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then there being no common law right, it would be a new right given by Act of Parliament and the foreigner must bring himself within the terms of that Act of Parliament in order to enjoy it and to do so in my apprehension he must be able to predicate to himself that he is the subject of these realms at least for the time being.
"... then in order to obtain copyright here he must come and perform as I have already shown, the condition annexed to the enjoyment of that right and I held it to be perfectly clear that that condition is that he must reside in the country ".
Some principle must evidently lie at the root of such a question, and the principle which the Lords adopted does not want for clearness or emphasis of statement. If the case stood by itself the boldness of attacking it would be great. But it has been questioned in no unmistaken terms in the second case.
Routledge v. Lowe arose in somewhat similar circumstances under the statute of Victoria which repealed the statute of Anne, and some copyright questions were put on a surer footing. But the fundamental question of principle gave rise to divergent opinions on the part of the Law Lords, and was left in a state of most unstable equilibrium : two of them differing from what had been previously laid down, but the others declining to accept the proposed new principle.
ROUTLEDGE v. LOWE (L. R. 3 H. L. 100.]
The book called "Haunted Hearts "
was written by Miss The facts. Cummins, a domiciled citizen of the United States. Before publication she resided in Montreal for a few days, during which time the book was published in London by the assignees of the copyright, Messrs. Lowe. Shortly afterwards Messrs. Routledge published in London a cheap edition, and an action for infringement of copyright was brought, which went on appeal to the House of Lords. The case is complicated by the introduction of a new element, residence in a Colony while publication, though not printing, was taking place in England: and the question was whether an alien friend could, during such temporary sojourn within the realm, obtain copyright in England within the meaning of the statute of 1845, by which a new area of protection had been introduced.
On two points the Lords were unanimous: first, as to the place of publication-that it was the United Kingdom and not the Colonies: secondly, as to the area of protection-that it was
the dominions and not merely the United Kingdom. Then Chapter VII comes the all-important question -Who are the persons entitled to the protection? To this we find a most uncertain answer, as to Lowe. the general principle: though in the special case there was not much difficulty, for Miss Cummins was an alien friend within the area of protection, and therefore entitled to the benefit of the statute on fulfilling its conditions. Lord Cairns expressed his opinion that the protection is given to every author who publishes in the United Kingdom, wheresoever that author may be resident, or to whatever country he may be subject. This is obviously the negation of the principle laid down in the previous case, and some of the Lords declined to accept it: while those who did found some difficulty in framing their argument consistently with the respect due to a decision of the House. In view of the fact that precisely the same fundamental question was in issue, it is difficult to follow the reasoning which put the former decision entirely on the construction of the statute of Anne: and in view of the fact that that fundamental question is of such great importance, it is much to be regretted that the traditions of the House did not permit a further and complete examination of it.* As in the former case, I now set out some of the more important paragraphs of the judgments.
Lord Cairns, C.
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 here for the first time 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 everything in the professed object of the Act, and in its wide 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 the country.
The decision of the House in Jefferys v. Boosey "must be taken to be the construction and effect of the statute of Anne. But it is impossible not to see that the ratio decidendi in that case proceeded mainly, if not
There can be very little doubt that the fundamental question was in fact raised in Jefferys v. Boosey, and that the vexed question involved in the law of copyright may be eliminated from the arguments. It is true that Lord Cranworth described the Act of Anne as a statute creating an exclusive privilege given to a particular class at the expence of the rest of Her Majesty's subjects: but if the case were to be thus limited it might be dropped out of consideration, as indeed Lord Westbury did in fact drop it. It is submitted that the principles laid down in the case were general and not special.
Chapter VII exclusively, on the wording of the preamble of the statute of Anne, and on a consideration of the general character and scope of the legislation of Great Britain at that period. The present statute has repealed that Act, and professes to aim at affording greater encouragement to the production of literary works of lasting benefit to the world. And accepting the decision of this House as to the construction of the statute of Anne. it is I think impossible not to see that the present statute would be incompatible with a policy so narrow as that expressed in the statute of Anne."
In concurring with the Lord Chancellor "I must guard myself against being taken as assenting to the suggestion that the Act now regulating copyright must be taken as extending its privileges to all authors, aliens as well as natural-born subjects, who publish their works for the first time in this country. It is not necessary to come to any such conclusion in order to support the decree appealed from.
"I think it a reasonable inference from the provisions of the Act that its benefits are conferred on all persons resident in any part of Her Majesty's dominions, whether aliens or natural-born subjects who, while so resident, first publish their works in the United Kingdom. This was the case of Miss Cummins and it is not necessary to say whether it extends farther; though there seem to me to be reasons irresistible for thinking that it does not. She was a foreigner resident at Montreal, and while so resident she published her work in London, which was its first publication-and that was I think sufficient to entitle her to the protection of the statute.
"I find it difficult to concur in the opinion that the present statute extends its protection to all foreigners wherever they may be resident, without saying that the case of Jefferys v. Boosey is not good law-a conclusion at which I should be very unwilling to come as to any case decided in this House, more especially as to one so elaborately considered as that of Jefferys v. Boosey. That case was decided, not on the construction of the Act of the 5 & 6 Vict. c. 45, but on the old statute of Queen Anne: but I own I do not as at present advised, see any difference between the two statutes so far as relates to the subject of the residence of foreign authors."
"Copyright under the statute of Anne was confined to Great Britain. Therefore under that statute in order to qualify himself to claim a copyright for any work which he had composed but not published abroad, a foreigner must, at the time of its first publication, have been resident
within some part of the area over which copyright extended, and to Chapter VII which it was limited.
The 29th "section of the Act requires for its full effect that the area Lowe. over which the copyrights prevail should be limited only by the extent of the British dominions. But then it will follow that the term "author", though intended to express a British subject, would apply to a foreigner taking up his residence within the limits to which copyright extended under the 8 Anne. And those limits being now enlarged by the 5 & 6 Victoria, the residence which confers the rights of a British subject as to copyright upon a foreigner may be in any part of the Queen's dominions. It was admitted in the argument that a resident native of Canada would be entitled to the benefit of an English copyright. What reason is there for denying to a foreigner resident in Canada the privileges in this respect of a native Canadian.
"I cannot help entertaining a doubt whether" the opinion of the Lord Chancellor" is well founded. If any stress is to be laid upon the preamble of the statute it does not appear to me to differ very widely from that in the statute of Anne... If therefore the statute of Anne did not confer the privilege of copyright upon an alien publisher (which after the case of Jefferys v. Boosey it must be taken not to have done) I cannot find anything in the 5 & 6 Victoria which appears to me to warrant the extension of its benefits to such a publisher ".
"The case of Jefferys v. Boosey is a decision which is attached to and depends on the particular statute of which it is the exponent ; and as that statute has been repealed and is now replaced by another Act, with different enactments expressed in different language, the case of Jefferys v. Boosey is not a binding authority in the exposition of this
"It is proposed to construe the Act (5 & 6 Victoria) as if it had declared in terms that the protection it affords shall extend to such authors only as are natural-born subjects, or if foreigners who may be within the allegiance of the Queen on the day of publication. But there is no such enactment in express terms and no part of the Act has been pointed out as requiring that such a construction should be adopted... The preamble is in my opinion quite inconsistent with the conclusion that the protection given by the statute was intended to be confined to the works of British authors. On the countrary it seems to contain an invitation to men of learning in every country to make the United Kingdom the place of first publication of their works: and an extended term of copyright throughout the whole of the British dominions is the reward of their so doing. So interpreted and applied the Act is auxillary to the advance
Chapter VII ment of learning in this country. The real condition of obtaining its advantages is the first publication by the author of his work in the United Kingdom. Nothing renders necessary his bodily presence here at the time, and I find it impossible to discover any reason why it should be required, or what it can add to the merit of the first publication.
"If the intrinsic merits of the reasoning on which Jefferys v. Boosey was decided be considered (and which we are at liberty to do for it does not apply to the case as a binding authority) I must frankly admit that it by no means commands my assent. I abstain from criticising the arguments in detail, for the process could hardly be consistent with the great respect due to judicial opinions delivered by your Lordships.
"The sum of the whole reasonning is the conclusion that a British statute must be considered as legislation for British subjects only, unless there are special grounds for inferring that the statute was intendend to have a wider operation.
"But by the common law of England the alien friend, ami, though remaining abroad, may acquire and hold in England all kinds of pure personal property, and when a statute is passed which creates or gives peculiar protection to a particular kind of property, and does not exclude the alien, why is he to be deprived of his ordinary right of possessing such property and being entitled to such protection?"
Lord Colonsay declined to express an opinion on the liberal interpretation of the statute which had been suggested, in view of the difference of opinion which had been expressed with regard to it, and also in view of the fact that it was unnecessary to determine it.
With all the respect which is the due of so august a tribunal, it cannot but be matter of regret that the fundamental principle was not gone into as elaborately as the question of copyright, which cannot be other than a particular instance of the application of the principle. If copyright were, as it was treated even by Lord Cairns, a reward for the production of learned books, instead of being what it is, a benefit conferred on the authors of good and bad alike, this treatment of the case would have found more warrant. As it is, we have two leading cases dealing with the same basis of facts, and the principle laid down in the first case as applicable to them criticised by Lord Cairns in the second case, and Lord Cairns' criticism itself criticised by Lord Cranworth. The actual point in issue is now of little consequence, for the case of foreign authors has been amply provided for by subsequent legislation: but the fundamental principle is important, and what the Lords did not do must be attempted, and an