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AMERICAN LAW REVIEW.
BOSTON, OCTOBER, 1874.
THE LAW OF LITERATURE AND ART IN ENGLAND AND AMERICA. - HOW NEAR ARE WE TO INTERNATIONAL COPYRIGHT?
THE laws which govern the productions of literature and art in a country are not only of national, but peculiarly of international importance, since these productions are themselves international in character, and serve as strong ties to bind nations more closely together. The laws of the United States for the encouragement of learning concern the authors, composers, and painters of England, France, and Germany scarcely less than they do those of our own country. And so, when it is remembered that the best of our literature first greets London and Boston readers on the same day, it is not strange that American authors watch with interest the policy of the English parliament in framing copyright laws, and the construction given them by the English courts.
It becomes, then, a matter of public interest to compare the English and the American copyright laws, so far as they concern foreign authors, in order to ascertain what rights English authors have under the laws of the United States, what privileges have been extended by parliament and the English bench to American authors, which government has embodied the more liberal and enlightened views in its legislation, and how near are the two countries to that international copyright so much desired by the best men in both.
Although the copyright laws of England date back at least to the reign of Anne, it is within a quarter of a century that an English court of law first declared that a foreign author resident abroad was entitled to no protection under the English Copyright Statutes. Indeed, the English lawyers, whether on the bench or at the bar, have traced the origin of this doctrine no farther back than a remark of Vice-Chanceller Shadwell in the year 1824, that “ the court does not protect the copyright of a foreigner.”ı But this case had no connection with the law of copyright, and the remark was merely thrown out obiter, and apparently without consideration. Moreover, the same judge did not hesitate to declare, fifteen years later, that a foreign author who gave the British public the advantage of his industry and knowledge, by first publishing his work in England, was entitled to the protection of the Copyright Statutes.?
Prior to 1845, the capacity of a foreign author to acquire, or at least to confer upon a British subject, valid copyright, does not seem to have been denied in the English courts. Nor was this from want of opportunity; for the courts had several times protected the copyright of subjects whose titles had been derived from foreigners, which is essentially the same as protecting the foreign author himself. For the law has never, in England or America, regarded the assignee of a foreign author with more favor than the author himself, upon the well-known principle that no one can confer upon another a better title than he has himself.
The question was first thoroughly discussed in a court of law in 1845, when an opinion was expressed by the Court of Exchequer that copyright did not exist at common law, but was the creature of statute, and that " upon the construction of the statutes alone a foreign author, or the assignee of a foreign author, whether a British subject or not, has no copyright in England, and no right of action on the ground of any piracy of his work committed in the British territories." But the result of the decisions at that time bearing upon the subject was stated to be that a foreigner was entitled to the benefit of the statutes if he had given England the advantage of the first publication of his work. And accordingly Chief Baron Pollock, in delivering the
1 Delondre v. Shaw, 2 Sim. 237. 2 Bentley v. Foster, 10 Sim. 329.
judgment of the Barons of the Exchequer, went no farther than to express the doubt of the court as to whether English copyright would vest in a foreigner resident abroad.
But the determination of this question, if not the discussion, was entirely unnecessary, as the copyright in the musical composition in question was clearly defeated by its publication in Paris several months before it was published in England. Three years later the direct issue again arose, and was elaborately discussed in Cocks v. Purday before the judges of the Common Pleas, who were unanimously of opinion that an alien amy who first published in England a work which had not been made publici juris by a previous publication elsewhere acquired a copyright in such work, whether it had been composed within the realm or abroad.1 And this doctrine was affirmed in the following year by the Court of Queen's Bench in the case of Boosey v. Davidson, wherein the facts were similar. It was not until the year 1849 that the contrary doctrine was absolutely announced by a court of law. The Court of Exchequer, in Boosey v. Purday, overruling a prior decision * of that court on the equity side and the decisions of the Common Pleas and Queen's Bench above mentioned, held that a foreigner domiciled abroad, by sending his work to Great Britain for first publication, acquired no copyright, and could not confer a valid title upon a British subject. The reasons for this remarkable judgment, the first to deny to foreign authors and composers protection within the British domain for the products of their mental labor and to legalize piracy, were given by Chief Baron Pollock, who pronounced the opinion of the court:
“ My opinion is that the legislature must be considered primâ facie to mean to legislate for its own subjects, or those who owe obedience to its laws; and consequently that the acts apply primâ facie to British subjects only in some sense of that term which would include subjects by birth or residence being authors; and the context or subject-matter of the statutes does not call upon us to put a different construction upon them. The object of the legislature clearly is not to encourage the importation of foreign books and their first publication in England, as a benefit to this country; but to promote the cultivation of the intellect of its
1 Cocks v. Purday, 5 C. B. 860. 2 13 Q. B. 257. 8 4 Exch. 145.
4 D'Almaine v.
Boosey, 1 Y. & Col. 288.
own subjects, and, as the Act of Anne expressly states, “to encourage learned men to compose and write useful books' by giving them, as a reward, the monopoly of their works for a certain period dating from their first publication.”
This judgment, however, was not suffered to stand long as representing the doctrine of the English bench; and in 1851 it was overruled by the judges of the Exchequer Chamber, with Lord Chief Justice Campbell at their head, who affirmed the better and more liberal doctrine which extended the protection of the English law to all authors, whether native or foreign.
“ We see no sufficient reason,” said that learned judge, “ for thinking that it was the intention of the legislature to exclude foreigners from the benefit of the acts passed for the protection of literary property. The British parliament has no power, and cannot by any general words be supposed to intend, to legislate for aliens beyond British territory ; but, for any thing within British territory, it has the power to legislate for aliens as well as natural subjects, and, as we conceive, by general words must be presumed to do so. The monopoly which the statutes confer is to be enjoyed here, and the conditions which they require for the enjoyment of it are to be performed here. What is there to rebut the presumption that aliens are included ? The Act 8 Anne, c. 19, which the others follow, is entitled "An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies.' Assuming that the legislature looked only to the enlightenment of the kingdom of Great Britain, without any general regard for the republic of letters, may it not be highly for the encouragement of learning in this country, that foreigners should be induced to send their works composed abroad, either in English or in a foreign language, to be first published in London ? If Rapin or De Lolme had written their valuable works to illustrate our history and constitution, without even visiting our shores, could it be intended that they should be debarred from publishing on their own account in England, or selling their copyright to an English bookseller? For these reasons, we think that if an alien residing in his own country were to compose a literary work there, and continuing to reside there, without having before published his work anywhere, should cause it to be first published in England in his
Boosey v. Jefferys, 6 Exch. 580.