IF

IV. COPYRIGHT REFORM.

the good old days could be recalled when obstruction

was unknown, and Parliament had nothing particular to do and plenty of time to do it in, artists and men of letters might possibly prevail upon the House of Commons to settle down in a serious and workmanlike spirit to the task of consolidating and amending the law of copyright.

In these latter days, however, only the strongest pressure of public opinion will induce the representative chamber

concern itself with legislation of an unsensational character, out of which no party capital can be made or any party fight evoked, and on which no party recrimination. can be indulged in. Reforms that are advocated merely in the interest of the community at large, or of some section of the community not possessing great political influence, are voted a bore by the representatives of the people, who are more than content to relegate the consideration of such matters to the serener atmosphere of the House of Lords, where perpetual and inevitable boredom is the condition of existence.

This, perhaps, is all as it should be. The overworked House of Commons, weary and jaded in the reaction consequent upon a surfeit of hard fights and brilliant party. manœuvres, may be justified in relegating to the House of Lords such hum-drum tasks as are distasteful to a militant assembly. I say nothing against that view. A little boredom, more or less, in the gilded chamber or its committee rooms is all in the day's work. Let the dull House remain dull, and the fighting House be encouraged to stake out the political prize ring, wherein the party pets may perform to the admiration of an applauding senate, and a critical ring of bottle holders in the reporters' gallery.

That the peers should be employed to thresh out for the people the details of domestic legislation irksome to their own accredited representatives, and unsuited to the gladiatorial instincts by which those gentlemen are animated, is a proposition calculated to attract public favour; but the peers having performed their allotted task, it does seem to me that the House of Commons is under some slight obligation to their dull colleagues in another place, and ought in common fairness to devote some little time and attention to a review of the work done by the Lords. This, however, is not held to be part of the bargain. The Lords may propose as much as they please; they may take weeks in laboriously threshing out a question, the matter at issue may be a government bill, but the Commons will airily refuse to discuss their proposals, even for five minutes, and without the smallest compunction will settle down at once to the next gladiatorial display.

Take, for instance, the case of the reformatory and industrial schools. The House of Lords, recognizing that the treatment of neglected children, many of whom are tempted and even forced into crime, is a matter of some interest to the community, took a good deal of pains to consider and amend bills presented by a Minister of the Crown for the reform of those institutions. Year after year the Lords passed these bills with great regularity. Year after year with equal regularity the House of Commons, being fully occupied with more exciting and contentious business, refused so much as to look at them!

Authors and artists will do well to bear in mind the extreme difficulty of getting the House of Commons to take any interest in a subject so unprofitable from a party point of view as the law of copyright. Moreover, though the public at large have a kindly feeling for literature and the fine arts, they are never likely to get violently excited over the wrongs of their favourites. For the public are con

vinced that the supply of books and pictures will under any circumstances be equal to the demand.

Amid this gloomy outlook it is satisfactory to note that the cause of copyright reform has recently gained a vigorous and distinguished champion in Lord Herschell, who has brought in a comprehensive measure which has passed second reading and stands referred to a select committee. Lord Herschell was a member of the strong copyright Commission that reported twenty years ago, and whatever may be the fate of his bill, his action is a guarantee that in a position of greater power and responsibility he will not shrink from pressing forward with all his might such amendments of the law as may still be needed.

At present the law is very much what it was in 1878, when it was denounced root and branch in scathing terms such as are more usually employed on party platforms during a hotly contested election, than in the sober pages of a document recording the responsible utterances of eminent statesmen and men of letters under the chairmanship of a Tory minister who is now a Tory Duke-the Duke of Rutland.

"The law," they write, "is wholly destitute of any sort of arrangement, incomplete, often obscure, and even when it is intelligible upon long study, it is in many parts so ill expressed that no one who does not give such study to it can expect to understand it" (sect. 3).

Again we read, "The common law principles which lie at the root of the law have never been settled," and the report proceeds to shew that the statute law is as bad in substance as it is in form.

Sir James Stephen, one of the Commissioners, made a digest of the law, which is printed in an appendix. This digest is interspersed with notes and comments, from which it clearly appears that in the opinion of the learned Judge the Legislature and the draftsmen have fallen into every

conceivable error, and committed every possible stupidity which can render an Act of Parliament a godsend to the lawyers and a source of trouble and confusion to the judges and the public.

Statutes are incorporated by reference, the drafting of many of them is stated to be "slovenly in the extreme," sentences of portentous length have been constructed, in the midst of which the draftsman, as Sir James Stephen remarked, "appears to have lost himself." Different branches of the law have been dealt with at different times and in different conditions of public opinion, so that arbitrary distinctions are common which it is impossible to defend. To crown all, some of the statutes have been drafted in astounding ignorance of the law they were intended to modify.

With regard to the Acts dealing with penalties for pirating prints and engravings, Sir James Stephen complained that they were" inexpressibly puzzling," and added, “I have compared the two Acts line by line, and am by no means sure that I have got the result correctly. The sense escapes in a cloud of words." One sentence of 55 lines in one Act qualifies in two minute particulars a sentence of 61 lines in the other Act.

66

Copinger on Copyright" gives an interesting account of the evolution of the statute law. In 1556, about a hundred years after the invention of printing, we find the first trace of any interference by the State with regard to the right of selling books. In that year the Star Chamber framed an ordinance establishing the Stationers' Company, to which they gave the power of licensing, with the primary object of excluding heretical works from circulation, a matter next the heart of Queen Mary and her husband.

Other licensing ordinances were from time to time promulgated by the Star Chamber, till its abolition in 1640, and then the question was taken up by Parliament, which

at once issued an ordinance, not only prohibiting the printing of unlicensed books, but also rendering necessary the consent of the owner of a work to its publication. Parliament issued other licensing ordinances, and in 1662 passed a Licensing Act to the same effect as the ordinance of 1640.

So far then as the copyright of an unpublished work is concerned, Parliament recognized at an early date what would seem to have been previously the acknowledged common law doctrine, that the sole right of publication lay with the owner of the work.

The further question of whether there is now, or ever has been, copyright at common law in a work when it has once been published, is still the subject of controversy.

In 1679 an action (Ponder v. Bradyl) was brought raising this point. The cause of action was the printing of 4,000 copies of the "Pilgrim's Progress" of which the plaintiff averred himself to be the true proprietor, whereby he lost the profit and benefit of his copy. There is, however, no trace of the action having proceeded.

In 1681 and 1694 we find the Stationers' Company passing bye-laws as to the sole right of printing, in a form shewing they considered that copyright in a published work existed.

In 1709 a petition was presented to Parliament complaining that the "antient and reasonable usage," whereby the sole right of printing had been reserved to the owner of a work was broken through, and could only be secured by Act of Parliament. The common law right was alleged to be defective because a bookseller could recover no more costs than he could prove damages, and moreover, a remedy in damages only was asserted to be unsatisfactory, inasmuch as the defendant was always a pauper, no man of substance having ever so offended.