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own name and on his own account, he would be an author within the meaning of our statutes for the encouragement of learning ; and that he might maintain an action in our courts against any one who, in this country, should pirate his work.”
Upon this state of the authorities the question came before the House of Lords in 1854, where the exhaustive and learned discussion of the principles involved make the case of Jefferys v. Boosey 1 the leading copyright case of this century, as Miller v. Taylor and Donaldson v. Beckett were of the last. The work in question was the opera of La Somnambula. Bellini had composed this work while resident in Milan, and, in 1831, had assigned the copyright in it to Giovanni Ricordi, also a citizen of Milan, who subsequently went to England and transferred to Boosey, a British subject, the exclusive right to publish the opera in Great Britain. Boosey then published the work contemporaneously with a publication in Milan, and subsequently Jefferys, a rival publisher in London, published the same work without authority. Then arose the question whether Boosey's title, being derived from a foreigner, was valid. At the trial of the case, the presiding judge having held, in conformity with the decision of Chief Baron Pollock in Boosey v. Purday, that a valid title could not be acquired from a foreigner domiciled abroad, that ruling was subsequently reversed by the Court of Exchequer Chamber. The matter was then brought before the House of Lords on a writ of error, in order that the whole subject and all the authorities bearing on it might be thoroughly reviewed. The highest judges of England, eleven in number, including the Lord High Chancellor Cranworth, the Lord Chief Justice of the Common Pleas (Right Honorable Sir John Jervis), the Lord Chief Baron of the Exchequer (Right Honorable Sir Frederick Pollock), besides the venerable Lord Brougham and Lord St. Leonards, delivered opinions for the guidance of the lords, reviewing the judicial history of the question, and the various authorities bearing upon it, with great ability.
The leading and most important question submitted to the judges was whether Bellini, a foreigner resident abroad, acquired either by common law or by státute copyright in a work which was first published by his authority in England. Six of the judges maintained the affirmative of this doctrine, and five the
1 4 H. L. C. 815; 8. C. 30 E. L. & E. 1.
negative. The difficulty was in construing the word “author" in the statute of Anne; whether its meaning was restricted to an English subject, or was general in its application. On the one hand, it was claimed that a British legislature dealing with British interests must be presumed to have legislated for British subjects and for the encouragement of British talent and industry; while, on the other hand, it was stoutly denied that such restriction was intended, as it certainly was not expressed. But, even admitting it to be true, "to give a copyright to a foreign author publishing in this country,” said one of the judges, “is dealing with British interests and legislating for British people. British industry and talent will be encouraged by conferring a copyright on a foreigner first publishing in England, - industry, by giving it occupation, and talent, by furnishing it with valuable information and means for cultivation.” “Is it not for the benefit of learning here," asks another, “ that French, Italian, and German authors should first publish their works in this country?”
Throughout this great argument it was fully conceded by all that, if the alien author were within the realm at the time of first publication, his rights were secured. No matter in what quarter he might be, nor how brief might be his sojourn, provided he was on British soil on the day of publication, his title vested. The law does not require this bodily presence of an English subject within the realm. “ If Gibbon,” asked Lord Chief Justice Campbell, “after writing the “Decline and Fall,' at Lausanne, had published it here, could it be doubted that while domiciled there he would have acquired the same right as an English author ? " And Lord Chancellor Cranworth went so far as to intimate that if Gibbon had established himself at Lausanne without any animus revertendi, he would still be entitled to copyright in a work first published in England. Lord Campbell was at a loss to understand why an alien author with his manuscript at Calais might acquire copyright by crossing over to Dover and publishing, but would lose the same rights by sending his manuscript over with an agent. The Lord Chancellor adhered to this distinction, but classed it with those curiosities of law that do not admit of explanation.
Lord Brougham and Lord St. Leonards, who advised their peers, followed the minority of the judges, and the House of Lords followed Lord Brougham and Lord St. Leonards, and, in pronouncing the most important copyright decision since Lord
Mansfield's time, held that neither at common law nor by statute would English copyright vest in a foreign author while resident abroad.
This, therefore, must be regarded as the law of England until it shall be changed by the same tribunal that established it. But the judgment rests upon a foundation of sand. It was in opposition to the advice of a majority of the judges and the authority of previous cases, besides being narrow and illiberal. Its soundness was questioned in 1868,1 when the next copyright case was brought before the House of Lords, although the direct issue did not arise in that case. Lord Chancellor Cairns and Lord Westbury gave as their opinions that the protection of the present statute is given to every author who first publishes in the United Kingdom, wherever he may then be resident, while Lords Cranworth and Chelmsford simply expressed their doubts as to the case of an alien resident abroad.
The words of Lord Chancellor Cairns are so expressive of broad statesmanship and the most enlightened views that we quote a passage :
“ My Lords, in my opinion the protection is given to every author who publishes in the United Kingdom, wheresoever that author may be resident, or of whatever state he may be the subject. The intention of the act is to obtain a benefit for the people of this country, by the publication to them of works of learning, of utility, of amusement. This benefit is obtained, in the opinion of the legislature, by offering a certain amount of protection to the author, thereby inducing him to publish his work here. This is, or may be, a benefit to the author of the work; but it is a benefit given not for his sake, but for the sake of those to whom the work is communicated. The aim of the legislature is to increase the common stock of the literature of the country; and if that stock can be increased by the publication for the first time here of a new and valuable work composed by an alien, who never has been in the country, I see nothing in the wording of the act which prevents, nothing in the policy of the act which should prevent, and every thing in the professed object of the act, and in its wider and general provisions, which should entitle such a person to the protection of the act, in return and compensation for the addition he has made to the literature of
Routledge v. Low, L. R. 3 H. L. C. 100.
the country. My Lords, I am glad to be able to entertain no doubt that a construction of the act so consistent with a wise and liberal policy is the proper construction to be placed upon it.'
It is true that in this case the 5 & 6 Vict. was the statute uuder consideration, while Jefferys v. Boosey was decided upon the 8th Anne. But Lord Cranworth remarked that he did not “ as at present advised see any difference between the two statutes as far as relates to the subject of the residence of foreign authors."
So long as the lower courts are governed by the decision of Jefferys v. Boosey, a foreign author resident abroad who publishes in England has no protection against piracy ; but should the direct issue be again carried to the House of Lords, and the battle fought over, there is strong reason to believe that the judgment of 1854 will be reversed, and the protection of English law extended to every author, wherever or in whatever language he may write, who gives the British nation the benefit of the first publication of his work.
We come now to consider more particularly the status of an American author, composer, or artist, under the English copyright law. For this purpose it is not necessary to discuss the international copyright arrangement which exists between England and various continental countries, by which protection is extended upon specified conditions by an Order in Council to the authors resident in those countries, provided reciprocal protection is afforded to English authors. By complying with the statute regulations as to registration, notice, &c., the author of a book first published in Paris or Berlin, where he may be a citizen, or of a French comedy or German opera first given to the public abroad, may secure a copyright therein in London even months after it has appeared on the Continent, and no English subject can publish or publicly represent such work in Great Britain without incurring the penalty of piracy. But no such arrangement has been entered into between England and the United States.
An American citizen, in order to acquire in England a valid copyright in a work of which he is the author, must comply with three conditions: first, publication must be in the United Kingdom ; second, there must have been no previous publication, either at home or abroad ; third, the author must be at the time
of publication within the British dominions. Upon these conditions copyright will vest, and when it has once vested protection extends throughout the British dominions.
It is important here to note carefully the meaning of the terms used. The United Kingdom embraces England, Wales, Scotland, and Ireland, while the British dominions include “all parts of Great Britain and Ireland, the islands of Jersey and Guernsey, all parts of the East and West Indies, and all the colonies, settlements, and possessions which now are or hereafter may be acquired.” It will be noticed that the area within which the presence of the author at the time of publication is required, and that throughout which copyright extends, are the same, namely, the British dominions; while the place of publication is restricted to a smaller territory, the United Kingdom.
There has been little dispute in the English courts respecting the first two of these requisites. Although the statute does not specify the place of publication, it has never been disputed that an English publication is essential, the aim of parliament being to increase the common stock of the literature of the country. But is the place of publication limited to the United Kingdom, or may it be anywhere within the British dominions? How far does protection extend when copyright has once vested ? Is it coextensive with English rule, or limited to a less area? Where within the English realm must the author be at the time of publication ?
These points came up for the first time in 1864, and were finally determined by the House of Lords in 1868.1 The litigants were the well-known London publishers, Sampson Low & Co. and Routledge & Co. The former firm had purchased from Miss Maria S. Cummings, an American authoress, her Haunted Hearts, the manuscript of which she transmitted to London for publication in April, 1864. At the same time, as arranged between her and her publishers, she went to Montreal, Canada, and there remained until after the publication of her book, which took place on the 23d of May, 1864. Copyright was duly assigned to the Messrs. Low & Co., and the work and the assignment were registered at Stationers' Hall in London, the assignor being described as “ Maria S. Cummings, Montreal, Canada.” Shortly after the appearance of the work, Messrs. Routledge & Co., without
1 Routledge v. Low, ub sup.