The complainant was the well-known dramatic author, Dion Boucicault, a native of Great Britain, who had spent from 1853 to 1860 in the United States, and then returned to Great Britain. During that period he had taken out a copyright in certain plays which he had composed, in doing which he had observed all the statute regulations. It was for the infringement of his right in these plays that the action was brought against the defendant, whose defence was that Boucicault, being a foreigner, could not acquire valid copyright in this country. The law on this point was elaborately expounded by the court, to the effect that the rights of the plaintiff were to be determined by the intention as to residence existing in his mind at the time of recording his title; and that, notwithstanding his protracted stay in this country, he was not a resident within
1 Boucicault v. Wood, 16 Am. Law Reg. 539.
the meaning of the act, unless his mind was made up to make this his permanent home. The jury found that such intention èxisted in the mind of Boucicault at the time of taking out his copyright, and therefore his title was held valid.
To determine thus the intention in the mind of a person will in many cases be attended with difficulty, and even with fraud. It is a question for the jury, and when the fact has been established by them the law will be determined accordingly.
As to where the work may have been composed, the act is wholly silent, and it is obviously immaterial whether it was written in or out of the country, provided the author comes within the statute requirements as to citizenship or residence.
It is now important to inquire whether the recent act of Congress has made any material change in the relation of foreign authors to our copyright laws. This act was passed in July, 1870, and was intended as a substitute for all previous statutes relating to copyrights. The provision describing who may be entitled to the benefit of the act is as follows:
Any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph, or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and his executors, administrators, or assigns, shall, upon complying with the provision of this act, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others, and authors may reserve the right to dramatize or to translate their own works.”
This provision is substantially the same as those of preceding acts on this point; but with this notable difference, that in no preceding act has the word “proprietor,” or any equivalent for it, been used. Under all previous laws not only a foreigner, but also his assignee, whether a citizen or not, was by express language excluded from the benefits of the law. But under this section it would seem that a citizen of the United States or resident therein might acquire a valid copyright in a work which he had purchased from a foreign author; for the language of the act embraces not