Page images

The question is more far reaching than at first sight appears, Chapter VII more especially in connection with statutes granting rights on the face of them territorial, but to the exercise of which no territorial or other formality is prescribed or can be inferred as essential?

Take, for instance, the Married Women's Property Act, 1882; there are no territorial words in it, nor does it require any formality to be fulfilled before the rights it creates can be enjoyed. The question might possibly arise how far married women, nonresident foreigners, may avail themselves of its provisions. So far as their property abroad is concerned, the answer is of course in the negative but what of their property in the United Kingdom? and what of the rights which other persons, who come within its territorial application, have against the separate estate of married women created by the Act?

If the law in the case where there is a formality to be fulfilled is uncertain, it must be doubly uncertain where there is no formality to be fulfilled.


Passing from statutory to common law rights, the same law rights. principles must apply, and the same uncertainly must prevail : for common law rules are as capable of being expressed with as much precision of language as statutory rules, and there can be no reason why any different principle should govern their enjoyment by aliens. An instance of express exclusion may be found in the rule, that if any right (query, which does not depend on statute) may be enjoyed by aliens, they must be alien friends.

The question which most commonly arises with regard to common law rights corresponds with the last question which has been suggested in connection with statutory rights namely, as to the operation of rights which are ex facie territorial, and to the exercise of which no territorial or other formality or condition is attached. This question also lies within the area of debateable ground, and is to a certain extent dealt with in the same authorities, which we must now proceed to examine.

They deal with the law of copyright. The questions involved. have been elaborately argued in two cases in the House of Lords, and although it necessitates diverging somewhat into the details of this law, these judgments must be examined at some length: for the question how far a non-resident foreigner can obtain copyright in England, can only be a concrete example to which

Chapter VII general principles must be applied, and these cases are practically our only guide.

The copyright cases examined.

The facts.

The decision.

The difficulty in dealing with these authorities is how to keep the fundamental principles separate from the law to which they were applied. The reports of both cases are of great length; and the principle, the law, and the facts, are much mixed together it will be convenient therefore to give extracts, as brief as possible, from the different judgments, and afterwards to discuss the doctrines enunciated in them.


JEFFRYS v. BOOSEY [4 H.L.C. 814 : 10 ENGL. REP. 681.]

The question, which was decided by the House of Lords in 1854, arose under the Copyright Act of Anne [8 An. c. 19] ; it was whether a foreigner actually resident abroad could, by first publishing his book in England, obtain an English copyright. Unfortunately the facts did not allow the question to be put in so simple a form, for the work was composed by Bellini in Milan : and though it had not been published there, it was inevitable that the subject of copyright at common law should enter into the discussion. The case was further complicated by a question of transfer, and the form in which such a transfer should have been made. The opinions of the Judges were taken : six were of opinion that Bellini had a copyright transferable and effectively transferred, four that he had not. The Lords were unanimous, that as he was a non-resident foreigner, he could not have the benefit of the Act.

The following is in brief the substance of the decision. A statute conferring rights must be construed to confer them only on British subjects: it may confer them on these subjects when they are abroad, because of their "natural allegiance" which they cannot shake off: it does also confer them on foreigners who are resident in the kingdom, because of their "temporary allegiance". Further, and in the instance, the Act dealt with publication only, not, for very good reasons, with composition. Therefore, although a work might have been composed abroad, yet it might be copyrightable in England if published here: and "publication" means that it must be first "published" here, therefore must be first printed here and then "would it not necessarily and naturally follow that the man himself should be here to superintend that publication ?"

So far as principle is concerned all the old doctrines which Chapter VII we have discussed at such great length, are to be found firmly Jefferys v. embedded in the judgments, and Broom's maxim figures largely Boosey. in them. And with regard to the application of the principle to the law of copyright, the argument contained a non-sequitur in practice at every stage of it: publication here does not in fact require printing here, and even if it did in law, printing here does not require the author's continued residence near the presses. So far as the Act applies at each of these stages, the necessity for printing here can only be derived from the reading into it of the protective doctrine which Mr. Justice Bayley expounded in Clementi v. Walker:


B. & C.

261; 10 Engl. Rep.

The intention of the Legislature was that" by confining at p. 748.] the privilege to British printing, the employment of British capital, workmen, and materials would be employed and the work would be within the reach of the British public :" whereas " by extending the privilege to foreign printing, the employment of British capital, workmen,and materials, might be superseded, and the work might never find its way to the British public" The supposed necessity for the auther's presence, besides being untrue in fact, is a petitio principii in law, for that is the very point in issue.

The following extracts from the judgment will make the decision clear so far as the principle involved is concerned.

Lord Cranworth, C.

"The statute enacts that "the author of any book which shall hereafter be composed, and his assignee or assigns, shall have the sole liberty of printing and reprinting such book for the term of fourteen years, to commence from the day of the first publishing the same and no longer... The substantial question is, whether, under the term "author" we are to understand the Legislature as referring to British authors only, or to have contemplated all authors of every nation, My opinion is that the statute must be construed as referring to British authors only. Prima facie the Legislature of this country must be taken to make laws for its own subjects exclusively, and where, as in the statute now under cousideration, an exclusive privilege is given to a particular class at the expense of the rest of Her Majesty's subjects, the object of giving hat privilege must be taken to have been a national object, and the privileged class to be confined to that portion of the community for the general advantage of which the enactment is made. When I say that

Jefferys v.

Chapter VII the Legislature must prima facie be taken to legislate only for its own subjects, I must be taken to include under the word "subjects" all persons who are within the Queen's dominions, and who thus owe her a temporary allegiance. I do not doubt but that a foreigner resident here and composing and publishing a book here, is an author within the meaning of the statute; he is within its words and spirit. I go further; I think that if a foreigner, having composed but not having published a work abroad, were to come to this country, and the week or a day after his arrival were to print and publish it here, he would be within the protection of the statute. This would be so if he had composed the work after his arrival in this country, and I do not think any question. can be raised as to when and where he composed it.

"If publication, which is (so to say) the overt act establishing authorship, takes place here, the author is then a British author wherever he may in fact have composed his work. But if at the time when copyright commences by publication the foreign auther is not in this country, he is not in my opinion a person whose interests the statute was meant to protect ".

Lord Brougham.

Generally we must assume that the Legislature confines its enactments to its own subjects over whom it has authority, and to whom it owes a duty in return for their obedience. Nothing is more clear than that it may also extend its provisions to foreigners in certain cases, and may without express words make it appear that such is the intendment of those provisions. But the presumption is rather against the extension, and the proof of it is rather upon those who would maintain such to be the meaning of the enactments.

Lord St. Leonards.

"What possible right can Bellini or any other person claiming under him have at common law in this country to the exclusive right of publishing a composition made by Bellini abroad? If Bellini comes to this country and owing even a temporary allegiance to the Sovereign acquires the legal rights which belong to every subject, that of course one can understand: but what right in this country can exist in a foreigner like Bellini composing abroad and residing abroad but sending his composition here simply for publication? Where is the right? The common law cannot extend to a foreigner resident abroad, and owing no allegiance to this country. The claim of such a right is distinguishable from any case that has been cited or which can be cited, which gives a right to a foreigner with regard to damage done to his character for example, by a person resident in this country: the cases are alto


gether distinct. This is a right of property which is claimed within this Chapter VII realm, and that right of property cannot be claimed under the commen law by a foreigner who owes no allegiance to this country, and who has Jefferys v. never acquire any property or any other right in respect of residence here, by any Act of Parliament or otherwise, to make him a subject of this realm. I am therefore clearly of opinion that whatever may be the view which might be taken as to the common law right, that right never can be held to extend to a foreigner situated as Bellini is.

"The question then comes of course upon the statutes. I think we may fairly consider that it ought not to be denied that speaking generally an Act of our own Parliament having a municipal operation cannot be held to extend prima facie beyond our own subjects. It is not that an Act of Parliament may not, like the common law itself, extend its benefits to foreigners who come here and acquire that which it has been the policy of this country to give them : namely, the rights in a great measure of natural-born subjects... I venture to represent to your Lordships that it is quite clear as an abstract proposition that an Act of Parliament of this country having within its view a municipal operation, having as in this particular case a territorial operation, and being therefore limited to the Kingdom, cannot be considered to provide for foreigners except as both statute and common law do provide for foreigners when they become resident here, and owe at least a temporary allegiance to the Sovereign, and thereby acquire rights just as other persons do not because they are foreigners, but because being here they are entitled in so far as they do not break in upon certain rules, to the general benefit of the law for the protection of their property in the same way as if they were natural-born subjects.

"If this Act of Parliament extends to foreigners generally, then there is no reason why they should not publish here while they reside abroad.

"It seems not to denied that an English author may reside abroad and yet have his rights as an English author upon publication here. Why? Because he owes a natural allegiance which he cannot shake off. Residence abroad (although he may thereby have come under some new obligations, or have acquire some new rights) will not relieve him from his natural allegiance: he cannot be relieved from it by any foreign country, and therefore be carries with him the natural rights of a subject of England wherever he goes. That gives him, though resident abroad, the right to publish here, because he has always fulfilled the implied condition of being a subject of, and owing allegiance to the Crown of Great Britain. That could not of course be said of any foreigner who was not actually resident here.

« PreviousContinue »