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I 1 . I 
 
 COPYRIGHT 
 
 - 1 N 
 
 CANADA 
 
 I'HE QUESTION DISCUSSED PRACTICALLY AND rONSTlTUTlONALLY. 
 
 A series of articles reprinted from Ti..-. Tokonto Evksinu VvA.^r.KXM, 
 
 Octobor, 18 /J. 
 
 TORONTO 
 ) ROSS ROr.KRTSON. S, W. CURNKll KlXsO AND BAY STREETS. 
 
 1 879. 
 
c 
 
 THH (j 
 
COPYR I GHT 
 
 I N 
 
 CANADA 
 
 Hi: QUESrJON DISCUSSED PRACTICALLY AND CONSTITUTIONALLY. 
 
 A series oi articles leprinteil from The Toronto Evem.m; Tki.ei.uam, 
 
 October, 1S7".». 
 
 TORONTO : 
 1. UOSS UOIJEUTSON, S. W. COIINEII KING AND BAY STREETS. 
 
 1879. 
 
The 
 
 attonti 
 
 sense r 
 
 sion tc 
 
 regard 
 
 incasu 
 
 larlitc 
 
 (lustr; 
 
 antho 
 
 argun 
 
 meml 
 
 be in 
 
 necea 
 
j^\ trot3ijctio:n^. 
 
 The subject of Copyright is one that is little understood. It rarely attracts the 
 attention of the publiu at largo. It can hardly he made interesting in the ordinar> 
 sense of the term under any cireum'stancos. Yet it is believed that the conces- 
 sion to Canada of the right to exclusive jurisdiction throughout the Dominion as 
 regards Copyright, would not only bo an act of simple ju!»*iie, but to Canada a 
 measure of sound policy, one calculated large! y to increase the si j^ ,yof cheap and popu- 
 larliterature; end to assistandtocncouriige amostimportant Ijtatichof Cauadian in- 
 dustry— the printingand publishing trade— without doing any injusticeto the British 
 author. The accompanying chapters are intended to jirtsent in a concise form the 
 argument in favour of the right demanded, and in the hope that, by their perusal, 
 members of the Canadian Parliament and conductors of the Canadian Press may 
 be induced to contribute their powerful aid in securing the legislative changes 
 necessary to the attaininent of the desired object. 
 
Thi' ann< 
 th'- Imperi 
 Copyright 
 
 lianiOnt, hi 
 
 enqiiiiy nil 
 
 lishurR wil 
 
 \y,- shall ( 
 
 ocoaBion. 
 
 the way f o 
 
 with any i 
 
 giuii may i 
 
 to explain 
 
 hitherto <1 
 
 of Great i 
 
 out the ui 
 
 dian pub) 
 
 publisher 
 
 the f^rour 
 
 o oil I ion, I 
 
 Great Bri 
 
 own c.»py 
 
 In the 
 
 cording ti 
 
 as iu all c 
 
 of protect 
 
 literary p 
 
 admitted 
 
 policy an 
 
 right of tl 
 
 aa to the 
 
 tion acc( 
 
 The obji 
 
 to encour 
 
 to the pn 
 
 art, but 
 
 either of 
 
 publisher 
 
 comparat 
 
 oopyrighi 
 
 right BUS 
 
 The Cop; 
 
 (8 Anne, 
 
 unmistafa 
 
 the coi 
 
 copyrigh 
 
 m..iable > 
 
 viled th( 
 
 pui)lishei 
 
 tided to 
 
 "and n^ 
 
COPYRIGHT IN CANADA. 
 
 CHAl'TKI! I 
 
 WHAT IH t'Ol'VHUillT. 
 
 Thi announcoment th»t, at. the result of 
 til" Imperial CnpyriKhtComini^.-ion, a new 
 Copyright Law hail l)een Bubmittwl to al- 
 tho:iKlit not yot pa»ied by - the Britinh I'ar- 
 liarTiBnt, has, naturally onongh, «ucer»teil an 
 enquiiy an to how Canada ai d Canadian pnh- 
 UsherH will be atTected by the new statute. 
 \V<f shall disJUBS thut (luestinn on a future 
 occasior.. Meantime, and in order to clear 
 the way for dealing practically and intoUiKibly 
 with any matters of intereht xuch a discus- 
 sion may raise, we propose, in a few articles, 
 to explain the main foatureH and principles 
 hitherto distinguishing the Copyright Law 
 of Great Britain as it affects Canada, to point 
 out the unfair position in which the Cana- 
 dian publisher in placed in relation to the 
 publishers of the United States, and to show 
 the grounds upon which Canada has, in our 
 
 ooiiiion, an undoubted right to ask from 
 Great Britain the exclusive control other 
 own opyright legislation. 
 
 In the first place, what u copyright ac- 
 cording t( British law? In (!reat Britain, 
 as iu all civilized countries, a limited degree 
 of protection to the authors or owners of 
 literary productions, against piracy, is freely 
 admitted to be coneisteut both with public 
 policy and justice. On the other hand, the 
 right of the Legislature to decide absolutely 
 aa to the extent or period of the protec- 
 tion accorded is equally unquestioned. 
 The object of the Copyright Law is 
 to encourage persons to devote themselves 
 to the production of works of literature and 
 art, but not to create a monopcdy in behalf 
 either of intellect or commerce, of authors or 
 publishers. It was originally— and until a 
 comparatively late period— assumed, that 
 copyright was an inherent and perpetual 
 right sustainable under the common law. 
 The Copyright Aet of Queen Anne's reigu 
 (8 Anne, c. 19), howiver, proceet'ed most 
 unmistakably, as it seemed, upon 
 the contrary principle, and to give 
 copyright only a temporary and ter- 
 mf.iable character. The Act of Anne pro- 
 vided that authors (or their assigns) of works 
 published before the year 1710 should be en- 
 ticled to a copyright of twenty -one yeam 
 "and KO lohoer," and authors (or their as- 
 
 ■i ^oh) of works juiblinhi'd after that dito to 
 i copyright of fourtofi) ynrN "AHI" NO 
 LOHdK- " to < nromence from the day of lii*t 
 pnbiu'ati.in. NcvcrthcU'HH.for marly sovtuity 
 years after the passing of the Act of Anne, 
 the gpimingly clear .-vnd express declaration 
 that copyright should cxiHt only in the terms 
 of the statute, and for the periods therein 
 named, waw repeatedly ihalleni.'ed and even 
 judicially overruled. But, in 1774, the House 
 of Lords, on appeal, decided that, whether 
 copyright in a published worktlid or did not 
 e^ist in common law before the passing of 
 the statute of Anne, that statute had abro- 
 gated any such right, and that no author 
 had any property, personally or by his as- 
 sigTMi, in his works, for a lnr.t;er period than 
 the statute prescribed. This dociHioii has, 
 ever since 1774, been recognized as a correct 
 interpretation of the Act of I'nrliament. the 
 principles of which have been ombo !i(d in 
 all subseriuent liritish cr.-,.yright leL'i>dation. 
 It is necessary, then, to bear in mind, as a 
 very important element in the discussion 
 uprn which wo are entering, that by the 
 highest Imperial judicial authority it has 
 beenmost distinctly laid dows ; 
 
 (1) That an author has no ri^ht in his 
 works other than those which the law ex- 
 pressly and by statute confers ; ami, 
 
 (2) That whatever rights are granted or 
 guaranteed by statute are subject to any 
 limitation, or even to abrogation by law, in 
 the interest of the public at large. 
 
 It is hard, indeed on examining the clauies 
 of Queen Anne's Act, to conceive how the 
 Courts could evor have come to a difTerent 
 conclusion ; for, among other arbitrary 
 methods of dealing with an author's rights, 
 that statute contained a provision "that 
 "any per*on who coiisidfred the fri^e of a 
 " hook too huh. might bring the matter before 
 " the Archbi.shop of Canterbury, the Lord 
 " Chancellor or Lord Keeper, the liisho^, of 
 " London, the Chief Judge of the King'i 
 " Bench, the Chief Judge of the Common 
 " Pleas, the Chief Baron of fhe Exchequer, 
 " the Vice-chancellors of the English Uni- 
 " versities (Oxford and Candtridge), the 
 " Lord President of the ScssionR, the Lord 
 " Justice (ieneral, or the Hector of the Col- 
 " lege of Edinburgh, one or more of whom 
 " might examine into the cause of complaint, 
 "aiulsetlU the Price of the book as seemed 
 
"Junt, ani make the bookseller or printer 
 " pay all the uoatu of the person inakinsi the 
 "complaint." ** 
 
 Coiilil aiiythinf; more coiiclusivftlv demon- 
 strate th<' spirit and intention or tliu fiainers 
 of the Act of Anne, or more iucontrovortibly 
 prove that, theucef..rth, the grand purpose of 
 British copyright legislation was to oonauit— 
 notthe supposed rights of authois or their 
 assigns l.iit the uul,lieweltare,aud the pub- 
 lic welfare alone ? 
 
 Subse(iiieiit Hritiih legislation hasatlirmed 
 and realiinned this principle. For instance, 
 the Act of 1842 (5 i..ul « Vict., cap. 45), 
 which hus been till now, with some 8ub.se- 
 quent amendments, the law of the United 
 Kingdom, by its 5th section empowora the 
 f rivy Council to lioens-j ihc publication of 
 any books which the propnelorof the copy- 
 right refuses to publish, after the death of the 
 author But perliapa the most direct and 
 palpable proof of the absolute control exer- 
 oisea by the Iinpciial Legislature over copv- 
 
 I'^l? /m " '*,' fr,"^ "* *^° imperial Act of 
 1847 (10 and 11 Vict., cap. 95). We shall 
 toavo occasion to notice this Act again in con- 
 nection with other branches of the subject, 
 but do s,. 10 tile present connection merely to 
 point out tiiat, in certain cases, it actually 
 recog„,;,c.s and gives a legal status to un- 
 authorized foreign reprints of Britisli copy, 
 right works, ,1, return for a percsntaiie lixed 
 by local legislation, payable to tho copy- 
 right owner. The Aoi provides :-' ' That in 
 
 case the Legislature or proper legislative 
 
 authorit.o, ,n any British possession shall 
 ,^ be a.sposed to make due provision for se- 
 , cuing or protecting the riguts of British 
 ^authors la such possession, and shall pass 
 
 an Act or make an Ordinance for that pur- 
 •• on'./'" «'>'^11 transmit the same m a 
 " ^nTl '":'."?!; '° *''" ^'^^^'•et^'-y of titate, 
 
 ii^jesty, and m case Her Majesty shall be 
 "8uZ",";"f *'•"* '"^^ ActorOrdiauce is 
 "reasrm';^ ' ?''"'''°« *" ^""^'» *Utl""-« 
 
 " Z th L ! ""^ ^^'^^"^ ^°' ^^' Majesty, if 
 "thTen^nn /""'^ ^""^ "^ Ordinance, and 
 
 " such A ? "''** ''",^''°K " the provisions of 
 " Silts,, ,r V'"°*"'^^ oontuKiein force 
 "t,ned.nH ''"^'''^ P'-°hibit.ons con- 
 
 ridit A H i, "''fi'^ Act (Imperial Copy. 
 ♦• nr . 1^ ^ hereinbefore recited, and aiiy 
 .. fJ' '^''"H'.'"" "»'"^"»«J iu the said Act or 
 '• ellnr f." '}f' ''«'""^'' *he importing 
 " W *" •• i ^"'"'«" '•«P""t« of books 
 „Jrstcomp„sed , tten, or published in 
 
 the Luited Kingdom, an.i entitled to 
 ..copyright therein, shall be suspended so 
 
 tar as regards such colony." Every 
 
 American reprint, therefore, gold in Canada 
 to.day by virtue of the fore^oi. ' Vu" ctment 
 ... a witness to the spirit of Brit^rj^;!;""'! i 
 
 Srr'' ^^^ ''' ^'''' "«•''« °^ -thyrsi;: 
 
 Wo have bee;, careful to bring out thus 
 c early and unmistakably the relations of 
 auth.;r8 or copyright holders to Imperial 
 
 the notion that we are assailing any vested 
 interests in Great Britain or elsewhere. It 
 18 o the very esse-ce of the case we propose 
 to present that copyright is the creature of 
 municipal regulatu.ns.and of such regulations 
 
 intenmnab.e by circumstances of placet 
 condition and public policy. The British 
 author.orany author obtaining copyright 
 under the Iinperjal statute, has no inherent 
 or inalienable rights appertaining to him in 
 O eat Britain ; a fortiori, he can have none 
 nLanaua. V.itn the proof wo have cited, 
 the proposition that authors or their assign^ 
 
 ih^h"":""/?'"^",-'' ^'''^ "« "g''*« '"'t those 
 which that law has conferred, and which 
 that law may, within the scope of its juris- 
 diction, limit, .mlarge, or take away altoge- 
 ttier, must be regarded as unimpeachable. 
 
 CHAPTER II. 
 
 lilUnsil COI'VKI(;iXT LK(;I.SLAT10N. 
 
 \V hat copyright means, and on what prin- 
 cijilc copynglit is conferred under British 
 law, we have explained in a former article. 
 We now propose to notice the extent and 
 scope of past British legislation in relation 
 t" coypnght. It may be convenient, 
 in dealing with this question throughout, 
 to regard our remarks as applicable m the 
 pr.^aent instance, simply to the copyrighting 
 ot published works, as. practically, they alone 
 are involved in the pending controversy 
 Ihe statute of 1710 (8 Anne, c. 19) has been 
 already referred to as the basis ot all subse- 
 (luent Imperial copyright legislation. It 
 provided that a copyright in works published 
 before 1710 should endure for twenty years 
 and no longer, and in works published sub- 
 sequent to 1710 for fourteen years and no 
 longer. This statute, and all the Acts in 
 amendment thereof previous to 1814, were 
 limited in their operation to the British Do- 
 minions in Kuro/u: But, in an amendiHg 
 Act passe<l in 1814 (54 Ceo. IIL, c. 156), the 
 worti8"m Europe" were omitted. Prom 
 that time, coiisecpientlv, the Imperial Copy- 
 right Acts extended to"the whole of the Bri- 
 tish dominions, and these are defined by the 
 Act of 184-2 (5 and 6 Vic, c. 45) to be 
 and include "all parts of the United 
 " Kingdom of Great Britain and Ire- 
 
■old ia Canada 
 UK euactinent, 
 tisli copyright 
 of authors are 
 
 ring out thus 
 e ruliitiona of 
 
 to Imperial 
 ire addressinj; 
 n their minds 
 ag any vested 
 slsewhere. It 
 ISO we propose 
 le creature of 
 ich rejiuiations 
 I nature bein^ 
 ies of place, 
 
 The British 
 ng copyright 
 13 no inherent 
 ing to him in 
 (Jan have none 
 '■0 have cited, 
 their assigns 
 ;hts but those 
 <\, and which 
 e of Its juris- 
 away altoge- 
 npeachable. 
 
 SLATION. 
 
 on what prin- 
 jnder British 
 brnier article, 
 e extent and 
 n in relation 
 convenient, 
 
 throughout, 
 )licable in the 
 
 copyrighting 
 ;ly, they alone 
 
 controversy. 
 
 19) has been 
 
 of all aubse- 
 {islation. It 
 rks published 
 twenty years 
 iblished sub- 
 ifears and no 
 
 the Acts in 
 ;o 1814, were 
 e British Do. 
 an ameudiHg 
 ., c. 156), the 
 itted. From 
 iperial Copy- 
 e of the Bri- 
 efined by the 
 . 45) to be 
 the United 
 in and Ire- 
 
 'land, the islands of (iuernsey ami .Ur. 
 "sey, all parts of the East and West In- 
 " dies, and all the colouiuH, suttlcmeuts au.l 
 "posHMsions of theOown winch are now, 
 "or may hereafter be, ac<iuired. t.^^." 
 be seen, therefore, that the rights of Bntisli 
 authors to copyri-ht were originally limite.i 
 to the United Kingdom an,l the compara- 
 tively few possessions of the Crown in Eu- 
 rope, and that tliey .Ihl not extend, as 
 part of the iiilun-ent rights or privileges oi 
 British sulijects, concurrently with discovery, 
 con(|uest, or colonization, l)Ut were extendec 
 -as they had previously been conferred 
 within narrow teiritoriul limits -by Impe- 
 rial statute. ThuK we lind that, prior to 
 the year lS14,a publisher in Canada was tree 
 to reprint atiy British copyiglit'''' work ne 
 pleased, while to-day he is subject, under 
 Imperial Act, t.. heavy penalties if he re- 
 prints or publishes any such work witliout 
 the consent of the author or his represen- 
 tative. , ,, ... 
 
 The Imperial Act of IS-t'J (o and b \ ic, e 
 45) exteiuled the period for which coijynglit 
 should be granted to the lifetime (.f the au- 
 thor of every book published during the au- 
 thor's life, and to a further period of seven 
 years, commencing at the time of his deaJi ; 
 or to a term of forty-two years ultogether 
 from the tirst puldicatiou of the book, 
 should that number of years not have 
 elapsed at the end of seven years from the 
 death of the author ; or if the book be pub- 
 lishtd after his death, to the term ot forty- 
 two years from the tirst publication thereof. 
 The Act provides a remedy by nction at 
 law for any infringeuient of an 
 author's rights. By the 15th section it 
 is enacted, " That if any person shall, in 
 " any part of the British dominions, 
 i< » print or cause to be printed, 
 
 " either for sale or exportation, any book in 
 " which there shall be subsisting copyright. 
 " without the consent in writing of the pro- 
 " prietor thereof ; or shall import for sale or 
 " hire any such book so having been unlaw^ 
 " fully printed from parts beyond the sea, 
 • < » • » « he shall be liable to a special 
 " action on the case, at the suit of such pro- 
 '• prietor, in any court of record in that part 
 " of the British dominions in which the 
 " offence shall be committed." Then by the 
 17th section it is further provided that no 
 person except the proprietor of the copy- 
 right shall import into the British domi- 
 nions.forsale orhire,any book tirst composed, 
 etc., within the United Kingdom, and re- 
 printed olsewhere, under penalty of forfei- 
 ture, and a fine of ten pounds and double 
 the value of the books so imported. Customs 
 ofHcers are authorized to seize all books so in- 
 fringing upon the copyright laws. 
 
 The in tcntions of British copyright legisla- 
 tion, while sulllcient protection has I'eeu 
 thrown around the authors of cpyngLwil 
 works, have been in another seuse ot Uie 
 broadest and most liberal character. 1-ora 
 Cairns, in the case of Boutledge v. Low, i siiw 
 described the object of copyright ;-- "e 
 " intention of the Act is to obtan. a beoetit 
 "for the people of this country by the ).uD- 
 " lication to them of works of learnin;.;, ot 
 "utility and oi amusement. Tins bei.elu 18 
 "obtained, in the opinion of the Legisla- 
 "ture, by otlcring acertiiiu amount ol pro- 
 "teotiou tothe aiithor,thereby inducing hira 
 " to publish his works here. This is or may 
 " be a benelit to the authors, but it is a 
 "benelit given, not for the sake of the au- 
 "thorof the work, but for tlie sake of those 
 "to whom the work is c.... uiunicate.l. i ho 
 " aim of the Leeislatur. io increase the 
 "conmuin stock of tlu literature ot the 
 " country ; and if that stock can be increased 
 " by the publication tor tlie tirst time here of 
 "anew and valuable work composed by an 
 "alien who has never been in the '-""".y; 
 "see nothing m the wording of the Act which 
 "should prevent, and everything m the pro- 
 "fessed object of the Act. and ii. its wide 
 "and general provisions, which should eo- 
 " title such * person to the protection ot tie 
 " Act, in return and compensation for the 
 "addition he has made to the literature ot 
 
 " By rS'nent of the Lords in Routledge 
 V. Low, ii connection with which oa^e Lord 
 Cairnsexpressed the views just n";'t-'''. *''« 
 Huestion was decided in the athm tiye 
 whether an alien resident f^t the tine 
 first publication (in the l^mte^l. Kingdom) 
 in any part of the British dominions c Id 
 secure the benefits of the Imperial » -py- 
 right Act. Miss Cummings, an American 
 authoress temporarily domiciled at .Mon- 
 treal, secured the copyright in London of a 
 work published there, and which became the 
 subject of litigation between the two well- 
 known publishing tirms whose names ap- 
 pear above. , ,. ■ > ;„,i„ 
 It was in the spirit of Lord Cairns judg. 
 ment that the (lovernnient of Great Britain 
 secured the passing of the Acts known as 
 the I and 2 Vict., c. o(t; the , and h \ ict., 
 
 12; and 15 Vict, c. I'2, which, piov 
 
 ide 
 that tlie authors of any foreign countries 
 may (without domicile) obtain all the bene- 
 fits of the Imperial Copyright Act, on con- 
 ditiou that similar privileges are granted Dy 
 thecountrit of which such foreign antiM.rs 
 are subjects to the subjects of (ireat l.ritMii. 
 Not a few countries have, Jsinco the first ot 
 the above Acts was passed, taken advantage 
 of this legislation to secure for their siil)ject8 
 the benefits of the British book market. 
 
Among others have been, at various times, 
 Frauoe, I'lnssia, Saxony, some dozen small 
 <torman States, Belginm, Spain and Sar- 
 dinia. While any infringenientB of the 
 Imperial Copyright Act in Canada would be 
 visited with heavy penalties.and a Canadian 
 copyright has had no force in the ITnituil 
 Kingdom, an author who happene<l to he a 
 subject of the High and Mighty Prince 
 rulingovcr Si;hwar7,burg-Kudolstadt or 
 Schwarzhurg-Sonderhauson might have the 
 free run of the Dominion of Cana^^a 
 as a part of Her Majesty's poss- 
 essir)n8. Vhc Imperial Act of 1847, referr- 
 ed lo in a former article as giving power 
 to the Cr()wn tn suspend by Order-iTi Coun- 
 eil'iu favour of foreign rofjrints of B-itish 
 copyriglit works, the Act of 1842, was also 
 passed with the best and most lil)cral inten- 
 tions. American reprints vrero the only 
 cheap editions of a large class of British 
 woiks adapted to the Canadian market. The 
 attemjjts to suppress them in regard for the 
 rights of the British copyritiht'owner were 
 very parti.aljy successful. The publishing 
 trade of Canada was as yet undevelo])ed. 
 The peojdo of Canadacraved cheap literature, 
 and it was the design of the Act of 1847 to 
 provide a means by which that craving might 
 be satisfied. But it is our design to show, 
 that, on the very same principles that have 
 led the British Parliament to pass Interna- 
 tional Copyright Acts and such measures as 
 the Act of 1 847, Imperial authority is bound 
 to emancipate Canada from the thraldom of 
 Imperial legislation, and to give the 
 Dominion the opportunity of itself carrying 
 out, in the spirit wliich has distinguished 
 the Acts of British Paiiiaments and the de- 
 cisions of British judges, the great worl'. of 
 supplying its people with the literature most 
 adapted to their means, their tastes, and 
 their necessities. 
 
 8 
 
 CHAPTER III. 
 
 COPYRKfUT LEGISLATION IN CANAPA. 
 
 Having, in previous .oiticles, outlined the 
 .ceneral principles and scope of British copy- 
 "ght legislation, we now projjose to review 
 briefly the history of cupy right legislation in 
 Canada. The first Copyright Act of the 
 Province of Canada was passed in 1841, im- 
 medi.ately after the iiuion. It is known as 
 4 and .5 Victoria, c. (jl. It gave a local copy- 
 right to any author rt'sident in the Province, 
 but contained no express stipulation that the 
 work copyrighted should be pv-^ ted in Ca- 
 nada. As previously remark. 1, the pub- 
 lishing trade in Canaila was at that time in 
 its infancy. Imperial revenue officers still 
 exercised certain functions in the Province — 
 one of which was the occasional seizure of 
 
 American reprints of British copyright works 
 —and the idea that no market but the one 
 in Paternoster Row could, or should, su|)ply 
 Canadians with sound and cheap literature, 
 was riominant in Downing street. 
 
 This is curiously brought out by a corres- 
 pondence extending over a considerable 
 period between the years bS41 and 1847. It 
 is evident that the operation of the Imper- 
 ial Copyright Act of 1842 was ex- 
 tremely distasteful to the people of Canada 
 On the 2,Srd .June. 1S4(;, .Mr. Cladstone. then 
 Colonial Secretary, wrote to the (biveruor- 
 (ieneral as follows : " With regard to your 
 " remarks on the operation of the law of 
 "copyright, I have to acipiaiMt you that I 
 "am at ])reseiit in communication with 
 " another department of Her Majestv's (iov- 
 "ernmoiit on this subject (the Board of 
 "Trade), and that I shall be careful to 
 " apprise you of the result. I cannot, how- 
 " ever, lead you tn anticipate that this cor- 
 " respondenco will enable Her Majesty's 
 " (government to announce to you their in- 
 " tention to [)ropo3e anv alteration in the 
 " statute (the Act of 1842), and I must 
 " take this opportunity of explaining to you 
 " that the present strint'eiit provisions of 
 " the law <lid not proceed originally from any 
 " proposal from Her Majesty's (Government, 
 " but were adopted by Parliament, on the 
 " suggestion of an individual member of the 
 " House of Commons, in deference to a strong 
 " public sentiment and to the arguments by 
 " which it was supported." 
 
 The last paragraph is easily interpreted. 
 The powerful publishing interest was bent on 
 securing a monopoly of the book trade of 
 the whole empire ; a ready agent was Tound 
 in the person of some private member of the 
 House ; the piratical aggressiveness of Ameri- 
 can book firms supi)lied a final argument in 
 favour of a defensive measure, and on a (jues- 
 tionfewpeople outside the trade really under- 
 stood, victory for monopoly was easy. 
 
 However, in 1847, as we have already 
 seen, the Imperial Parliament, in deference 
 to the urgent representations made from 
 Canada, did pass an Act providing for the 
 suspension, on terms prescribed, of the Im- 
 perial Copyright Act in favour of foreign' re- 
 prints of British copyright works in any 
 British possession whose Legislature should 
 make due provision for the compensation of 
 the British autlior. Accordingly the Cana- 
 dian Parliament proceeded to pass a law en- 
 actingthat the privilege of securing copyright 
 in Canada should be granted to any British 
 subject residing in the United Kingdom on 
 condition that the work copyrighted should 
 be printed and published in Canada. This 
 Act, while it did not directly touch the 
 questior. of foreign reprint importations, in 
 
9 
 
 npyright works 
 t hilt the oue 
 shouhl, supply 
 leap literature, 
 'Ret. 
 
 it by a corres- 
 considerable 
 I ami 1847. It 
 of the Inipor- 
 842 was ex- 
 pie of Canada, 
 iladstoiie. then 
 
 the (iiiveruor- 
 regard to your 
 of the law of 
 !it you that I 
 iiuication with 
 Majesty's Gov- 
 the Board of 
 
 be careful to 
 I cannot, how- 
 
 that tins cor- 
 Hcr Majesty's 
 
 you their in- 
 teratioii in the 
 I, and I must 
 jlaininj; to y.)U 
 t provisions of 
 inally from any 
 s Government, 
 iament. on the 
 
 member of the 
 once to a strong 
 ! arguments by 
 
 ly interpreted. 
 jst was bent on 
 book trade of 
 ent was Tound 
 member of the 
 eness of Ameri- 
 
 1 argument in 
 and on a (jues- 
 
 le really under- 
 'as easy. 
 3 have already 
 t, in deference 
 na made from 
 vidiug for the 
 ed, of the Ini- 
 r of foreign' re- 
 works in any 
 islature should 
 impensation of 
 igly the Cana- 
 pass a law en- 
 iring copyright 
 to any liritish 
 I Kingdom on 
 righted should 
 Canada. This 
 ictly touch the 
 nportations, in 
 
 effect held out an inducement to the British ' 
 author to secure a local copyright aa the i 
 most simple means of excluding foreign re- ,, 
 prints by the publication of cheaj) competi- | 
 tive Canadian editions, and giving the book j 
 trade of Canada a direct interest in the ex- ; 
 elusion of the foreign article. These are j 
 some of the main features of the Canadian 
 Copyright Law of 1875, but they met with 
 no favour in the Downing-street of 1847. 
 
 In the despatch to the (iovprnor-(ieneral 
 \H enclosed the report to the Colonial Office 
 or the Board of Trade on the Canadi. \ct 
 just referred to. The report contftins the 
 following passages :-"lAioking to the cir- 
 " cumstances under which the Act (Impe- 
 " rial Act, 1847) was passed, their lordships 
 " are of opinion that the arrangement effect- 
 •' ed by it was in the nature of a compro- 
 •' mise between the claims of the colonists 
 " on the one hand and the rights of British 
 "authors on the other; the intention be- 
 " ing that the colonists should be allowed 
 " to supply themselves with the cheap 
 •'editions of British works which are re- 
 " produced in the United States, on the 
 " condition of making to the author some 
 " compensation for the injury intlicted on 
 " him by a gratuitous appropriation of his 
 " property, and it was on this understand- 
 " ing that the Act received the a^ssent of 
 " Parliament without encounteringopposition 
 " from the advocates of the rights of authors. 
 " The Acts which have been passed by the 
 "Legislatures ot xNova ScotiaandNew Bruns- 
 "wick are strictly in accordance with this un- 
 " derstan<ling, but the Canadian Act now 
 " under discussion is framed upon a totally 
 "different principle. Its effect, were it fol- 
 " lowed up by an Order-in-Council, would 
 "simply be to take away 'rom British 
 " authors, unless they republish in the 
 "colony, the protection which they now en- 
 "joy, without making them any compensa- 
 " tion for the injury. My Lords are there- 
 " fore of opinion that to issue such an Order 
 " flight expose the Government to a charge 
 " of breaking faith with the authors. They 
 " are the moro reluctant to recommend such 
 "a step being taken because they <io not 
 " perceive the justice of the distinction be- 
 " tween works printed and published in 
 "England only and works reprinted and 
 " published in Canada. So far an they hav< 
 "mea?w o/judifhiff, they are of o})iiiion that 
 ' an edition for the colonial market could 
 " be printed more cheapiif here than in 
 " Canada. To protect works reprinted there, 
 "and to leave others unprotected, would 
 "therefore fail to secure the advantages 
 '•^vhich are desired on all hands — namely, 
 cheap publications of a legitimate charac- 
 ter for the colonies, and the repression of 
 
 '< the illicit importations of pirated edition* 
 
 "Ml/ Lordx mm'il (jlndlij eo-op-rale in any 
 "nwaxiire that roitld he dei'iKid for nupply- 
 " in<) the rolnnien trith the. cheapeM. luorku, 
 "arid would see no objection to making the 
 " author's coi)yright det>end nptm his trans- 
 " mitting thcrii, could a plan for coniiudling 
 " him to do so be devised, but they do not 
 "think the obligation to reprint in the colony 
 "would have any tendency to effect this 
 "object." , „ 
 
 The paternal tone of "My Lords grates 
 strangely on Canadian ears to-day. 
 But 1.1 connection with our present discus- 
 sion, the contents of this report are vaUial)le 
 and important. The object of the Imperial 
 Act of 1847 was t» give cheap (foreign re-_ 
 printed) literature to the "colonists, 
 while ])roviding for the compensation' of the 
 British authors. Well, no Cana.lian pub- 
 lisher h.as ever asked for more than the 
 power to reprint cheap literature on con- 
 dition that a fair compensation was secured 
 to the British author. In tho next place, 
 what, " My Lords" failed to perceive in re- 
 gard to tlie reprinting and publishing in 
 Canada, as distinguished from printing ami 
 publishing in the United Kingdom, has been 
 perceived since and " crystallized into law. 
 Then, too, a powerful argument from the 
 Downing-atreet point of view apparently 
 was, that Canadians could not produce books 
 BO cheaply as they could import them. It is 
 no longer possible to hold that opinion, for 
 Canadians are able, as every-day experitnce 
 shows, to print editions of popular works 
 more cheaply than any sold either in (Jicat 
 Britain or the United States. Then, hnally, 
 wc have the assurance that " My Lords 
 would not only gladly co-operate with the 
 "colonists" in any measure for supplying 
 cheap literature, but even deal more or less 
 arbitrarily with the authors could they see 
 a practicable method of attaining the de- 
 sired end. If the Imperial Government 
 will only act now in the spirit of the 
 admissiima implied in their despatch ot 
 over thirty years ago, we shall soon see an 
 end to existing diiliculties.- 
 
 Some delay followed the refusal of the Im- 
 perial Government to sanction the Canadian 
 Act. Meantime, the impossibility of exclud- 
 ing American reprints, and the necessity of 
 obtaining a cheaper literature than the Bri- 
 tish market supplied, became daily more and 
 more obvious. Accordingly in 1850 an Act 
 was passed by the Canadian Legislature 
 (13 and 14 Vict., c. (5) providing for the col- 
 lection of an authors' tax on foreign reprints 
 of British copyright works coming into Ca- 
 nada, whenever the author or his representa- 
 tives register^ ■ Ir.s copyright with the Ca- 
 nadian Custo.. ■? authorities. The Act reads 
 
10 
 
 as follows :—" It shall be lawful for tho 
 " UoviTiior iu Council to impoMe upon Wnoks 
 "impi'i'ted into Canada, and being eopiea 
 " printed or reprinted iu any other country 
 " than the United Kingdom, of books Hrst 
 "composed or written, printed or published 
 " iu the United Kingdom, of which the copy- 
 " right aliall be still subsisting, and with re- 
 " gard to which the notice to the Cominis- 
 "aioner of Customs reijuired by any Act of 
 "tho Parliament of the United Kingdom in 
 " tliut behalf shall liave been given, an ad 
 " ailon III duty not exceeding twenty pet 
 "cent., and from time to time to establish 
 "sucli regulations aud conditions as may be 
 "consistent with any Act of the I'ar. lament 
 " of the United Kingdom then in force, as ho 
 " may deem retiuisite and equitable with re- 
 "gai(» to the admissaon of such books, aud to 
 " the distribution oi sucii duty to or among 
 "tlie parties benehcially iiiterestfid in the 
 " copyriglit, and such duty shall l)o collected 
 "iu like manner as duties of Customs, 
 "aud under tlie provisions of the Act 
 " relating to sucii duties." The duty 
 fixed by the Ordtr-inCouiicil under tlie 
 Act was 12J per cent, ad valorem. The Act 
 was approved by tiie Imperial (loveriiment, 
 an Imperial Oi\ler-iu Council was issued ac- 
 cordingly, and from that time forward 
 American reprints were virtually free of 
 the Canadian market. Iu ISCS it was extend- 
 ed to the whole Dominion. We shallallude on 
 auother occasion to tlie efi'oct of tiiis legis- 
 lation on tile book trade of Canada; but what 
 we have in this connection to point out is 
 how completely it overrode the Imperial 
 Copyright Law in the interest of a supply 
 of popular and cheap liteiature, and How 
 powerful an argument it atibrds lor remov- 
 ing every barrier in the way of that grand 
 desideratum. 
 
 CHAPTKR IV. 
 
 CANADIAN AND UNirEi) STATKS LOI'YRIGIIT 
 l.E(;j.SLATlo.N ( (IN TKA.Sl'ED. 
 
 In the British North America Act of 1867, 
 popularly known as the Confederation Act, 
 "copyright" was expressly mentioned as 
 one of the matters over wliicli the Parliament 
 of Canada was to have "exclusive leyisla- 
 *ivf authority." But this term has been 
 held to apply only to tlie relations of the 
 Doimniou to the several Provinces, and not 
 to suoeraede or abrogate the Imperial Copy- 
 right Act of 1842. The copyriu'ht legislation 
 of the new Parliament of Canada iu 1868 
 was, virtually, but a continuation of the laws 
 of the old Province. Meantime the book- 
 publishing trade of Canada was assuming very 
 extensive projiortions. and so the production 
 of Canadian printed works, ia foi a and price 
 
 calculated to supply the home demand and 
 to compete with foreign reprints, increased, 
 and the hardships of the situation became more 
 severely felt. It was urged, reasonably 
 enough, that ('anadian publishers should no"t 
 be placed at a disadvantage in regard to Ame- 
 rican competition ; that if pirated reprints of 
 British works were legally saleable in Ca- 
 nada on paying a small import duty, it was 
 no more than just that Canadian reprints, 
 on which Cana<iian publishers were willing 
 to pay the same duty, shouM also be legally 
 salealde. Accordingly, in 1872, the Hon- 
 ourable Senator Ryan, with the assent of 
 the (iovernment of that day, and with 
 the unanimous approval of both 
 Houses, carried a measure through the 
 Dominion Parliament authorizing Cana- 
 dian publishers to print and publish 
 British copyrighted works on giving bonds 
 securing to the authors or their assigns an 
 ad calorrm duty of 12^ percent. The ef- 
 fect of this Act would have been to put the 
 Canadian publisher on a precisely similar 
 footing with his American rival. 
 
 But the Act was undoubtedly nltra virc» 
 in the absence of express sanction by Impe- 
 rial legislation. The Act of 1847, under 
 which Canada had been authorized to admit 
 foreign reprints, applied to foreign repris.ts 
 alone, not to Colonial reprints. The Act of 
 1872 was, therefore, very properly reserved for 
 the siguihcation of Hei Al.ijesty'a pleasure. 
 Nothing more was heard of it until the two 
 years during which action might be taken 
 by the Imperial Government to give it va- 
 lidity had neariy expired. However, in the 
 session of 1874 an address to the Crown, 
 moved by Hon, Senator Ryan in the Uppe 
 House ami Mr. Dymoud. M.P. for North 
 York, in the Commons, was carried, praying 
 His Excellency the Governor-General " to 
 " be pleased to convey to Her Majesty's 
 "Principal Secretary of State for the Coio- 
 " iiies the expression of the respectful 
 " anxiety of this House that a Bill, intituled 
 " ' An Act to amend the Act respecting 
 " Copyrights,' passed in the session of 1872, 
 " and reserved on the 14th of June of that 
 " year for the signification of Her Majesty's 
 " pleasure thereon, should not be allowed 
 " to expire by the expiry of the two years' 
 " limitation specified m the i)7th section of the 
 " '■ British North America Act, 1867,' " aud 
 " further to assure His Excellency that im- 
 " portaut interests in this Dominion are 
 " prejudiced by the absence of legislation 
 " such as this Bill contemplates. " The result 
 was a correspondence between Lord Car- 
 narvon, the Colonial Secretary, and the 
 late Government of Canada, the views of 
 the Imperial Government being expressed 
 in a despatch from Lord Carnarvon to the 
 
 Q^" 
 
e demand and 
 ints, increased, 
 :m became more 
 3d. reasnnahly 
 liers shonld not 
 regard to Anie- 
 ated reprints of 
 laleable in Ca- 
 ■t duty, it was 
 idiau reprints, 
 I were willini; 
 
 also be legally 
 872, the Hon- 
 
 the assent of 
 ay, and with 
 of both 
 ) through the 
 01 izing Caua- 
 and publish 
 1 giving bonds 
 t'lr assigns an 
 leDt. The ef- 
 >een to put the 
 (jisely similar 
 il. 
 
 ily vltra vircx 
 bion by Impe- 
 1847, under 
 irized to admit 
 )reign repriutK 
 The Act of 
 ly reserved for 
 ty'a pleasure. 
 
 until the two 
 ight be taken 
 
 to give it Vii- 
 )wever, in the 
 
 the Crown, 
 
 1 in the Uppe 
 P. for North 
 
 irried, praying' 
 -General " to 
 Her Majesty's 
 3 for thu Colo- 
 he respectful 
 
 Bill, intituled 
 iCt respecting 
 Bssion of 1872, 
 
 Jnne of that 
 Her Majesty's 
 ot be allowed 
 he two years' 
 h section of the 
 t, 1867,'" and 
 ency tliatim- 
 )oniinion are 
 
 of legislation 
 s." The result 
 m Lord Car- 
 ry, and the 
 the views of 
 }g expressed 
 arvou to the 
 
 11 
 
 Governor-(reneral, dated June 15, 1874, in 
 which His Lordship argued— (I) That the 
 Act of 1872 was ultra vire», and admitted to 
 be so by the Privy Council of Canada ; and 
 (2) That even if the assent of the Crown were 
 ^iven, the Courts (the Act being idira vins) 
 would set it aside. At the same time Lord 
 Carnarvon expressed a hope that a measure 
 might be framed which, "while preserving 
 " the rights of the owners of copyright works 
 " in Great Britain under the Imperial Act, [ 
 " will give effect to the views of the Cana- 
 " dian Government and Parliament." The 
 result was the passing and ratilication, in 
 1875, by an Imperial Act, of the present 
 (Jopyright Act of Canada. 
 
 The Act of 1875 (38 Vict., c. 88, Canada) ^ 
 extended the privilege of obtaining copyright , 
 in Canada to "any person domiciled in Ca- - 
 " nada, or in any part of the British do- 
 " minions, or being a citizen of any country 
 " having an international copyright treaty 
 " with the United Kingdom." The only 
 further conditions exacted are, that the work 
 shall be registered at Ottawa ^nd printed and 
 published in Canada. By the 10th section 
 of the Act the author is enabled to secure j 
 an interim copyright extending over one 
 month, pending "the publication of the work 
 in Canada. This is to allow time for the 
 reprinting and publishing in Canada of a 
 work already published in Great Britain. 
 The Act has no force against British editions 
 of the work copyrighted, but excludes abso- 
 lutely all foreign reprints of British copy- 
 right works, when such works are copyright- 
 ed in Canada. It thus interferes, so far as the 
 works copyrighted in Canada are concerned, 
 with the Act of 1847, already frequently re- 
 ferred to as allowing foreign reprints to come 
 in on payment of an author's duty. As the Act 
 of 1847 'was an Imperial statute, au Imperial 
 Act v.'aa necessary to give effect to the Cana- 
 dian Act of 1875. This being passed, no 
 furtier changes have taken place in the 
 Canadian copyright law. 
 
 Let us see, then, what.as briefly summa- 
 rized, is the Law of Copyright/ affecting Ca- 
 nada at the present time. 
 
 1. Any person domiciled in any part of 
 the British dominions (including of course 
 Canada), ok in any country having interna- 
 tional copyright arrangements with the 
 United Kingdom, may obtain copyright in 
 Canada. 
 
 Every British author, and everybody en- 
 titled to copyright in the United Kingdom, 
 or anybody, even if a citizen of a country 
 not in copyright alliance, if only domiciled in 
 Canada, can have all the protection, in the 
 shape of copyright, Canadian law will af- 
 ford. Following the example of the mother 
 country, Canada attempts to perpetrate no 
 
 iiii'istice on a foreign author by taking what 
 he u?H to give without givinu Inui protection 
 in retUiU, if he will otdy accept her fair ana 
 liberal conditions, and. in the words ot l.orrt 
 Cairns.sokly "aims at increasing the common 
 "stock of the literature of the country 
 There can bo no pretence, then, on th«j 
 score of sellishncss or greed, or a spirit ot 
 monopoly on our part, for refuaiug to C anada 
 the right to legislate ind. peudently and 
 exclusively in matt ra of copynglit. 
 
 But we note further— (I) lu^t.by the ope- 
 ration of the Imperial Copyright Act ol IMl., 
 every person enjoyin.j copyright under Uvax. 
 Act cau not only disregard the iiivitiitu.n to 
 secure a local copyrigiit, but e:in luvoKe the 
 action of Canadian Courts to restrain or 
 punish the publication of any save tiie Bri- 
 tish copyrighted edition of hu work by any 
 one in Canaila. 
 
 (2) That, on tlie other iiai.d, fonngii re- 
 prints of tlie same British e.py righted work 
 may be imported mto and sold in t aii:ula 
 without lei or hindrance— it the author does 
 not take out a local copyright -on payment 
 of a duty of 12i per cent, ad mlorcni it he 
 regibters at llie Customs, or, il ho fails to re- 
 gister, men on payment only of the ordinary 
 Customs duty. , 
 
 As a matter of fact, this hxw has actually 
 been set in motion against Canadian publish- 
 ers for attempting to pul)liah a Canadian 
 edition of a British work, and that, too, by 
 British authors who, for a consideration, had 
 agreed to take out no copyright in Canada, 
 in order to allow an American edit ou to be 
 sold in Canada with impunity. , . - . , 
 
 Nor does the Copyright Law of the Lnitcd 
 States afford to the authors eithei of Great 
 Britain or Canada any compensatory advan- 
 tages for the lioeral treatment accorded l)oth 
 by the Dominion mid Great Britain to Ameri- 
 can citizens. The principle "t British and 
 Canadian Copyright Law is to pay honestly 
 for the privilege of acc|uiriiig tlic literary 
 works ot the autUors ot all nations; 
 the principle of American policy is to pay 
 for nothing iu the shape of foreign literature 
 it can steal. Great Britain and Canada give 
 
 protection to foreign autiiors ; the 
 
 U nited 
 states encourage literary piracy. A six 
 weeks' domicile— or less, lor that mat:,er~m 
 any part of the British dominions gives an 
 American citizen the title to copyright over 
 the whole liritish Empire, and wherever 
 Great Britain has international copyright 
 treaties or conventions. Acttuil citixiixlir.) or 
 permuiiKHt ri:Mdtncf. alone entitles an author 
 to copyright in the United States, Nor cau 
 the a^^signee of a work composed by a non- 
 resident — even although tlic assignee be 
 a citizen of the United .states— obtain copy- 
 right for such a work. Efforts have been 
 
12 
 
 made from tinio to time to imlunc the f!ov- 
 ernmont at \Vaahini,'ton to conRcnt to an 
 international cojiyriglit treaty with (Ireat 
 Britain. The authors of the "United States, 
 as a claas.are not ojipoaed t(/ .luoh an arrange- 
 ment. But the laryi^ ])uhlial,ing Hrms stand 
 hard by monopoly, and their influence in the 
 lobbies has been and is iikoly to be omnipo- 
 tent; aj;ainst them, forty millions of the great- 
 est reading and book-jmrehasing people in 
 ihe worlil are, apparently, powerless. To 
 the United States, hen, as a nation, neither 
 (ireat l'.ritain nor Canada— in the matter of 
 copyright— owes tlie smallest consideration. 
 Resolutely refusing fair play to the litera- 
 ture of (ireat Brit.iin, their dishonest appro- 
 priations of that literature are used to erusli 
 
 out and destroy the publishing enterprise of 
 Canada. 
 
 CHAPTER y. 
 
 T1[E NEW I1\H'EIUAI, fOJ'VKUaiT AfT. 
 
 Having traced the history of Copyright 
 legisl.ation in the United Kingdom and 
 Canada, and considered the principles by 
 which it has jiresumably been guided, we 
 have next to notice the new Imperial Copy- 
 right Act, which aw.'iits the judgment of the 
 British Parliament at a future session. The 
 Act has been introduced under the auspices 
 of Lord John Manners, Viscount Sandon, 
 .ind the Attorney.fieneral, and is, no doubt, 
 the upshot of the labours of the late Royal 
 ( 'om.rission on Coijyright. While the Act 
 contains some liberal concessions, vvhich we 
 shall notice presently, we do not hesitate to 
 Hay that, as regarda Canada, it perpetuates 
 an evil and unjust state of things. Like its 
 predecessor— the Act of 1842— its provisions 
 are made to extend over the whole British 
 dominions. It pays some respect, it is true, 
 to a Colonial copyright, but what in the 
 name of common sense has the Imperial 
 Parliament got to do with copyright in 
 Canarla at all ? For the Act of 1842, it might 
 be said that it was simply a relic of an old 
 and nearly defunct system of legislative 
 paternity on the part of Great Britain to- 
 wards her colonies. But to revive the same 
 obnoxious enactment at this time of day, 
 and give it to the world in the form of an 
 amended and consolid.i' ad copyright la -v. is a 
 usurpation and an outrage. 
 
 The new Act, for instance, provides as 
 follows, namely :—" That the author 
 "of a book Jirsf prihlixhrd In Her 
 •^' J\Mesty's dominions shall, whfther he is 
 " or >',•,• not a British mhjcct or domiciled or 
 •'^ res'dent in Hn- Majei^tii's dominions, he en- 
 'Hdii'd tocopiiriiiht in the hook throughout Her 
 " Mnjenfi/'s dominions." Noexception is made 
 in favour of any colony having its own copy- 
 
 right laws. This clause, in fact, directly 
 conHicts with the Copyright Uw of Canada- 
 1 he (Janadinn Act of 1875, in its 4th section. 
 rans as follows : — 
 
 " Ann permn domiciled in Canada or in any 
 " part of the British possessions, or being a 
 " citizen of any country having an interna- 
 " tiona' copyright treaty with the United 
 " Kingdom, who is the author of any book, 
 •' &c., shall have the sole right, &c." Sub- 
 section 2 of the same section makes the 
 printing and publishing of the work a condi- 
 tion of obtaining copyright. 
 
 Here, then, in Canada, for reasons per- 
 fectly intelligible, we make a distiuction 
 between the citizens of countries having in- 
 ternational treaties with Great Britain and 
 of those who have none. The meaning of 
 the clause in the Canadian Act is evidently 
 this : — Any British subject (who has not 
 expatriated himself), or any citizen of any 
 country having a corpyight treaty in 
 convention with Great Britain, may ob- 
 tain copyright in Canada v^fhont dumirfie. 
 But a citizen of a country not having any 
 copyright relations with Canada must he 
 domiciled here to secure copyright. 
 
 That is the law of Canada, expressly sane- 
 tioned by Imperial authority. But now 
 comes an Imperial Act which says in effect 
 that an yhodii,xnh ether domiciled in Canada or 
 not, may obtain copyright in Canada and 
 every other of the British possessions. 
 
 Let it not be said that this is of no prac- 
 tical importance. Canada,a3 being especial- 
 ly affected by her relation* to the United 
 States, has to consider,and must be entitled 
 to consider, for herself, what shall be her 
 attitude towards that country. She may 
 find it to her advanta»e to say to the Ameri- 
 can author, "Only print and publish in 
 " Canada, and, domicile ar no domicile, we 
 " will give you or your assigns a copyright 
 " for the Dominion for your Canadian edi- 
 " tion exclusively." Or it maybe in the in- 
 terest of Canada to say, "As you give no 
 " copyright tc our authors, we will give 
 " none to yours ; as you choose to rep t 
 " Canadian books without scruple, we -< -il 
 " reprint American books without scruple, 
 " and afford their authors no protection." 
 There is something to be said from the 
 Canadian point of view in favour of either 
 proposition, but the choice to be made is a 
 question of Canadian public policy, and of 
 Canadian public policy solely. But the new 
 Imperial Act overrides our discretion and 
 judgment, makes nothing of our special and 
 local reasons for adopting one policy or the 
 other, and arrogantly intrudes its own dic- 
 tum as to who shall or shall not, in 
 this Dominion, secure copyright. The 
 Act makes some change in the period of 
 
fact, directly 
 iw of Canada- 
 8 4th section. 
 
 ladaor in any 
 18, or being a 
 g an intnrna- 
 h tho United 
 of any book, 
 t, &c." Sub- 
 m makes the 
 work a condi- 
 
 reaaona per- 
 a diBtinction 
 68 having in- 
 t Britain and 
 le meaninE; of 
 b ia evidently 
 who has not 
 itizen of any 
 t treaty in 
 in, may oh- 
 hoitt (Jiimirijr. 
 t having any 
 lada mimt he 
 [ht. 
 
 cpresaly sane- 
 ^, But now 
 says in effect 
 in Canada or 
 Canada and 
 Bsions. 
 
 8 of no prac- 
 Bing especial- 
 
 the United 
 it be entitled 
 shall be her 
 She may 
 lO the Ameri- 
 d publish in 
 iomicile, we 
 a copyright 
 inadian cdi- 
 be in the in- 
 I you give no 
 re will give 
 e to rep t 
 iple, we -. Al 
 lOut scruple, 
 protection." 
 rl from the 
 ur of either 
 )e made is a 
 licy, and of 
 But the new 
 icretion and 
 p special and 
 jolicy or the 
 its own die- 
 all not, in 
 ight. The 
 le period of 
 
 13 
 
 time for which copyright may be granted ; ] | 
 but with that, as it is a matter of deUU ; 
 only, and not of principle, so far as Cana- 
 dian riglits are concerned, we nceu now 
 say nothing. 
 
 We now come to what may be termed the 
 Colonial clauses of the Act. Here au at- 
 tempt is made to conciliate Colonial interests. 
 The Act provides in substance — 
 
 " Where a local law in any British 
 " possession provides for registration (as in 
 " Canada), such registration shall secure 
 " copyright under this (Imperial) law. 
 " Such Colonial registers shall be returned 
 " to the Home Registrar, and he shall also 
 " supply to the Colonial Government re- 
 " turns of copyrights registered in Canada 
 " or other British possessions." 
 
 That is to say— as we understand it— 
 that a Canadian author taking out a copy- 
 right under the Canadian law, thereby, 
 ipso /ado, secures copyright throughout the 
 British dominions. So far so good. But 
 then we come to the following proviso :— 
 
 " Where a book is lirst published in a 
 " British possession, and not published in 
 " the United Kingdom, in number and inan- 
 " ner suitable for general circulation therein, 
 " after one month from lirst publication 
 " any person may applj' to Her Majesty in 
 " Council for a judicial license to publish 
 " the same which may be granted upon 
 " such conditions as seem just; and if any 
 " book is not so published within six months 
 " after first publication, any person may ap- 
 " ply to Her Majesty in Council to be allow- 
 " ed to imoort foreign reprints of the 
 " book." 
 
 That ia to say, if a Canadian author 
 does not incline to publish an edition 
 of his work precisely suitable for the British 
 market, then, some Imperial official being 
 judge of the viitahilit!/ of the original work 
 lor the said British market or otherwise, a 
 license to publish on conditions, or to import 
 foreign reprints, will be granted to any ap- 
 plicant. Then comes a clause which we as- 
 sume to be intended as couipensatory or 
 giving reciprocal privileges for the foregoing 
 one. It reads in effect as follows : — 
 
 " Where any British possession has made 
 " effectual and reasonable provision for ends 
 " similar tp those of this Act, including the 
 " collection of percentage on books republish- 
 " cd or imported nnder license, Her Majesty 
 " may direct, as regards that possession, in 
 " the case of a book first published out of 
 " that possession, and entitled to copyright 
 " therein, that within a reasonable time and 
 " under similar conditions as above.any per- 
 " son may applytoa Court to bedesignute iin 
 " the possession forasimilar license to publish, 
 "the orders of such Court being subject to 
 
 " Her Majesty in Council, (or the Governor 
 " in Council). If tiie buok is not published 
 " in that possession within six months from 
 " lirst publication, any person may apply to 
 " such Court for ft license to import." 
 
 Now, we first notice here that Canada has 
 no power to legislate for the oUection of a 
 percentage on works repnbiiKliod in Cunada. 
 Iler pdweis go no further, unless this Act 
 confers them by implication, than 
 to collect a percentage on fi.roign 
 reprints iinporfvd. I'.ut that is proliably 
 a mere oversight. \Vhat we have, iu)W 
 ever, to complain of in tliis apiiarently 
 liberal fiature in tho Act is, that what may 
 be done I'u Cainula, hii Camulhui piiliUihtri* 
 ami under the naintioii of Ciliindian 
 C'o//r^1, ia to be decided i)y a British Act of 
 rarlianient in the passing of which Cana- 
 dians have no voice, instead of Canad.i being 
 granted those rights to which, as a self- 
 i;overniug '^umnuuiity, sh»i is entitled, and 
 possesses in connection with every other 
 feature of dtuiiestic legislation. Another 
 clause reads, in substance, as follows : — 
 
 " Where it appears to Her Majesty 
 " in Council that.having regard to the posi- 
 ■' tion, size, or the ciicumstauces of any 
 " British posses^iion, foreign reprints ought 
 " to be admitted at once. Her Majesty in 
 " Council may direct, under conditiona 
 " similar to above, that any person may im- 
 " iiort copies of foreign reprints of any 
 "{book." 
 
 We do not suppose that this clause would 
 ever be put in force as regards Canada. It 
 IS rather, probably, intended to meet the 
 case of certain otlu-r smaller colonies ; but 
 that such a clause should, by any possibility, 
 be made to afl'ect a colony governed as 
 Canada is, is another reason why Canada 
 should claim to be emancipateil from the 
 thraldom of Imperial copyiiglit legislation. 
 Whether wo will aiiniit foreij^n leprints at 
 all, or whether we will exclude tliem, is a 
 purely domestic (juestion Canada should bo 
 left to decide lor herself. Wlnle thus 
 referring to this measure as a bad precedent, 
 and higlily cd)jectionable in several respects, 
 we have no doubt it has been prepared with 
 exceciliui^'ly good intentions, and a desire to 
 act e(|uit:d)ly towards the people of Britain's 
 colonial ijotisessioiis. But, as regards Cana- 
 da, the attempt to legislate at all is radi- 
 cally wrong, except it be to give her what 
 can only be withheld by injustice — namely, 
 control of her own copyright laws. It is 
 true tliat Canadian interests were supposed 
 to be represented on the late Uoyal Commis- 
 4oii, but we never heard that either tho 
 authors or publishers of the Dominion, or 
 any one representing them, were asked to 
 ' give evidence before the Commissioners. 
 
14 
 
 lV()l).ii)lv tho Act (.f IS7') wnH lor.knd iJ)mn as 
 hiiviiinsuttloil itil ooiitrovcr.si'.H h iti^factdrily. 
 and it waa supposed that any conces- 
 sions in tlie new Act wouM lie regarded as 
 favours i;rttciouHly and voluntarily accorded. 
 But wh.itwo wuiit is- not favours, but -our 
 rij;ht8. 
 
 CHAITEI; VI, i 
 
 A CONSTITUTIONAL t/l^KHTl'JN.'li 
 
 The ()Ue8tion now to he answered is : 
 Why nhoiiM ex(dn.sive jurisdiction in tiie 
 matter of copyrij^lit bo witlilitdd troni a 
 pe.pplc entrusted with tho duty and privi- 
 lege of aelf-xoveriiinent ? We have entire 
 control over all that concerns our commerce 
 or education. W'v can say— as allectnif^ the 
 public morals — what books shall or shall 
 not be imported into (Canada? We can im- 
 pose what duty we please on imported lite-a- 
 lure, lu the strictly analogous case ol tlie 
 patent laws, we may and do legislate forour- 
 ^elves, independently and exclusively. 
 IJoth patents and copyrights are properly 
 hubjoets for ])urely domestic legislation ; 
 but while, by the Act of 1814, and subHe- 
 ([Uently by the Act of 1S4'J, and when there 
 was pr.actically no local book trade iu 
 Canaila, it pleased the Imperial Parliament 
 to enact that the Copyrii^ht Act should ex- 
 tend over the wholeof the British dominions, 
 iu 1S.")2, when the Patent Act was passed 
 (lo and l(i Vict., c. S.S), tho principles of 
 colonial Helf-;,'oveninient were far better ni>- 
 derstooil, the progress of inventive industry 
 HI liiitish North America was considerable, 
 and no one dreamed of interfering with it 
 by Imntrial legislation. The presumption, 
 linn, fore, istl.at,had tlie Imju-rial Copyright 
 Act i)eeu framed for the lirst time in 1852, 
 it Would, like the Patent Act, have been 
 iiniitc<l to tile United Kingdom and posses- 
 sions in JJurope. Hut it so, where ia the 
 justice of refusing the change as regards 
 copyright demanded by times and circuni- 
 stunci's, and especially iu re-enacting 
 in elleot, the same obnoxious law? 
 The interference of the British Parliament 
 with the rights of t'auada to k-j>islate in re- 
 sptct of copyright generally aiul a'Dsoliuely, 
 is at variance vith th'j whole -scope and 
 tenor of the British Nort h Ain(;rica Act, and 
 of the self governing ]jowtrs which she is 
 entitled thereuinier to e;ijoy. 
 
 It cannot be said, (ather, that the British 
 author will be injured l)y such a couci ssiou 
 as is demanded. He will probably be the 
 gainer, because — (1) Canada offers him all he 
 can ask in the shape of protection ; (2) be- 
 cause it is his interest to have his work rve- 
 sented to the public in a form and at a price 
 nited to the local market ; and {'i) because. 
 
 author does not 
 by copyright in 
 being simple and 
 case, residence not 
 what possible right 
 to any protection at all 
 seen he does not get copyright 
 
 I by enioiir.aging a book entPfiiriso in Canada, 
 
 a succffMfiful cheek is imposed on the publiea- 
 
 I tion and sale in British territory of reprints 
 
 I of the pintnd works of British authors. The 
 
 ' only authors who may bo disposed to resist 
 
 thechanire arc a very few, who, being highly 
 
 : popular and iniluontial. can (ronunaud large 
 
 bonuses for advance sheets from American 
 
 I publiahern, and. perhaps, secure an extra sum 
 
 on condition that they do not take out a 
 
 I Canadian copyright. With such bargains 
 
 ! neither Imperial nor ('olonial legislation 
 
 I should exhibit the least sympathy. They 
 
 simply represent a league with soltiahness, 
 
 , piracy and dishonesty. 
 
 Again, if the British 
 1 (dioose to protect his work 
 < "anaila, the machinevy 
 inexpensive (and, in his 
 being nei;essary). 
 
 has he to anv iirotection iit all ' 
 We have 
 
 in Kngland in his own right. He does not 
 secure it as a British subject. He 
 has no inherent right to it whatsoever. He 
 has it under a statute alone, the very arbi- 
 trary character of which has been fully ex- 
 plained. He has it, too, mlt'ly in the puhc 
 intvrtst. Now, nothing is more certain than 
 that the public interest will be different as 
 respects literature in different countries. 
 Yet here is an Act of Parliament that pre- 
 tends to give a Copyright Law for countries, 
 all, it is true, iiniler one flag, but wide a 
 the poles asunder in their social and loca' 
 conditions. It is on the people of these 
 widely separated regions a municipal law is 
 forced, which — for all it cares for authors' 
 personal rights — might be repealed to-mor- 
 row if the public interest demanded that 
 step. The withholding of self-government, 
 then, to Canada iu the matter of copyright 
 is perf.ctly monstrous. 
 
 The injustice is all the greater when it ie 
 seen that, not only British subjects but 
 foreigners are g.^aranteed the free run of the 
 Dominion by the Imperial Act, that 
 foiciu'ii reprints and British works have been 
 admitted into Canada for thirty years by 
 Imperial legislation, and that they may bn 
 admitted if the new law passes by a simple 
 Order in Council. 
 
 Ttie evasions of the Imperial Copyright 
 Law, at times attempted, have only served to 
 illustrate more forcibly its anomalies and 
 absurdities. A Canadian publisher has, ere 
 now. transferred his types and plant to some 
 point in American territory readily acces- 
 sible from his place of business, printed the 
 sheets of a British copyright work there, 
 imported them as an American reprint, pay- 
 ing the author's tax, into Canada, and sold 
 them at a good profit. In another case the 
 
IS 
 
 10 ill Canada, 
 I the publica- 
 •y of reprints 
 autliorg. The 
 >ae(l to resist 
 
 beinfj highly 
 niiiiaud large 
 nn American 
 an extra sum 
 ot take out a 
 ich tinrgains 
 
 11 legislation 
 )athy. They 
 
 I suUiahnesH, 
 
 lor does not 
 
 copyright in 
 
 simple and 
 
 residence not 
 
 isible right 
 
 II at all ? 
 ;et copyright 
 
 He does not 
 ubject. He 
 soever. He 
 o very arbi- 
 )een fully ex- 
 
 iii the pubc 
 
 certain than 
 ditl'erent as 
 t countries, 
 eut that pre- 
 ;or countries, 
 but wide a 
 al and loca' 
 pie of these 
 licipal law is 
 
 for authors' 
 aled to-mor- 
 manded that 
 -government, 
 
 of copyright 
 
 ir when it is 
 subjects but 
 •ee run of the 
 Act, that 
 ks have been 
 irty years by 
 they may bn 
 8 by a simple 
 
 il Copyright 
 inly served to 
 lomalies and 
 isher has, ere 
 3lant to some 
 sadily ucces- 
 I, printed the 
 work there, 
 reprint, pay- 
 .da, and sold 
 ther case the 
 
 types ivere set up in Canada, stereotype 
 (tiateseast and sent to Detroit, paying duty 
 there, the book was printed in Detroit, and 
 then, as in the other instance, imported into 
 Canada as a reprint. In the latter case the 
 ('auadian publisher was but giving the Bri- 
 tish author and his confederate publisher m 
 New York " a Itolimd foran Oliver." Their 
 joint bargain was, that the author would, 
 in return for a handsome additional pay- 
 ment, takeout no copyright in Canada, nut, 
 by the ?'H«e of the Canadian publisher, an 
 editicm wan placed on the American market, 
 where the book had no legal protection, and 
 was at the same time selling, without payirg 
 one cent to the author, in Cana<la as a 
 foreign reprint. Having cot his compensa- 
 tion in New York, the author did not, of 
 course, register the work for authors' duty 
 in Canada. As a rule, however, Canadian 
 uublishers submit to the Impcriallawwith all 
 its oppressiveness, and on very few occasions 
 has the ("opyright Act of (ireat Britain been 
 violated by Canadians. 
 
 By the decisions of judges we have 
 t|uoted, by tlio coirespondeucc between the 
 two Governments in 1H4(), and by the whole 
 scope and tenor of British copyright legisla- 
 tion, the one desideratum of such laws is 
 to give the people an ample supply of litera- 
 ture. It is notorious that, while, for costly 
 works, (ireat Britain must for a long time to 
 come retain the Canadian market, she can- 
 not and does not supply a class of books 
 the bulk of the people can att'ord to 
 l)uy. That was the main reason why, in 
 1847, it was found necessary to admit the 
 American reprints, at that time nearly theonly 
 cheap literature on this continent. It was 
 the supposed inability of Canada to produce 
 a cheap literature of her own that was the 
 chief cause of what was, virtually, exclusive 
 jurisdiction Ixn.ig denied her thirty years 
 ago. Now, wliile importing her more costly 
 books from England, Canada can produce 
 cheap literature that will even compete with 
 that of the States. \Yhy then does she not 
 have the powers she asks ? The answer is, 
 that, just as in the United States the great 
 publishing firms have resisted from seltish 
 motives, an International Copyright I-aw, so 
 111 Great Britain have the great publishing 
 firms hitherto insisted on having a monopoly 
 of book printing and book publishing in the 
 wholi? Britii^k empire. And successive 
 
 British Governments, false to their professed 
 anti-trade monopoly principles, have allowo i 
 thriiisylves to be inlluonced liy Paternoster 
 Bow. For reasons already pointed out, and 
 owing to her geographical position, Canada 
 has more reason to complain of this State of 
 things than other colonies. We whall see 
 now whether a Canadian Government pro- 
 fessing to uphold a thoroughly national 
 policy will be true to Canada's interests in 
 this reL'ard. It should be one of the very tirst 
 duties of Sir A. T. Gait, as Canadian Com- 
 niisxioner in London, to bring seriously be- 
 fore the Imperial (Joveriinicnt the objections 
 to the proposed new Copyriglit law, and to 
 urga the opportunity a discussion of the 
 subject affords as a reason for now setting 
 this (luestion at rest forei-er. 
 
 Die propositions wo should regard as a fair 
 basis of settlement by Canadiaii legislation 
 would lie : - 
 
 ( 1 )That Canada should accord toallauthors 
 domiciled in the British pos8essions,orre8ident 
 in any country granting to her (Canada) reci- 
 procr-1 privileges, the right to copyright in 
 Canada, (ui con<'ition of printing and publish- 
 ing the work in the Dominion. 
 
 (U.) That no work should be entitled 1o 
 copyri_t;ht in Canada unless printed and puli- 
 lished in Canada. 
 
 (3.) That no person failing to take out a 
 copyright in Canada within a limitedpcriod 
 -—say one month from the date of pui>- 
 licatii.ii elsewhere— should be entitled to 
 copyripht in Canada. But, 
 
 (4.) That, in consideration of reciprocal 
 privileges being granted by any other country 
 to Canadian author.s, or their assigns, 
 subjects of such country slwdl be entitled 
 to a percentage to be paid (under bond) on 
 any edition of their works republished in 
 Canada, 
 
 Wobdieve that if the principle embodied 
 in the foregoing propositions were adopted 
 no wrong would be done to the British 
 author ; that the book trade of Cana.'a 
 would receive an immense impetus ; th^t 
 Canadians wouhl be supplied with all tl-.e 
 cheap literature they rtijUiied ; and tliat, by 
 the effect of ' anadian competition on this 
 c«nt;nent, Anurican publishers would be 
 greatly influenced in favour of a more liberal 
 Cojiyright Law than they are now i rtpared 
 to submit to. 
 
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