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DAWSON MONTREAL DA^VSON HKOTIIERS, PUBLISHERS ii^ 'C-*- ■■: tmm EX-LIBRI5 • JAMES • DOUGLAS Msssssa COPYEIGHT IN BOOKS AN INQUIRY INTO ITS ORIGIN, AND AN ACCOUNT OF THE PRESENT STATE OF THE LAW IN CANADA 31 c£ccfttrc BEING ONE OF THE "OCCASIONAL LECTURES" DELIVERED BEFORE TUB LAW SCHOOL OF BISHOP'S COLLEGE AT SHEKBROOKE, P.Q. TuuiiaoAY, Januaey 26th, 1882 BY S. E. DAWSON MONTREAL DAWSON BROTHERS, PUBLISHERS 1882 Entered according t(i .\ct .,1 I'iiriiafm.iii l.vS I.' I..,. .\Hiuiltuii', :il •llliiivii, III Ihcyciir l.HSil'. ' PRINTK.. ,.V T.,K GAZmK 1'UINTlNGCuin.ANV, M,)NT.,KA, COPYRIGHT. It' Aliiiister '1 Mr. Chairman and Gentlemen, I sliall not apologise for the dryness of my subject to-(liiy, uoi' for the dry manner in whidi it mnst be treated ; because tliose whom I am now addressing, being students of law, know well that the goddess Themis is not one of the Muses, and that those wlio follow her find more thorns than flowers in her path; but I do a[)ologisc for the linsty manner in which I have been (tbliged to prepare this paper. I w* uld gladly have spent more time over it if a contemplated absence in Europe had not [)ress(Hl me. Fortunately, the definition of the subject is easy. Copy- right is the right of nudtiplying copies of literary or artistic works. It is primarily applied to Books, but extends also to Paintings, Drawings, and Statuary; and is held to embrace the cognate subjects of speedies, lectures, and of musical and dramatic representations. But copyright is not the property Avhich the author has in hia unpublislicd book or manuscript. That is a simple right of property, as in the case of any other moveable thing, and will be regulated by the civil or the conunou law. Co})yright in all countries is regulated by statutes, and it commences at the instant of publication. Although the underlying principles which govern all these classes of copyright are the same, yet it is evident that the mode of applying them must vary much in the case of subjects so different as the representation of a drama, and the reprint of a book. I propose in this paper to confiue myself mainly to the right of copy in books. A 2 Cojii/i'lyht. Oh this) subject, as on most others, two distinct schools of tlioujfht exist; holding extreme views and i'undanientally opposed to cacii other. Th(! one party hohl that the title in tli(^ copyrijfht of a hook is a iKitiind iinlcffdsihle rIylU, existing at the eonnnon law, anil |)er|)('tual to the same extent as real j)roperty, snch as lands an»l houses. The other i)arty hold that it is a statutory right, granted hy goveriunents in the interests of literature, anti lor the hencnt of socii'ty generally; and therefore existing oidy under statutory conditions which may at any time he eidargear, a writer of two large volumes on the Law of Literature. He cites the "Institutes," Book 2, Title 1, chapter 33, as follows : — " Si in chart is memhrauissc tuis, carmen vcl historiam, vel oralionem Titius scripscrit, hujus corporis nou Titius, sed tu don\inus esse vidi'ris." ]Mr. Alorgan writes mniihrdiilxsr, which is not Latin, for membi'ditisrc, besides altering the tense of the last verb. The passage correctly translated w«)uld read : If Titius has written a poem, a history, or a speech upon your ])aper or j/our ])archment, it is ijou, and not Titius, who will be the (twner of the thing. It was a simple case of acccssio, and had reference only to the labour of transcription, as is evident from the context. Titius had the right to transcribe any poem he chose. Any student at law is familiar with that ])rinciide, for it is elemen- tary in the Civil Law of (Quebec. The ownershij) according to Koman Law I'ollowed the paper and the parchment — a very singular method of establishing the right to copy of an author. Equally unfortunate are Mr. Morgan's citations from Juvenal and Martial. They merely establish the fact known to every- ' %\. Co/n/rif/ht, ■ , ; .: : ;: body, thnt there were in lioiuo well-known bookaellers, who kept stocks of books on hand which, by the way, they sold at very moderate [U'ices. It is a very common error to sni>poso that the ancient world was very badly sni)i)licd with books, to transfer to the times of Greek, Komaii, and !0//(■ library. In every wealthy bonselitild was a servant to read aloud, and iinother to copy boob- You all remember Ti -o, Cicero's freedman and very dear friies. The preamble to the Charter sets forth its object. It reads : " Know ye, that we, considering and manifestly perceiving " that several seditious heretical books, both in verse and prose, " are dady published, stamped and printed, by divers scanda- " Ions, schismatical, and heretical persons, not >nly exciting our " subjects and liege men to sedition and disobedience against " us, our crown, and dignity ; but also to the renewal and " propagating very great and detestable heresies against the " faith and sound Catholic doctrine of Holy Mother the " Church, and being willing to provide a remedy in- this case." For such objects the -Stationers' Company, which, like all the other ancient trading guilds, had existed from the Middle Ages, received its charter ; and powers were given to it *' to search out and destroy " books printed in contravention of the monopoly, " or against the faith and sound doctrine." They could " seize, take away, have, burn, or convei'tto their own use " whatever thfy might think was contrary to the form of any " statute, act, or proclamation made or to be made." This .t 8 Copyright. charter is still in existence, bnt the entry of all copyrights at Stationers' Hall is the only remainhig right under it, which has not been abrogated or fallen into disuse. It was granted in the year I.O.'jS. Hut before that, in 1469, the Senate of Venice had oomnicnccd to issue privileges to printers. Ileniy VIII. had also issned them; and one sentence, in a privilege he issned in 153i,, gives a cliio to the origin of the right of copy. It was issued in favour of " Master Jehan Palsgrave, Angloys, " natyf dc Londres ct graduo de I'aris," for a book which he is said " to have made with great and long continued dili- "gence; and in which besydcs his great labours, payns, and " tyrae thereabout employed, ho hath also, at his proper cost find " charge, put in print ; wherefore, '" continues the |)atcnt, " we, " greatly moved and stirred by due consideration of his said " long time and great diligence about this good and .very " necessai'y i)urpose employed, and also, of his said great costs " and charges bestowed about the imprinting of the same, " have liberally and benignly granted, unto the said Master " Palsgrave, our favourable letters of privilege, concernirg his " said book called ' Lesclarcissement dc la langue fran9oise * " for the space and term of seven years next, and immediately " after the date hereof ensuing." It must not be supposed that these royal privileges were always granted to authors beciiuse of their authors' rights. They were mono[)olies granted for various reasons, and generally to printers. Because if authors' rights were the moving causes of these patents, they would not have been granted for the works of Teiencc, Virgil, and other heathen writers. As the early printers enlarged their establishments they applied everywhere to the Royal authority for these privileges; and the more the ruling j)owers felt the power of the press, the more earnestly they endeavoured to regulate it by licences and iH-iviloges. Queen Elizabeth was much addicted to granting such monopolies. She granted to Richard Tottal ;y, monopoly of printing law books, to Byrde, of music books, to Marsh, of school books, to Flower, of graumiars, to Vautrolilu-, of Latin books, to Day, of Primers, r I t ^ 'i Copyright. 9 and to Symcocke, for all things printed on one side of a sheet provided the other side was white paper. This she did in the face of the Stationers' Company, who complained to no effect. No doubt, there were various good reasons for these pi'ivi- leges, which Avould appear if we liad the Patents before us ; but the point I want to make is, that these people were not authors, and moreover that, for the most part, these rights were granted for definite and different periods of time. No doubt authors got j)rivlleges also ; but their rights flowed from the authority of the Crown precisely as to-day they flow from the authority of the Parlianicnt. It was not supposed until long after, that an author had an inherent right of copy. In Scotland, as in Fi-ance, where the civil law prevailed, the lawyers held that printing was inter regalia ; and throughout all Europe this power of granting privilege Avas exercised directly or delegated to Universities, Commissions, and Bishops, and always under specified limitations. In England it was exercised chiefly by High Commission, in the court of Star Chamber, until 1640 ; when, during the great rebellion, that Court was suppressed. But Parliament, unable to tolerate the freedom of the press, or, as it was then styled, the licentiousness of libels, soon passed another Licensing Act ; and such Acts were continued under various conditions until 1679, when the last expired. It w.as in these Licensing Acts during the Rebellion that ownership in literary property began to take shape, for these all provided that no work could be printed without the consent of the ownc. The overthrow of the throne destroyed all monopolies, and in the confusion of the times the rights of authors began to emerge. Doubtless the influence of Milton was felt on their behalf; and the first evidence on record of an aut/ior\s right of copy is in the case of " Paradise Lost." This transaction is usually misrepresented. The bargain was that Simmons was to pay five pounds cash, five pounds more when 1,300 copies were sold, and five pounds each for the second and third editions. It took seven years to sell the first 1,300 copies, and in 1680 Milton's widow sold her interest for eight 10 Copyright. pounds more. Here, then, we have a definite and rational starting-point for the autlior's right to copy. It would l)c tedious to trace out tlie various enactments of the Licensing Acts, and the greater confusion which followed on the expiration of the last one in 1679. No injunctions seem to have been granted, hut there were suits at Common Law for dauiages. At last, in 1709, in the 8tli year of Queen Anne, tlie first Copyright Act was passed, and it was not repealed until 1842. The title of llic Act is " An Act for the Encouragement of Learning, hy vesting the Copies of printed hooks in the Authors or Purchasers of such Co])ies during the time mentioned." The word copies liere was the term then used ior copyright, and this right was /»// the Statute then vested in the authors or their assigns. This statute was well called a general patent or privilege granted to authors. Canada, and especially this [)rovince of Quebec, is not only an English country — it is a French one : and, inasmuch as the foundation of our Civil Law is derived from France, some notice should be taken of the French law. But that is very clear. It is the same story as in England, but more distinct, more nncpiestioncd, and continued until more recent times. Renouard shows tliat tliere were no authors'' rights. There were oidy Royal privileges direct or delegated. Even so jjopular an author as Voltaire derived very little profit from liis books. lie made money and became rich by speculation, not by literature. In 1777 the rights of authors began to be recogin'sed ; for in an arret issued in that year, " all printers are forbidden to print books for "which privileges have been granted during the existence "oftiiese privileges, and even after expiry, without permission " of their authors." To show, however, how uncertain these authors' rights had been, I may add that another article in the same arret provides that " whereas many persons through- " out France had printed, and then possessed, large quantities " of books printed without any permission, and whereas great *♦ loss would be occasioned unless such persons were allowed " to dispose of them ; permission is granted to dispose of such Copyriijht. 11 « stocks, but no more copies are to be printed." At last, in 1793, when the Great Revolution had overwhelmed the monarchy, the first French Copyright Act was passed by the National Convention, and the rights of authors placed on a solid basis. The right of copy does not therefore appear in our Civil Code, because our laws date from a period anterior to the Revolution. But soon there arose a tremendous controversy, which divided nt the time, and still divides, the greatest legal minds in England into two opjutsing parties. I can only indicate the salient j)oints of the (piestion. When such men as Lord Mansfield and Lord Camden, Lord Ilardwickc and Lord Brougham, adopt and vehemently urge oi)posing views, it does not become a layman to express an oi)inion. This was the question — Does copyright exist by Common Law, fortified and ex- tended by statute? or is copyright a creation of the Statute Law? In Lower Canada this is a theoretical question; but in Ontario and in the Lower Provinces it might be a practical one. For the Common Law of England passed into those latter pro- vinces; and, if copyright exists at Common Law, damages mi'i-ht be claimed in addition to the penalties under the statutes. In any case the question is one of great theoretical interest. As lately as 1851, in the case of Boosey and Jefferys, this sharp divergence of opinion appeared. In that case Lord Campbell said: "The first question discussed before us was " Avhether authors have a copyright in their works at Common " Law. This is not essential for our determination of the « ])resent case. If it were, we are strongly inclined to agree " with Lord Mansfield, and the great majority of the Judges, " who in ]Millar v. Taylor, and Donaldson v. Becket, declared " themselves to be in fiivour of the Common Law right of « authors." In this very same case, in appeal, Baron Pollock said : " Copyright is altogether an artificial right, not naturally " and necessarily arising out of the social rules that ought to ■H 12 Copyright. " prevail among mankind assembled in communities, but is a " creature of the nninicipal law of each country, to be enjoyed " for such time and under such regulations as the law of each " state may direct, and has no existence by the Common Law " of England." Lord St. Leonards and Lord Brougham held similar views.* I leave this question for you to meditate upon, and will simply relate the way it arose and the decision .arrived at. After the statute of Queen Anne had been passed in 1708, it was assumed by authors and publishers that, besides their right under the statute, they had a Common Law right still existing to which the statute was, as it were, an adjunct. In 1727, Thomson, the poet, published " The Seasons," and in 1729 he assigned it to Andrew Millar. By the terms of the Act the sole right of printing was vested in the author for 14 years and no lonyer. Consequently', the copyright cj^pired in 1741. But the assignee, Millar, went on printing imdisturbed, supposing that his Common Law right survived ; and in this idea he was supported by the fiict that injunctions were frequently granted in favour of books of which the statutory term had expired; notably in the case of Milton's "Paradise Lost." But in 1763 Robert Taylor reprinted " The Seasons." Millar sued him, and the case came on in the Court of King's Bench before four Judges. Three of them. Lord Mansfield, and Justices Willes and Aston, decided, Mr. Justice Yates • This divprgencp of opinion sooms to have arisen from two fundamentally (lifforcnt ronci'ptions cnnecniiiig Natural Law and the Common Law of Kngiand. Mr. .Tustii'o Willes said : " Tho Coninioii Law, now so called, is foundo^l on the " Law of Nature and Hcason. Its grounds, maxims, and priiiriplcs are derived "from many diirorent fountains— from natural anil moral pliiiosopliy, from the " Civil and Canon Law, from logic, from the use, ronversation, and custom "among men, collected out of the general disposition, nature, and condition of " human kind." In the same ciise, Mr. Justice Yates said : " I give my opinion " as a common lawyer. . . . Improvement in learning ■«•»« no part of tho " thoughts or attention of our ancestors. The invention of an author is a species " of property unknown to tho Common Law of England ; its usages are im- " memorial, and the views of it tend to the benefit and advantage of the public " with respect to the necessaries of life, ami not to the improvemeut and graces " of the mind. The latter, therefore, would be no part of the ancient Common " Law of England. . . . Tho Legislature, indeed, may make a new right." ■I X Copyright. 13 will 1 dissenting, that copyright existed at Common Law, and that the Act of Queen Anne was a cumulative remedy against infringement. Scarcely was this decision rendered in 1770, when the whole question was reopened by Donaldson, who reprinted a book of which Becket claimed a perpetual copyright at Common Law. With the decision of Millar v. Taylor be- fore him the Chancellor granted an injunction, against which Donaldson appealed to the House of Lords. By order of the House, three questions were drawn up and submitted to eleven judges. " 1. Whether, at Common Law, an author of any book " or literary composition had the sole riglit of first printing " and publishing the same for sale, and might bring an action " against any j)crson who printed, published, and sold the " same without his consent." This reus decided in the affirmative liy eight Judges to three. " 2. If the author had such I'ight originally, did the law " take it away u]»on his })rinting and publisliing such book or " literary coniposition ? And might any [)erson afterwards " reprint and sell for his own benefit such book or literary " composition against the will of tiic author ? " This was decided in the negatioe by seoen to four. " 3. If such action would have laiu at Common Law, is it " taken away by the statute 8th Anne? And is an author " by the said statute precluded IVom every remedy except on '' the foundation of the said statute, and on the terms and •'' conditions prescribed thereby? " Thi:i tons decided in. the affinnatiiu' by six Judges to five. On motion, this decision was adopted in the House of Lords by a majority of twenty-two to eleven. It was then that Lord Camden delivered his celebrated speech against the perpetuity of literary property, and was re[)lied to by Lord Lyttleton. Upon this decision the law now rests, and briefly it amounts to this : L That an author's right over his unpublished book exists by the Common Law. 14 Cojtyriffht 2. That [)ubIication by the author would not invalidate his Coiumun Law right to copy. 3. That the .statute takes away the author's Common Law right after puhUcatiun, and substitutes in lieu thereof a statutory right. Although the Act of the 8th Queen Anne was not re- pealed until 1842, many Acts were [tassed in the interval as new subject-matter arose for discussion and settlement. These were the 8th George II., concerning engravings, amended by the 7th George III., the 17th George HI., and the 6th and 7th William IV. The 15tli George III. related to University Copyright; the r>4tli George HI. and loth and 14th Vic- toria to 8culi)turc. The .'Jrd and 4tli William IV. referred to Dramatic Compositions ; the .'Jth and Gth oC the same King to Lectures. The .^th and (5th Victoria, cap. 45, is the Act of 1842. Thcii! are also two recent statutes on international Copyright, and one concerning pliotcgraphs. A very large mass truly of statutory law, which lortunately we need not further allude to. While England and Scotland were bound by these statutes and decisions, there grew up in Ireland a large business in reprinting English copyright books. But, upon the abolition of the Irish Parliament in 1801, the Copyright Acts were extended to Ireland, and the printers there found their occupa- tion gone. INIany establi.shmcnts were closed, and the whole publishing business centred in London. One remark 1 would like to make before proceeding to another liranch of my subject. If the right to copy existeil as a Connnon Law right, the statute of Queen Anne, which did not extend to Ireland, could not atlect such right in Ireland. Why, then, was not this reprinting stopped by Common Law r This question was put by Lord Dreghorn in 1772, and I have not found the answer to it. As I have already intimated, with the greater part of this mass of legislation we, in Canada, have no concern, for the reason that Acts of the Imperial Parliament are not binding outside of the three kingdoms, urdess it is so specially provided ' Copyright. 15 and enacted. Two of them only extend generally to the British Doininions. They are the 3rd and 4th Williiun IV., cap. 15, concerning the Drama, and the 5th and 6th Victoria, cap. 45. These two Acts are in force in Canadca, and I may observe here that the publisiiers of engravings were so well satisfied with the state of the law as it was, that they declined any interest in these two Acts, and that, consequently, engravings and prints are not protected from republication in Canada. As 1 have restricted my subject to Copyright in Books, we are only concerned this evening with the second of these two Acts, viz. the 5th and 6th Victoria, or the Act of 1842. This Act, connnonly called Serjeant Talfourd's or liord Mahon's Act, was promoted by persons holding the nu»st ex- treme views concerning literary [)roperty. The C«)lonies were then weak, and what is called " llesi)onsible Ciovermnent" had not been jxranted to tlu! North American Provinces. Books were published in biUgland at very high prices, freights were high, and communication was mostly by sailing ships ; so that these provinces had IVom the first got their supplies of books from the United Stales. This Act not oidy forbade the reprint- ing of Knglish books in the Colonies, but it j)rohibited the importation of reprints from foreign countries, and the eolo nists suddeidy found themselves cut off from any available supply of books. An outcry arose from all parts of British America. In Nova Scotia the Mouse of Assembly passed an address to the Queen. Jn New Brunswick the Government protested through the Lieut.-Governor. In Canada remon- strances were drawn up ;uid forwarded. But the Board of Trade gave no lu»j)e (>f mitigation. The colonists were in- formed that the pul)lishers were [)reparing cheap books for them. At the urgent instance of the Home (iovernment some of the juddishers did prejtare a cheaper series of books Su(th a scries was Murray's Home and Colonial Library, but it consisted of old books only. It contained none of the new and fresh books which the colonists Avantcd. The publishers, fortified by the new statute, settled themselves down to their interests in the narrow kingdoms of the British Isles. They 16 Copyright. prepared books only at extravagant prices, to be lent by cir- culating libiarics. They completed their work of turning the English people into a [)eople of book-borrowers, and thoy did not care that the sparsely settled colonists of America could not be supplied by libraries, but would have to buy books or do without reading. The absui'dities of the English book- trade are, owing to this system, almost incredible, and establish the truth of Lord Macaulay's words that copyright is mono- poly. For instance', a leading historical work is published in Paris with profit to the author at 9 francs. The French copyright edition is sold in London at 9.v. sterling, but the translation under the International Treiity is sold at IG.v. Such was the system which the Act of 1842 sought to impose on the Colonies. And for a few years it ujns imposed uj)on the Colonies. In those days the Colonial Post Ottice was administered by IJritish olfieials, and Imperial otficers responsible only U^ Eng- land watched over, in our custom-houses, the execution of Imj)erial laws. They examined the baggage of travellers and the packages of booksellers, and seized all United States reprints of English Ixtoks, and all magazines containing matter derived from English sources. In Montreal especially they were; very active. Every case or parcel for a bookseller was opened, and the title-page of each book was carefully compared with a vohuninous printed list of many hundred folio pages. If" the title was found in the list, the book was seized and burned. The bot)ksellers suffered, but the public got their books as before, for the trade Avas diverted into the hands of travelling book-agents. In process of time the booksellers adapted their business to the circumstances ; and it grew into a war of wits between them and the Imperial officers. One official made seizures from the shelves of the booksellers' shops, and threatened domiciliary visits to j>rivate houses. On one occasion, vexed at his inability to stop the import of American reprints, he seized the Laprairie steam- boat for bringing them over the river with the other imports into the city. At that time " Macaulay's History of England ' Cnpi/riylit. 17 was the book in orroutcst fleinand. Tlio American edition was 7.5 cents a volume ; tlie English edition was 5 dols. Every house iiad a copy of Macauhiy, but the Enylish edition of it was a curiosity. Such was the state of things which tiie EngHsh puhlishcrs would like to have revived in Canada, and suggested to our Government in IHiii). Where a whole coinnumity is dctermiiicd to disohey any given law, the repeal of that law must soon come alxMit, and in this case the antagonism was heightened by the arrogance of the imperial otlicers. The Canadian (lovernment in one or two cases issued permission to return some books which had been scjized, to the United Slates; t)nt the I'^nglisli iitHi;er refused to give them up and bui-ned them. iVt last, in ISIO, the Custom House was fully handed (»ver to the Canadian Government, and the last Imperial otlicer departed to England. During this time urgent remonstrances were incessantly made by the Provincial Governments. The lin|)erial (iovcrn- nient replied that the measure was not a Ministerial one, but had been adopted by Parliament on the suggestion of an indi- vidual member. ISIr. Gladstone, then Colonial Secretary, requested the Board of Trade to rei)rcsent to the publishers, " in iioiided ami not quoUjiid ternis,'^ the importance of modifying their exclusive views, and of making some provi- sion for the intellectual needs of the Colonics, Finally, in 1847, the Imperial Parlianumt passed an Act authoiising llcr ]\Iajesty to issue an Order in Council to suspend that [lorlitm of the Act of 1842 which related to importing rc()iints from abroad whenever any Provincial Government made provision for the rights of authors by imposing a special duly ior their benefit. The Canadian Government imposed a duty of 12^ per cent., which still appears u[»on our Taritl', This was accepted by the English Government as satisfactory. The Order issued, and in consequence, the only portion of the Act of 1842 which now is in force in Canada is that which [)ro- hibits reprinting ; and this it is which restrains the Toronto publishers from reprinting Mark Twain's last book. 18 Copyrh/ht. Tliiviiiji ll)iis hroiijflit tldwii tiu; history of Copyright to tho |Mvsc'ii( inoiiinit. I pass to the (;unsitlc>ratioii of the actual Htale ol' tho Slaliiti' Law of Canada. I will only proniisu l»y sayiii}^ that in all thoso (incstions yon must farrliilly distin- {Tuish hotwc'cn (ho ('oiiiiikui /^iiin or Civil J^tnv right of every anthor to iho entire eontrol of his work (written or printed) before pnMicalion, and his sfin'iifan/ n'i//it or iinnnii>oli/ of mill- tijili/iiKi ((i/iiiililiriiti(>ii. It irt only the latter whieh is properly eallu«l Copyright. Coi'YitKjii r IN Canada. There have heen several Copyright Acts enaefi'd in Canada. Aets were passed in 1.S41, in lM-17. in ISOS, and lastly in lK7a. Inasnineh as this last Act repealed all the others, I will itonline my remarks solely to its etmditions. As 1 stated hefore, tln' imperial Act of 1H42 contained a new and unusual clause, extending its opeiation to every part of tho IW'itish dominions. It conseiputntly follows that any Canadian Act must lie read concurrently with the Imperial Act; and, wherever ihe two Aets an- found to «dash, the Canadian Act nuist give way. It happened that the (Jovern- incnt whicii passed the Act of IS?.') called in the assistance of persons practically acipiaintcd with the publishing business; and the Act was drawn so that no clash can occur between them ; but, as the conditions vary, an author may obtain |irotec- tion undtr one which is rcfusi-d by the other, as in the case of ]\Iark Twain. The co-existence of two distinct laws in Canada has led to much confusion aiid tlisappointmont ; but th(> prin- ciples which guide them are simple ciuuigh. These 1 will give, rejecting details, which anyone may pick up from a perusal of each statute. And 1st, the Imperial Act: The essential condition of this Act is that |)ublicatiou nnist///>7 take place in the British Islands proper. I'nblieation in C'anada, or in any other Coitmy, is of )i() avail. The object of the Act as laid down in Low v. Koutlcdge is to induce foreigners and others to publish in Great Britain, and it protects only those who do so. And yet so selfish Copyi'iijlU. 1» were tlic franiers of that iiiciiHuro, so reckless of the intorosfs of all hilt lviiSI. Lo'iuanls, in Juffcry «i. I!(josoy, lio'ld the saino vii^w. ISiirou I'olloi'k said : " Tlie objcol uf tliu I/i'nislaliirc clearly " is not to eiiCDiirai;!; Ilit^ inijiortation of foruign books and tliuir tirnt publieatiun " in this I'Diiiitry." LdhI Chancellor Cranworth also connci'tuil tho idea of printing with j)nlilieatii)n. Ho said: " If a foreigner, having composed, but " not having puiilishod, a work abroad, wore to come to this country, and, tlio " week ^r ilay after his arrival, were to piint and ^puOtish it here, he would be " within thu protection of the statute." ' 9 9 ■nwHi 20 Ci)pijrUjht. Britisli Tslaiuls is iiccessary — is, therefore, residence in those islanih also necessary ? The case of Low i\ lloiitk'diijc !ii final ajtpeal settled that in the negative. It decided that the residence of the anthor, no matter how tenij)orary, (iiii/wlicrc in the. liritisli iloiiiiiiiniis, while his book was beini!; pnhli.shed in England, was sulHeient. Lord Cairns and Lord West!)ury went so far as to say that prior publication without residence was sulficient, but to thi ; extriine view Lords Chelmsford and Cranworth did not assent. One other condition of the Imperial Act remains- the boi)k nnist be registered at Stationers' Hall, but this registra- tion is t)nly necessary prior to the connneneement of an action. 1'he omission to register does not invalidate the co]n - right. A book can be registered after its publication, but il must be registered previous to an action at law. Under the Imperial Act, as inter[)retcd by Low '•. llout ledge, many celebrated American authors have secured a copyright overall the IJritish Dominions. Many of them ha\e come with letters to my own house. Annmg them were Dr. Oliver Wendell Holmes, Heiwy Ward lieecher, Mrs. Whit- ney, Miss Smiley, Ex-l'resideut Jell'erson Davis, Buyard Taylor, I*. T. Ijarnum, Miss Cummins, upon whose book the celebrated ilecision was given ; and last of all, Mark Twain. One ease is so peculiar that 1 nuist mention it more specially. jNIr. Kwong-Ki-Chu, a Chinese; gentleman attached to the Chinese delegation residing at llarltord, wrote a very remark- able book — a su[>plement to all I'xi-iting Lnglish dieticMiaries. He is a good English scholar, and had devoteil years to the elucidation of idiomatic and collorpiial expressions, as well as of slang and cant words not found in any dictionary. These he analysed and explained in good language. He appended to his book a collection of Latin and French phrases, a short history of China, a Life of tlesus, and one of C<»nfucius, and a collection of Proverbs, Chinese and En<;lish. It made a volume of 900 pages. He procured a co[)yright iii the United States by a transfer before publication to United States Copyright. 21 citizens. Then he was anxious lest liis book should be re- printed in -long Konp;, so he published it first in London and resided for a week ir Montreal, by that means effectually barring the Ilong Kong printers from pirating his work, which he intended chiefly for sale in China. He is a singnhirly intelHf'ent man. His hook is amusing, for it is difficult to suppress a smile on residing an clalxu'ate explanation of such exi)rcssioiis as " to stick in one's gizzard," " to tip a fin," " to vamose," " to see the elephant," &c. &c. One point remains to be noticed in the Engli"!! Act, and it is very im))ortant. The fraincrs of it were very carefid to demand first /ni/t/imfiou in Great Britain ; but they omitted to mention the word " printing." It (consequently follows that an Americiin citi/eu can procure British copyright by sending his author to Canada and his mannfiictured luxdvS to London; while an English or Canadian author cannot procure copyright in the United States under any condition short of bond Jide citizenship or d(»micile. I come now to the Canadian Act of 1875. Those who had to do with the framing of that Act were perfectly familiar with the state of the English and American law. They could not touch the Imperial Act, so they ignored it. They were care- ful not to alb'de to it in any way while avoiding collision with it. So jealous arc the Englis' ;ml)lishers of any Colonial copyright legislation that the Act was reserved by Lord Duiferin under special in-^tructions. On its arrival in Lond»m the customary storm of misrepresentation and abuse broke out in llie '"Times" and ';l her Loudon newspapers. The Publishers' Association sat upon it, and various legal luminaries were called in. But fii.ding that tlu^ Act was strictly a local Act, within the j'owers of our Parliament, the Queen was advised to assent to it, and (he following year it became law. The first principle underlying the Canadian Act is that of reciprocity. It concedes to other nations the same jirivileges which other nations concede to Canadians. The United States demand that all who avail themselves of their law shall be citizens or residents, and they refuse international copyright ■^ 22 Coj)y right. to otlicv nations. The Canadian Act, in (loscribinf]f tlic statns of tliose wlio conic under it, specifies : " All persons domiv/ihdm " any part of the dominions of (ireat Britain, or who are citizens " of any country which lias an International Copyrij^ht Treaty " withCircnt l»ritain,"' and only those, shall share in the heiiefits of the Act. IMiirk Twain did not fall under either of tiiesc cutciforios, and the Canadian authorities wore quite ri<]jlit in refusing; his copyrijiht. If the pap(>rs had been issued they would have heen worthless at law. Those who advised the (Joveriunent in drawinj; up the Ciinadian Act. knew that the word resident was intcrjtreted Ity the United States courts in the narrowest sense — to siijjnify a person residiiio^ in a country (Hiiiiio iiniiiemli \ and they knew also that the J''n<>lisli courts held the word, in its widest possible nieanint;, to siplication Air. Cleinens acited under the advice <)(" a distinf the distinctness and precisiim of the word "domicile"" in the Civil Law. lie was misled by a false in- duction fmiii our rateni Act, and by a false induction from the <'ase of Ijow r. lioullednrc, which had no reference to our statute, lie was misled, as all lawyers will be misled who (even il they live in IJosloii) |)iesume to advise njion the laws of foreign countries. Mr. Cleinens, however, could fall back upon the Imperial Act, iiy virtue of which he now holds his book. \\'e are then face to faee with a startliiiir anomaly — the Cfipyi'i.uht which oin* Parliament refuses, the Kiij^lish Parlia- nx'iit i;raiits, and the book which cannot b? printed in Canada Avithout the aulhoi"s consent, can be iiii|)ort(ul from abroad.* In many resjiects Mr. Clemens is entitled to sympathy ; for P * Tliis li.is. in f;ict, licon Kiiico (li)no. Doharrcd l>y fha Act of 1842 from printiiif; lliis IjddU in (lanada, the work wns {irintcd out of tlio rountry, and fhe wiiet'ts, workcil oil' tlioro, More tlicii imported into Canada on payment of the 12^ jHT cent, duty previously referred to. il Copyright. 23 '■; t the Toronto people wore very a,yright notice oftentimes on their titles pretty much as they print their own names. In giving advice on a question of copyright, a lawyer should ask to see a certified copy of the entry. It mi- short of a little reltcllion will secure its repeal. Our Act is also defective in that it docs nt)t ])rovide for an action in ilanjujTos. The extreme penalty is one dollar per co]>y for every copy of a iiiratcd hook found, hut it is very difficult to find many copies to