UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 %. 

 
 A MANUAL OF 
 MUSICAL COPYRIGHT LAW.
 
 A MANUAL OF MUSICAL 
 COPYRIGHT LAW. 
 
 FOR THE USE OF 
 
 MUSU I^TBLISHERS AND AHTIS'IX 
 
 AND OF 
 
 1HK \M}A\. IMU)FBSSION. 
 
 BY 
 
 EDWARD CUTLER 
 
 One of His Majesty' fi Counsel. 
 
 PKIN. MARSHALL. HAMILTON, KENT & CO., Ltd. 
 
 1 90.^5.
 
 T 
 
 V*V
 
 a 
 
 ft 
 
 U. 
 
 h 
 
 TO 
 
 THE HON. SIE CHARLES SWINFEN EADY, 
 
 ONK OF HIS majesty's JUDGES IN THE CHANCBKY DIVI8I0K 
 
 OF THK HIGH COUKT. 
 
 IN MBMOKY OF 
 
 MUCH SYMPATHETIC INTtiUCOURSE 
 
 AT THE BAR. 
 
 nq am
 
 PREFACE. 
 
 A TREATISE Oil iiiusical copyright, combining the results 
 of a refined musical training with those of a legal one, is, 
 the author believes, without precedent, or nearly so ; the 
 fact that his antecedents enable him to realise this com- 
 bination was brought to his notice by several influential 
 musical publishers and induced him to commit his prac- 
 tical experiences to paper. 
 
 It was pointed out that one who is exclusively a lawyer 
 wants the personal contact with the publishing trade, 
 which is necessary for explaining and adjusting the legal 
 rights and obligations of composers, executants and pub- 
 lishers of music, both as between themselves and as 
 between either of those three classes and the public. 
 Such an one may easily overlook, or not quite grapple 
 with, an infinity of subtle points likely to arise in busi- 
 ness. He is not practically familiar with those niceties of 
 trade which are only acquired by a series of personal 
 dealings with music publishers, British and foreign, during 
 many years. Not having the habit of closely analysing 
 and dissecting melodic phrases, and relying merely on an 
 untutored ear, he overlooks details of importance, with the 
 result that he sees resemblances where the whole phrase, 
 studied in its entirety, shows that none really exist ; 
 again, there are cases where the cultured musicmn would 
 scent out an origin, common both to a supposed piratical 
 copy of a given theme and to the theme itself ; and the 
 family likeness may be sufficiently definite to take away 
 the right to complain of an infringement, but the mere 
 lawyer, in such cases, might be misled into advising an 
 action by the close similarity between the original phrase 
 and the copy. 
 
 The author desires, partly by statement, and partly by 
 concrete examples, to put composers and their publisher 
 on their guard against these and similar mistakes ; and
 
 Vin. PEEFACE 
 
 though he cannot deal with facts which have not arisen, 
 he hopes, by suggestions as to what may arise, to inspire 
 caution. 
 
 There are many themes of which an expert would at 
 once say that they have probably occurred before the 
 present time, though he may have never before heard or 
 seen the actual notes, and only comes to a conclusion 
 from simplicity of structure or other internal evidence. 
 
 In such a case anj^ legal proceedings, even against a 
 person who has reproduced a motive note for note, should 
 be advised with great hesitation. This is no imaginary 
 combination of cuxumstances, and has occurred in many 
 cases within the author's experience. He was consulted 
 by a publisher as to suing in respect of a popular tune of 
 the day, over which the latter claimed copyright and 
 which was reproduced notatim in a musical comedy. 
 The author at once pointed out that the melody consisted 
 mainly of broken chords ; that the phrase was one which 
 readily fell under the hand on a pianoforte, and that these 
 facts pointed with great probability to a previous stage 
 of existence. Eelying on the boldness of the copyist's 
 imitation, the publisher persisted in bringing an action, 
 in the course of which, experts, consulted by the defen- 
 dant, traced a transmigration through several stages from 
 a serious cantata twenty years old, where the exact 
 phrase (four or five bars) occurred, though in a different 
 time and with a totally different sentiment. Needless to 
 say the action failed. 
 
 The author earnestly hopes by dealing with this sort of 
 question, in addition to those purely legal ones, some of 
 which have often before been discussed, to add a new 
 quota to the large stock of copyright-lore already existing. 
 
 His familiarity with this branch of the subject is founded 
 on considerable practice as Counsel in the law courts ; 
 he has also had experience in drafting copyright statutes, 
 and reporting on one very important one for the Board of 
 Trade ; and he has the satisfaction of being able to say 
 that a bill which was framed by him contained a clause 
 dealing with the two points on which the success of the 
 street pirates has turned, viz. : he inserted words (1) 
 empowering magistrates to act ex parte ; and (2) making 
 it a penal offence to sell piratical copies under the circum- 
 stances which have ruined hundreds of honest tradesmen, 
 and brought British administration of justice into con-
 
 PREFACE IX. 
 
 tempt. His salutary provision was, however, eviscerated 
 and rendered useless, as though on purpose to pour ill- 
 gotten riches into the pockets of shameless thieves. 
 
 He wishes to discharge a debt of gratitude by cordially 
 thanking for able and invaluable assistance in the pre- 
 paration of this treatise, Mr. C. A. Bennett of the Chan- 
 cery Bar, and Mr. Henry Clayton, also a Member of the 
 Bar, and of the Copyright Association, but now a partner 
 in one of the largest London firms of publishers.* This 
 little work has materially gained by many hours of dis- 
 cussion with these gentlemen, and by many suggestions 
 made by them, and acted upon by the author. 
 
 Up to a certain point of time he profited largely by 
 the assistance of Mr. Frederick Daldy, especially m that 
 part of this treatise which deals with Canada. Mr. Daldy 
 had a thorough knowledge of our relations with the 
 Dominion in the matter of copyright, and in addition to 
 a keen intellect, had had the advantage of twice making 
 the voyage to Montreal, Toronto and Quebec for the 
 purpose of discussing the burning questions between 
 Canada and the Mother Country, which have hung up 
 and delayed the settlement (by a codification bill long 
 since prepared) of the whole subject of British copyright. 
 Mr. Daldy's lamented death, when this work was only 
 partly written, cut short the intercourse between him and 
 the author, who lost at once a sagacious adviser and a 
 sympathetic friend. 
 
 The Copyright Association with their head, Mr. John 
 Murray, and their secretary, Mr. Sharon Turner, also 
 deserve the author's thanks for facilitating his access to 
 the collection of Colonial statues, with Mr. Daldy's 
 preface, dated in the year 1889, and printed for the 
 Association. 
 
 In conclusion he has also to thank Mr. Copinger, 
 whose work, a masterpiece of compendious arrangement, 
 constitutes a copyright library in itself. The author has 
 freely consulted, and, within the limits of fair usage, once 
 or twice cited passages from this work, and has greatly 
 profited by the learned writer's statements of law, 
 and vigorous arguments, even where he differs from them. 
 
 * Mr. Clayton has with his own pen contributed useful matter, 
 founded on practical knowledge, in the chapter on Amei'ica.
 
 XI, 
 
 CONTENTS. 
 
 Indkx of Cases ani> of Statutes ... ... ... ... x\i. 
 
 CHAPTER I. 
 
 l-AOK 
 
 (1) Enemies of monopoly of bi-ain-procluct. (2) Apology for 
 copyi-ight. (3) Historical sketch. (4) llemedy in respect 
 of unpublished works, perpetual. (5) Statutory origin : 
 Talfourd's Act. (6) Term in a published work. (7) Some 
 unpublished works comprised in statutory remedies. (8) 
 Literary copyright not dealt with in this work. (9) Statu- 
 tory performing right. (10) International rights. (11) 
 Macliinery in respect of reciprocal rights. (12) The Inter 
 national Copyright Act, 1886. (13) Rights thereunder. ... 1 — '• 
 
 CHAPTER II. 
 
 (1 ) Publication, a voluntary act, not enforced upon an author. 
 (2) Police protection for a MS. (3) Continental procedure ; 
 Reissiger's A flat Mass. (4) Protection only granted where 
 first publication in British dominions, except by conven- 
 tions. (5) Assignment. (6) Writing necessary : what is 
 the proper stamp. (7) Devolution on bankruptcy. (8) 
 Passing off under a piratical title : remedies. (9) Ground 
 of jurisdiction. (10) Joint authors. ... ... ... (i — 10 
 
 CHAPTER III. 
 
 (1) What is publication : Prince Albert versus Strange. (2) 
 Short reference to term (already stated in Chap. I.). 
 (3) Posthumous works. (4) Abandonment of copyright by 
 deed, &c. (5) Joint, and plurality of. Authors ; question 
 of duration of term in such cases : different from question 
 of property in term : must all authors sue jointly : Voyage 
 en Suisse. (6) Assignment of copyright will not pass per- 
 forming right. (7) Where publication must occur to confer 
 light : simultaneous publication. Whether first perform- 
 ance abroad destroys copyright here. (8) Foreigners 
 whether entitled to copyright. Residence here whether 
 necessary. Routlcdge versus Low. (9) Place where music 
 composed or printed, whether material under Section 3 of 
 Copyright Amendment Act, 1842. Under Section 17.
 
 Xll. CONTENTS 
 
 PAGE 
 
 (10) Ai-ea of protection. (11) Assignment bow effected : 
 by writing : by entry on register. Wbat stamp necessary. 
 (12) Registration not necessary unless action brougbt. (13) 
 Copyright divisible : qua locality : qua shares : qua time : 
 qua form of publication. (14) License is not assignment : 
 whether licensee can be a good plaintiff against an infringe- 
 ment. (15) Whether a royalty runs with the copyright — 
 qua burden — qua benefit. (16) Registration cannot pre- 
 cede publication : particulars to be entered : discrepancy 
 between section of statute and schedule : forms must be 
 rigorously followed : who is publisher for purposes of entry. 
 (17) New editions how registered. (18) Expression marks : 
 "La Frileuse" of Heller; how registered. (19) Remedy 
 for faulty registration, if any. (20) Copyright in titles : 
 Dick versus Yates. (21) What is a "sheet of music": 
 Boosey versus Whight. (22) Foreign law as to mechanical 
 instruments. (23) Instrumental scores, lawfully made, are 
 protected agamst piracy : arrangements : adaptations : 
 expression marks. '* La Frileuse.''' ... ... ... 11 — 32 
 
 CHAPTER IV. 
 
 (1) Copyright how defined. (2) Ignorance, whether a defence : 
 selling copies of a pirated work without knowledge of 
 piracy. (3) Fortuitous resemblances. (4) What is a copy. 
 The ^oHan. Boosey versus Whight. (5) Application of 
 the principle in Boosey versus Whight to the Tonic Sol-fa 
 notation. (6) Is one copy an infringement. (7) The 
 "Little Lord Fauntleroy" case. (8) Phatical rectors and 
 choir masters : chants and hymns thought fair game. (9) 
 Copying on black-boards in village schools. (10) Trans- 
 position, an infringement. (11) Quantum : proportion of 
 pirated matter, (a) to the original work as a whole, (6) to 
 the pirate's work as a whole. (12) Value of more import- 
 ance than quantity in judging of an infringement : does 
 not depend upon a certam fixed number of bars being 
 taken. (13) Passages taken from a common source : — some 
 common-form phrases used by the classical masters would 
 not be protected. Handel an unscrupulous, though bene- 
 ficent, pu-ate. (14) Sometimes a phrase of two bars or even 
 less, is so marked in character as to be protected : the 
 first two bars in Beethoven's C Mnior Symphony. (15) 
 The subject of Bach's E Major Fugue, Bk. 2 of the WoM- 
 temjJerirtes Clavier, not original. (16) " Part not particle " : 
 the " Wandering Jew " case : though the case of a drama, 
 applies in principle to music. (17) Colourable alterations, 
 an aggravation. (18) What is identity. (19) " Marguerita," 
 an air so loosely constructed that protection would be 
 difficult. (20) Instances of scale and arpeggio motives 
 which, though copied would be dangerous subjects of an 
 action for infringement. (21) Badges of piracy; copying 
 errors, (22) D'Almaine versus Boosey. Disguise by change 
 of purpose and general character no defence if the ear can
 
 CONTENTS XI 11. 
 
 trace the theme through the disguise. (23) Mendelssohn's 
 Lied in A Major in fancy dress. (24) Fair criticism allowed, 
 but in other cases pious motive no defence. Novello versus 
 Sudlow. (25) Mutilation restrained. Gilbert versus Boosey : 
 " Pianista." (26) Analogous case in literature of transla- 
 tions. (27) Street pirates. (28) How this form of robbery 
 is carried on. (29) Playing or singing copyright nmsic is 
 no infringement of copyright, though it may come under 
 the head of another form of protection : see Chapter V., on 
 performing right. (80) EiTcct of performance abroad on 
 copyright here. (31) Practical hints to a young composer 
 whose work is pirated. (32) As to moving ex parte. (33) 
 Limitation of time for suing. (34) Section 23 of the Copy- 
 right Amendment Act, 1842. (35) Sections 15 and 17 con- 
 sidered. (36) Customs ConsoHdation Act, 1876, Sections 
 42, 44 and 45. (37) The penalties enacted by Sections 15 
 and 17 of the Copyright Amendment Act, 1842, not exhaus- 
 tive, and do not exclude the remedy by injunction. (38) 
 Question of guilty knowledge. (39) Sections 2 and 3 of 
 Copyright Amendment Act, 1842. Offences and remedies 
 in tabular form. (40) Sections 15 and 17. Offences and 
 remedies in tabular form. 33 — 57 
 
 CHAPTER V. 
 
 (1) Definition of performing right simpliciter not wanted. (2) 
 In the case of unpublished work, it differs from copyright 
 both as to its birth and death. (3) Origin of right : whether 
 perpetual till performance. (4) When and how the right is 
 cut down to a term. (5) First performance liere does not 
 aOect copyright liere : nor does first performance abroad 
 do so. (6) First publication ; effect of, on performing right. 
 (7) Section 19 of the International Copyright Act, 1814, 
 considered. Meaning of pubHcation. (8) " The Colleen 
 ]3awn " case. (9) Boucicault versus Chatterton. (10) 
 "Whether performance of music must be in " a place of 
 dramatic entertainment " to entitle the author to sue. (11) 
 What is a public performance within the Statute. (12) 
 Copyright (musical compositions) Act, 1882. (13) Copyright 
 (musical compositions) Act, 1888. (14) Lessees and others, 
 if liable for piratical performance. (15) Improvisations. 
 (IG) Registration before suing, to protect performing right. 
 (17) Arguments against the necessity of this step. (18) 
 Clark versus Bishop. (19) Assignment of pcrforining right. 
 (20) Assignment of performing right, will not pass copy- 
 right. (21) " Part versus particle " qua performing right. 
 (22) Tabular form of rights and remedies 58- 
 
 CHAPTER YI. 
 
 (1) Extra-territorial copyright, purely a creation of Statute. 
 International Copyright, 1844. (2) Works allowed to lapse 
 for want of registration. (3) Fifteen and Sixteen Vict., 
 chapter 12, Section 6, as to fair imitations, and Inter-
 
 XIV. CONTENTS 
 
 f'AGK 
 
 national Copyright Act, 1886. (4) Statute of 1886 and 
 Order in Council of November 28, 1887. (5) Berne Con- 
 vention, when ratified. The like as to the Additional 
 Act of Paris, 1896. (6) "Country of Origin," meaning 
 of, in the Berne Convention and Act of Paris. Also of 
 " Country of the Forum " as used in this treatise. (7) 
 Rights and obligations under Article II. of the Berne Con- 
 vention, as regards an unpublished work. (8) As regards 
 a work first published in the United Kingdom, or any 
 other British possession. (9) Registration, required in 
 the case of a work entitled to copy- or performing-right 
 in the United Kingdom under the Berne Convention. 
 (10) Rights of the foreigner suing here, similar to those 
 of natives of Great Britain suing abroad. (11) Order 
 in Council not entirely co- extensive with the Convention. 
 (12) As to the rights of composers not natives of a country 
 of the Union. (13) Translations of works by an author 
 native of a country of the Union, not protected unless the- 
 original work had been first published in a covmtry of tlie 
 Union. (14) " Traductions licites,'" badly translated by 
 " authorised." A translation may be protected as an original 
 work would be. (15) Performing right under the Berne 
 Convention ; extended to translations of libretti. (16) Ques- 
 tions arismg on the reservation of pevformmg right. (17) 
 Arrangements and other modes of reproducing musical 
 pieces in a changed form. (18) Composer's name, when to 
 be stated on the work. (19) Seizure of piratical works. 
 (20) Pitts versus George; 1896; 2 Chancery, 866. (21) 
 Mechanical Instruments under the Berne Convention. (22) 
 Article XIV. of Berne Convention. Retrospective rights. 
 (23) The Austrian Convention, differs in what respects from 
 that of Berne. (24) Procedure governed by the lex loci. 
 (25) "Morocco Bound" syndicate versus Harris; 1895, 
 1 Chancery 534, Tabular form 75-91 
 
 CHAPTER VII. 
 
 (1 ) Colonial copy- and performing-right. State of the law under 
 the Copyright Amendment Act, 1842. (2) Change in the 
 law by the Statute of 1886; definitions of "British pos- 
 sessions " ; registration not necessary, when. (3) Power to 
 adapt imperial statutes to the existing law of any colony. 
 (4) Bearing of the Berne and future conventions on Colonial 
 copyright. Art. XIX. of Berne Convention. Note, meaning 
 of the term " country of origin " as between the mother 
 country and the colonies. (5) The question of importation 
 of foreign reprints generally. (6) Abuses. Section 17 of 
 the Statute of 1842 ignored in practice. (7) Foreign Re- 
 prints Act. (8) Question whether the Colonial Statutes 
 comprise music. (9) Stamping copyright works on impor- 
 tation not always required. (10) How the duties arc levied. 
 (Customs Consolidation Acts, 1876 and 1889.) (11) How 
 the duties are dealt with, if and when levied. (12) The
 
 CONTENTS XV. 
 
 PAGK 
 
 njsult discreditable to the colonial public and the .supiue 
 British Government. (13) A suggestion of Mr. Daldy to 
 ptu'tially remedy the abuses. (14) Certain of the statutes 
 relating to importation of foreign reprints, but also regu- 
 lating local coi^yright. (ir)) A table of the less important 
 (Colonial Statutes, having for their main object to fulfil the 
 requirements of the Foreign Reprints Act. (16) Copyright 
 in Canada. (17) Canadian Statute of 1875. (18) The 
 Imperial Statute of 1875 giving force to the latter. (19) 
 Smiles versus Belford. (20) That case discussed in the 
 Imperial Book Company versus Black and another, from 
 the point of view of the right generally. (21) Foreign 
 Reprints Act adopted by Canada. (22) Question of pro- 
 hibition on importation qua Canada. (23) Tariff of 1894. 
 (24) The Imperial Book Company versus Black from the 
 point of view of importation. ... ... 94 — 119 
 
 CHAPTER VIII. 
 
 (1) How British, and other non-American authors can obtain 
 copyright in the United States. (2) Residential proclama- 
 tion in that connection. (3) Terms of the Section con- 
 ferring upon authors' American copyright ; cases arising 
 in connection with it. (4) Performing-right, how acquired. 
 Cases in connection tlierewith. (5) Term of copyright. (6) 
 Prolongation of term. (7) Copyright, assignable. (8) For- 
 malities to be observed as a necessary condition to the 
 existence of copyright. Cases arising in connection with 
 them. (9) Necessary fees. (10) Reservation of right on 
 each copy. (11) Penalty for wrongful insertion of such a 
 reservation. (12) Penalties for infringement. (13) Pmiish- 
 ment for piracy. (14) Simultaneous publication. (15) How 
 performing-right arises in the United States, with reference 
 to the different state of law in Great Britain. 120 
 
 Apfkndix ... . . ... ■•• •■• ••• ■•• •■■ 1- 
 
 (iHNKRAL InDKX l'^'-
 
 XVI. 
 
 TABLES OF CASES. 
 
 PAGK 
 
 Afifalo i'. Lawrence (1902), 1 ; Chancery, 264 16 
 
 Bloom ■v. Nixon, 125 Federal Reports, 977 ... .^. ... 123 
 Bolles V. Outing Company, 77 Federal Reports, 966 ... 129, 130 
 
 Boosey v. Wliight (1900), 1 Chancery, 122 28, 32, 35, 36, 87, 130 
 
 Boucicault V. Chatterton, 5 Chancery Division, 272 63 
 
 Boucicault v. Delafield, 1 Hemming and Miller, 597 62 
 
 Boucicault i\ Hart, 13 Blatchford, 47 .., 125 
 
 Calahan ^;. Myers, 128 United States, 658 7 
 
 Chappell •?;. Boosej', 21 Chancery Division, 232 17,61 
 
 Chatterton v. Cave, 3 Appeal Cases, 483 41,73 
 
 Clark v. Bishop, 25 Law Times, 908 72 
 
 CoopPT t;. Whittingham, 15 Chancery Division, 501 35,55 
 
 Coote V. Judd, 23 Chancery Division, 727 23, 24 
 
 D'Almaine t;. Boosev, 1 Young and CoUyer, 288 44 
 
 Dicks V. Yates, 18 Chancery Division, 76 26,27 
 
 Duck V. Bates, 13 Queen's Bench Division, 843 64 
 
 Eaton r. Lake, 20 Queen's Bench Division, 378 ... ...16,18 
 
 26 
 
 68 
 
 Fairlic r. Boosey, 4 Appeal Cases, 711 
 
 French V. Dav, 9 Times Law Reports, 548 
 
 French ?;. Krelmg, 63 Federal Reports, 621 125 
 
 Fuller V. Blackpool "Winter-Gardens Company (1895), 2 
 
 Queen's Bench Division, 411 61,66,84 
 
 Gilbert v. Boosey, the Law Times, September 28, 1889 ... 46 
 
 Hanfstaengle v. American Tobacco Company (1895), 1, Queen's 
 
 Bench, 347 •.• 81, 88 viii. x. xii. 
 
 Hardacre v. Armstrong, 21 Times Law Reports, 189 60, 72 
 
 Henderson ■?;. Tomkins, 60 Federal Reports, 758 128 
 
 Hutchins. cxpartr, 4 Queen's Bench Division, 483 78 
 
 Imperial Book Company, v. Adam and Charles Black and 
 
 Clarke Company, Limited (Ontario), January 26, 1903 115, 118 
 
 Jeffreys r. Boosey (1854), 4 House of Lords' Cases, 869 ... 12, 18
 
 TABLES OF CASf:S XVll. 
 
 PAGE 
 
 Kelly's Directories v. Gavin (1901), 1 Chancery, 374 68 
 
 Kipling V. Fenno, 106 Federal Reports, 692 122 
 
 Lacyv, Rhys, 4 B. and S., 873 72 
 
 Lauri v. Renad (1892), 3 Ch. 402 ... 15, 16, 88, vii. ix. x. xi. xii. xiii. 
 
 Levy V. Rutley (1871), L. R. 6 Com. Pleas, ;j23 13 
 
 Littleton v. Oliver-Ditson Company, 62 Federal Reports, 597 127 
 Lyon V. Knowles, 3 Best and Smith, 556 68 
 
 Marsh v. Conquest, 17 Common Bench Reports, New Series, 
 
 418 67, 68 
 
 Mathieson V. Harrod, L. R., 7 Equit. 270 23 
 
 Monahan r. Taylor (1886), 2 Times Law Reports, 685 ... 68 
 
 "Morocco Bound" Syndicate v. Harris (1895), 1 Chancery, 534 90, 91 
 
 Moul V. Coronet Theatre, Times, February 4, 1893 66, 68 
 
 Moul V. Gronrngs (1891), 2 Queen's Bench Division, 443 ... xiii. 
 
 Nottage V. Jackson, 11 Queen's Bench Division, 627 ... ... 15 
 
 Novello V. Sudlow, 12 C. B., 177 46 
 
 Parsons V. Chapman, 15 Carrington and Payne, 33 68 
 
 Pitts V. George and Company (1896), 28 Chancery, 66 ... 86 
 
 Powell V. Head, 12 Chancery Division, 686 15 
 
 Press Publishing Company v. Munroe, 73 Federal Reports, 196 122 
 
 Prince Albert r. Strange, 1 Magnachten and Gordon, 25 ... 12 
 
 Routledge v. Low, L. R., 3 House of Lords, 100 17, 18, 34, 95, 111 
 
 Russell -y. Briant, 8 Common Bench, 836 68 
 
 Russell V. Smith. 12 Queen's Bench, 217 68 
 
 Saunders 1'. Smith, 3 Mylne and Craig, 711 39 
 
 Scribner v. Henry G. Allen Company, 49 Federal Reports, 
 
 854 * 129 
 
 Shelley v. Ross, cited in Levy v. Butler (1871), 6 Common 
 
 Pleas, 531 13 
 
 Shepherd t;. Conquest, 17 Common Bench, 427 13 
 
 Smiles V. Bedford, 1 Tupp App., 436 114 
 
 Stern v. Rosey, 17 Appeals, District of Columbia, 562 ... 130 
 
 Taylor V. Neville, 38 Law Times, N. S., 50 19 
 
 Thomas u. Turner, 33 Chancery Division, 292 23 
 
 Wagner V. Couried, 125 Federal Reports, 798 123 
 
 Wail u. Gordon, Drone, 296 130 
 
 Wall V. Taylor, 11 Queen's Bench Division, 102 ... 59, 64, 65 
 
 Warne V. Lawrence, 34 Weekly Reporter, 452 19 
 
 Warne v. Seehohn, 39 Chancery Division, 73 36 
 
 White Smith Company v. Apollo Companv, United States 
 
 Circuit Court in Equity, Nos. 8126, 8127J June 21, 1905 7, 28, 35 
 
 B
 
 XVlll. 
 
 TABLE OF STATUTES. 
 
 3 & 4 William IV., cap. 15 (Dramatic Copyright Act, 1833) 
 
 " Bulwer Lytton's Act " ...4, 58, 60, 61, 67, 70, 71, xv. 
 
 Section 2 73 
 
 1 & 2 Victoria, cap. 59 (International Copyright Act, 1838) ... 76 
 5 & Victoria, cap. 45 (The Copyright Amendment Act, 1842) 
 
 3, 4, 17, 34, 35, 51, 61, 71, 88, 95, 100, 127, xlii. 
 Section 2 23,53,54,56 
 
 
 3 
 
 
 
 15,53,54,56,81 
 
 
 5 
 
 
 
 24 
 
 
 11, 
 
 13 
 
 
 19 
 
 
 12 
 
 
 
 107 
 
 
 13 
 
 
 
 20, 23, 106 
 
 
 14 
 
 
 
 19 
 
 
 15 
 
 
 
 34, 35, 52, 53, 55, 57, 106 
 
 
 16 
 
 
 
 107 
 
 
 17 
 
 
 18. 35, 52, 53, 54, 55, 57, 86. 87, 99, 107, 
 
 114, 115, 118, 119 
 
 
 20 
 
 
 58, 60, 64, 70, 71, 72 
 
 
 21 
 
 
 
 71 
 
 
 22 
 
 
 
 16, 72, 73, 107 
 
 
 23 
 
 
 
 50,52,107 
 
 
 24 
 
 
 
 19,22,71,107 
 
 7 & 8 Victoria, cap. 12 (International Copyright Act, 1844) 
 
 76, 78, 87, 88, viii., ix. 
 
 SectioulO 86 
 
 „ 19 
 
 10 & 11 Victoria, cap 
 15 & 16 Victoria, cap 
 Section 4 
 6 
 
 62,63,76 
 
 95 (The Foreign Reprints Act) ... 99, 100, 115 
 12 (International Copyright Act, 1852) ... 77 
 
 77, xxvi. 
 
 38 & 39 Victoria, (The Canada Copyright Act, 1875) 111, 112, xxxv. 
 The Canada Copyright Act, 1875 (imperial) cap. 53 xi., 40 
 
 39 & 40 Victoria, cap. 36 (Customs Consolidation Act, 1876) — 
 
 Section42 101 
 
 54,59 
 
 102 
 
 102,117,118 
 
 102, 117, 118, 119 
 
 45 & 46 Victoria, cap. 40 (Copyright, Musical Composition Act, 
 
 1882, Walls Act) 60. 65, 84, xiv. 
 
 Section 4 xvi. 
 
 )> 
 
 42,4 
 
 4, 4£ 
 
 » 
 
 45 
 
 • • • 
 
 )> 
 
 151 
 
 • • • 
 
 5) 
 
 152 
 
 ...
 
 TABLE OF STATUTES 
 
 XIX. 
 
 49 & 50 Victoria, cap. 33 (International Copyright Act, 1886) 
 
 1., X. 
 
 5, 17, 59, 70, 77, 78, 81, 93, i., 
 Section 2 (3) 
 
 4 
 
 4(1) 
 
 5 
 
 6 88,93 
 
 8 
 
 8,9 
 
 10(1) 
 
 10(2) 
 
 11 
 
 12 
 
 51 & 52 Victoria, cap. 17 (Copyright Musical 
 
 Act, 1888 " 
 
 Section 2 
 
 3 
 
 4 
 
 52 &, 53 Victoria, cap. 42 (Revenue Act, 1889) 
 
 Part I., Section 1 
 2 Edward VII., cap. 15 (Musical (Summary Proceedings), Copy- 
 right Act, 1902) 48, 49, xvii 
 
 » 
 
 )» 
 » 
 
 »5 
 
 , VUl., IX., XUl., XXVI. 
 
 81 
 
 82 
 
 78 
 
 82, 83 
 
 xii., xiv., xxvii. 
 .. 96, 98, 111 
 
 95,96 
 
 78,11. 
 
 79 
 
 96 
 
 ii. 
 
 Compositions), 
 
 67, 69, 74, 84, xvi. 
 
 67 
 
 69 
 
 63 
 
 ... 101 
 
 ... 102
 
 A MANUAL OF 
 MUSICAL COPYRIGHT LAW. 
 
 CHAPTER T. 
 
 (1) Enemies of monopoly of brain-product. (2) Apology for copy- 
 right. (3) Historical sketch. (4) Remedy in respect of unpub- 
 lished works, perpetual. (5) Statutory origin : Talfourd's Act. 
 (6) Terra in a published work. (7) Some unpublished works 
 comprised in statutory remedies. (8) Literary copyright not 
 dealt with in this work. (9) Statutory performing right. (10) 
 International rights. (11) Machinery in respect of reciprocal 
 rights. (12) The International Copyright Act, 1886. (13) Rights 
 thereunder. 
 
 COPYRIGHT, AND ANALOGOUS FOEMS OF 
 PROTECTION EXPLAINED. 
 
 (1) Theee is a certain class of persons, who look upon 
 the protection which the law throws around the offspring 
 of a man's brain as an unjust monopoly, an invasion of 
 the liberty of the subject. These would-be lavish givers of 
 other people's property are more numerous, and in some 
 cases more influential, than one would suppose in an 
 enlightened age when, to use the often quoted language 
 of Lord Chancellor Brougham, " the schoolmaster is 
 abroad." Their policy is not dissimilar from, though 
 fraught with far wider mischief than that of the oppo- 
 nents of the game-laws. The attacks of both assailants 
 of the rights of property like other socialistic believers in 
 the axiom " la proprUte est le vol " are suicidal, and would 
 result in the slaughter of the bird which lays the golden 
 eggs. Instead of getting cheap music of a good class, the 
 abettors of the pirates will end by stopping the produc- 
 tion of all works of genius and even of popular ones. 
 
 (2) This argument is too familiar to need development. 
 If the allies of the notorious pirate of musical publica- 
 
 1
 
 '2 MUSICAL COPYRIGHT LAW 
 
 tions have minds so constituted that they cannot see the 
 inevitable result of withdrawing protection from pro- 
 ducers of "thoughts that burn," no reasoning of the 
 present writer on the old lines would convince such one- 
 sided and narrow thinkers. There is, however, another 
 form of argument derived from the mode in which copy- 
 right sprang up ; an evolution founded on the absolute 
 necessity for intervention by the legislature to prevent a 
 scramble for " no man's property," in the region of idea- 
 creation ; a necessity resembHng that which gave rise to 
 the laws giving validity to testamentary documents. If 
 it be found necessary in the interests of society, and if 
 it is not a vicious monopoly, to allow a man by making 
 a will to withdraw his goods and chattels after his death 
 from the clutches of the strongest and least scrupulous 
 citizens, there is no impropriety in following an analogous 
 course, and protecting what is often more precious than 
 money, brain product. 
 
 (3) Sympathisers with the street buccaneers who carry 
 out the principle " non vohis meUificates apes " and fatten 
 upon the pastures which industrious publishers have 
 cultivated and enriched by the sweat of their brow and 
 the money from their purse, think that musical copyright 
 sprung into life, the offspring of a few wealthy publishers, 
 nursed by the advocates in Parliament of those interested 
 wire pullers; and that it is only the apathy of an ignorant 
 and lazy public which allows it to live. The reverse is 
 the fact. Topsy's mode of accounting for the existence 
 of stupendous London, "I suppose it growed," applies 
 to copyright. It is not necessary to enlarge upon the 
 state of society prior to the reign of Queen Anne, when 
 not only the musical art was at a low ebb, but means of 
 multiplying copies of a musical piece were in their in- 
 fancy ; theft was not attractive, street pirates were 
 unknown in those halcyon days. Then men began to 
 suspect that music, following on to the heels of literary 
 composition, had a value, both intrinsic and pecuniary. 
 The theft of a MS. musical composition containing often 
 matter of national, nay, of European interest, was a 
 crime, and punishable as such ; and police-protection 
 was accorded to this sort of property. Then it came to 
 be held that even where a felonious intention or act was 
 wanting, as in the case of an executor, borrower, or other 
 person becoming possessed of, or obtaining access to a
 
 FORMS OF PROTECTION EXPLAINED 6 
 
 MS. by legal means, such person should be restrained by 
 the court from illegalhj publishing the contents of such 
 MS. or otherwise dealing with it so as to encroach upon 
 the rights of the author ; and performance in public, and 
 under certain circumstances in private, of a piece of 
 music or a dramatic piece not communicated to the pul^lic 
 by the composer or author, would be subject to the same 
 rule. 
 
 (4) The right to recover an unpublished MS. or toseeMacGii- 
 restrain publication or multiplication of copies of it or c^yright^ 
 performance, was and is unrestricted in point of time, cfs^es toere 
 and remains for ever unless interrupted by some act of cited, 
 acquiescence by the proprietor amounting to " leave and 
 
 license " to interfere with his rights or some part of them. 
 
 (5) These rights to protection for valuable property 
 sprang up by degrees and as it were, spontaneously, and 
 were due to no envious invention of avaricious pub- 
 lishers ; they took root in the natural sense of justice and 
 necessity, to avoid confusion and literary anarchy. The 
 same deep-seated motives caused the legislature to inter- 
 vene, and to crystallise the unwritten law by several 
 Statutes, which the writer abstains from referring to in 
 detail, as the measures in question were all repealed, and 
 the whole copyright law relating to Great Britain was 
 dealt with (or purported to be so) by the Act of 18-42 
 
 herein referred to as " The Copyright Amendment Act." 5 & e vic- 
 This Statute was due to the unceasing labours of the °"* °' '* * 
 large-minded and classical Serjeant Talfourd, and as will 
 be seen from his published correspondence, was free from 
 the taint of any editorial intrigue. 
 
 (G) In so far as the law relates to a MS. which the 
 author or composer has "published," (an expression 
 defined and explained later) he has to pay for the 
 additional clearness and precision of his rights by an 
 important limit in point of duration. He retains " copy- 
 right " (defined by the Statute as "the exclusive liberty 
 of printing or otherwise multiplying copies " ) for the 
 term of forty-two j^ears from the date of first publication, 
 or for his own life and seven years after, if the term of 
 forty-two shall earlier expire. As soon as his work is 
 published therefore he (or his assigns) becomes auto- 
 matically entitled to protection during the w'hole of his 
 life at all events ; his representatives or assigns are so 
 entitled for seven years from his death : and if the period
 
 4 MUSICAL COPYRIGHT LAW 
 
 of forty-two years from publication has not then expired, 
 then for the remainder of that period. 
 
 (7) This statutory provision only relates m terms to 
 works which have been " published." It seems to have 
 been generally assumed that the Statute has no operation 
 upon unpublished works at all. This seems inconsistent 
 with the language of some of the sections carefully read, 
 but as the author or composer unquestionably has, in 
 perpetuity, either under the Statute or by virtue of the 
 common law, all the rights to protection of his un- 
 published work which he formerly had, the question 
 by which jurisdiction those rights are conferred has only 
 a limited interest, which will be subsequently discussed. 
 
 (8) Inasmuch as the Copyright Amendment Act, 1842, 
 applies in terms to musical compositions as well as 
 literary ones, the writer will now drop all allusion to the 
 latter, except to touch upon some points connected with 
 words intended to be set to music. 
 
 (9) The same Statute confers on composers and their 
 assigns an exclusive right of performance of their musical 
 compositions, for the term of their life and seven years 
 after, or if an absolute period of forty-two years from the 
 fnist piihlic performance shall be then unexpired, then till 
 the expiration of such forty-two years ; this period is 
 similar to that of copyright, except that the latter 
 commences with publication, while performing right 
 commences with first performance. 
 
 3 & 4 "Wii- Under this Statute and a previous one, the Dramatic 
 
 Chapter 15'. Copyright Act, 1833 (commonly known as " Bulwer- 
 
 Lytton's Act "), the right to exclusive performance of 
 
 an unperformed work is conferred upon the author from 
 
 the composition of his work in perpetuity. 
 
 All the rights which flow from composition of a musical 
 piece, either apart from, or under legislation, will be con- 
 sidered in detail ; but a short sketch of extra-territorial 
 relations will first be given. 
 
 (10) So large a proportion of the music performed in 
 Great Britain is imported from France, Germany, Italy, 
 and more recently, Norway, Sweden, and Poland, that 
 international rights and obligations assume as great an 
 importance, or even a greater, than intra-territorial ones. 
 As long ago as early in the forties, conventions were 
 entered into between sundry continental States and Great 
 Britain ; and a continuous chain of reciprocity was kept
 
 FORMS OF PllOTECTION EXPLAINED 5 
 
 up ; but a more compendious measure had for its result 
 the Berne Convention, ratified in 1887, which was signed 
 by several continental and other States which are made 
 one for all substantial purposes of copy-and- performing- 
 right. 
 
 A supplemental convention was signed a little later The acwi- 
 making some modifications in the original one of Berne, of Paris, 
 
 The interests of the British Colonies, and other distant ^^^^' 
 possessions under these conventions, are stated in the 
 chapter which deals with the British possessions other 
 than the United Kingdom. 
 
 The United States of America have abstained from 
 signing. The process by which British subjects are 
 enabled to protect their compositions in America is given 
 in the chapter on that country. A separate convention 
 has since been entered into between Great Britain and 
 Austria, which in its main provisions is similar to the 
 Berne Convention. The differences will be noticed 
 hereafter. 
 
 (11) The machinery in this country which gives a 
 valid, legal existence to any convention with foreign 
 States, in respect of copyright matters, consists of a 
 statute of the legislature, giving power to the Privy 
 Council to carry out the contract in question by an order 
 which usually recites such contract. In some cases the 
 order precedes the Statute in point of time, and the 
 Statute operates as a ratification. 
 
 (12) The Statute of 1886 giving vaHdity to the order 
 of the Privy Council which refers to the Berne Conven- 
 tion, the order and the convention itself are summarised 
 or set out in the chapter on International rights or in 
 the appendix. - 
 
 (13) Suppose then a composition, of whatever descrip- 
 tion, which would be entitled to copy-and-performing- 
 right in Great Britain, has been since December 6, 1887, 
 published in one of the signatory States, the Act of 1886, 
 the order and convention, confer upon the composer and 
 his assigns " the same rights as the laws of Great Britain 
 confer on natives " (of Great Britain). No greater right, 
 however, can be enjoyed by a foreigner in Great Britain 
 (nor probably by a British subject abroad) than that 
 which the composer would have in his own country.
 
 CHAPTER II. 
 
 (1) Publication, a voluntary act, not enforced upon an author. 
 (2) Police protection for a MS. (3) Continental procedure : 
 Reissiger't; A Hat Mass. (4) Protection only granted wliere 
 first publication in British dominions, except by conventions. 
 (5) Assignment. (6) Writing necessary ; what is the proper 
 stamp. (7) Devolution on bankruptcy. (8) Passing off under 
 a piratical title : remedies. (9) Ground of jurisdiction. (10) 
 Joint authors. 
 
 EIGHTS BEFORE PUBLICATION. 
 
 (1) The biblical injunction restraining Christians from 
 hiding their talents in a napkin has no parallel in law ; 
 there is no rule of British jurisprudence forbidding a 
 composer to withhold from the public the products of 
 his brain, no matter how brilliant or valuable they may 
 be. The law will afford its protection to any author, 
 even to one who has produced work which it would be 
 a national benefit to have published, against piracy, 
 although the robber be inspired by a laudable wish to 
 communicate his literary booty to an admiring posterity. 
 
 (2) The mere theft of a manuscript, that is, of the 
 paper upon which are written the author's ideas, would 
 be an offence punishable by the Criminal Law ; the 
 reproduction in any form, or the public performance, of 
 those ideas, would be restrained by a civil court on 
 general principles of equity. 
 
 (3) The right of a man to keep concealed the expression 
 of his musical ideas exists also in some, if not all, conti- 
 nental states. 
 
 A striking instance of the exercise of this right is to be 
 found in Dresden. Some of our musical readers may, 
 perhaps, have heard at the Hof - Kirche (the Roman 
 Cathohc Cathedral) in that city, the Mass in the key 
 of A flat by Reissiger. Some, perhaps, have also (like 
 the writer) sought to obtain a copy of this, by far the 
 most highly inspired of the works of that somewhat 
 unequal composer. The answer always given is that
 
 RIGHTS BEFORE PUBLICATION 7 
 
 the consistory forbid the engraving of the work from an 
 annable wish to have the monopoly of performance. 
 
 (4) It must be understood that a work previously 
 published outside the British dominions, in a State not 
 a party to any copyright convention, cannot be entitled 
 to protection here, except as regards actual theft of the 
 manuscript. If, however, the country of publication is 
 a party to a convention with Great Britain, protection 
 may be claimed on grounds which will be stated in a 
 subsequent chapter. Protection, however, is afforded to 
 works published simultaneously in the United States and 
 the United Kingdom, on grounds which will be explained 
 hereafter. 
 
 An author may assign or bequeath to another his 
 unpublished work, including or not the right to publish 
 the same in foreign countries; the right, however, in 
 respect of countries not parties to a convention would be 
 probably nugatory, as the composer's work would not be 
 protected there.* On his death his rights in such work, 
 if undisposed of, devolve upon his personal representa- 
 tives. The proprietor of a composition may sub-divide 
 his copyright by way of assignment to different persons, 
 e.g., giving to one the exclusive right of orchestrating the 
 piece, or, if a song, of reproducing it in a different nota- 
 tion ; this may be done whether the original piece is 
 published or not. This subject is dealt with in the next 
 chapter. 
 
 (6) Writing is necessary to transfer a composer's right 
 to his unpublished work,t but there are no rules as to the 
 form which such writing must take, and a receipt indica- 
 ting clearly the intention to transfer will be sufiicient. 
 If, however, it is intended to rely on a receipt or any 
 
 * An example of this was found in the case of Mr. Beerbohm Tree, 
 who generously paid a large sum to the late Mr. du Maurier for 
 the right to use " Trilby " here ; though the writer explained to the 
 eminent actor-manager that the work liaving been first performed in 
 the U.IS., and America not being a party to a convention, the work 
 was in the pubhc domain in Great Britain. 
 
 t It has been held in the United States that " a publisher may 
 become the owner by parol transfer of the rights of the composer in 
 an unpubHshed work, though a writing is necessary to transfer title 
 after obtaining a copyright." Calahan v. Myers 128 United States, 
 658. White Smith Company v. Apollo Company, United States 
 Circuit Court m Equity, Nos. 8126, 8127, June 21, 1905.
 
 8 MUSICAL COPYRIGHT LAW 
 
 other docament as a cession of interest, the common 
 sixpenny stamp is insufficient, and a penalty is incmrred 
 which must be paid in order to make the instrument 
 producible in Court. The proper stamp is an ad valorem 
 one, or if an unascertained amount (as in the case of 
 royalties) is the consideration, or part of it, the stamp is 
 a ten-shilling one. This point is of great importance, as 
 hundreds of assignments have been executed on a six- 
 penny stamp when that amount is illegal, and some 
 cessions of very considerable value and importance are 
 thus tainted. 
 
 It is hardly necessary to add that the assignment 
 of an unpublished work may be made subject to almost 
 any limitations which the author may wish to impose 
 as to performing or abstaining from performmg the same, 
 or otherwise. 
 
 (7) There is a doubt whether the manuscript of an 
 unpublished work, and the right to publish the same, 
 pass in the event of the bankruptcy of an author to his 
 trustee, or whether the author's right to withhold publi- 
 cation continues notwithstanding bankruptcy. There is 
 a strong case in favour of the trustee where the manu- 
 script is one of a musical composition which may, possibly, 
 be utilised to add a considerable sum to the bankrupt's 
 assets. Where it is a question whether a diary or private 
 memoranda can or cannot be published, more delicate 
 considerations would arise. On the whole it would seem 
 up-hill work for a bankrupt to endeavour to restrain his 
 trustee from making available for the benefit of creditors 
 a manuscript opera, for instance, which the bankrupt 
 might be wishing to keep back in order to make a large 
 gain at some subsequent period. 
 
 (8) The right of protection treated of in the earlier sec- 
 tions of this chapter does not fall within the strict mean- 
 ing of the word " Copyright." It is mainly founded upon 
 the combined effect of the author's common law right of 
 property in his manuscript, and the equitable jurisdiction 
 to restrain improper or piratical use of a chattel fraudu- 
 lently obtained. There is another form of wrong not 
 strictly an invasion of copyright (though it is analogous 
 thereto) which is conveniently mentioned here. If some 
 unscrupulous person publishes a song, and gives to it a 
 title identical with, or being a colourable imitation of, the 
 title of some publication which has already achieved
 
 RIGHTS BEFORE PUBLICATION 9 
 
 success, and exposes the song for sale, with such external 
 details of colour and printing similar to those of the 
 successful work, as would be calculated to lead purchasers 
 to believe that the song, so prepared and "got up," is 
 really the successful song, the Courts will restrain by 
 injunction and punish by damages such a fraudulent act. 
 The case does not seem to have ever been litigated so far 
 as a musical composition is concerned, but there are many 
 analogous cases of punishment of those who seek to pass 
 off non-musical (i.e., literary) matter of another as original ; 
 and there is no doubt on principle that if any one offered 
 for sale a song with the name for instance of " The Lost 
 Chord" (not being the well-known song of that name), 
 and handed it to a purchaser asking for " The Lost 
 Chord," such a sale would be restrained ; and of course, 
 similarity of colour and printing which would help the 
 deception would render the case against the seller all the 
 more clear. The court would act in such a case partly in 
 the interest of the public who might be deceived, and 
 partly in that of the traduced composer, and without any 
 reference to the law of copyright except in so far as it 
 was necessary to enable the person injured to prove 
 himself the owner of the song imitated. And in such a 
 case not only the deceived purchaser (who would have a 
 financial interest), but also the composer would be entitled 
 to sue, on the ground, in the case of the latter, that his 
 reputation would be injured by circulation of an inferior 
 work as though it were his. An assignee of the author 
 who would have a financial interest would also be pro- 
 tected. If the fraudulent act and intent be proved, it is 
 not necessary to show that any person has actually been 
 deceived into purchasing the spurious article. The com- 
 poser or other the owner whose reputation or property is 
 endangered might sue for an injunction and delivery up 
 of spurious copies. 
 
 (9) The existence of the remedy in such a case is 
 emphatically insisted upon by the writer because of the 
 erroneous impression in the minds of the musical public 
 that there is no remedy in a case of such fraud. The 
 error is caused by the legal proposition that ''prima facie 
 there is no copyright in a mere title." The remedy 
 undoubtedly exists, but as before stated it is founded, not 
 upon copyright, but upon inherent jurisdiction to repress 
 fraud.
 
 10 MUSICAL COPYRIGHT LAW 
 
 (10) It is obvious that a piece of music may be the 
 work of more than one person. Not only an opera or 
 oratorio, but all the component parts of those forms of 
 composition, may have been due to joint efforts. The 
 consideration of joint rights is more important in the case 
 of copyright in the strict sense of the term (that is where 
 there is the statutory remedy hereinafter mentioned) than 
 it is where unpublished manuscripts are being treated of. 
 The writers know of no case where the question of joint 
 rights to a manuscript unpublished has ever come before 
 the Courts, though it will not escape the acumen of the 
 legal reader that even in cases prior to publication, embar- 
 rassment might be caused where one of two joint authors 
 wished to sue alone, a case which actually has occurred 
 where the subject matter was a published manuscript, 
 and the author entitled to strict copyright. The far more 
 serious question, " from what period the term of copy- 
 right is to be calculated, whether from the death of the 
 first dying of the joint authors or from that of the 
 survivor," is hereafter dealt with in its proper place, and 
 is not applicable to an unpublished manuscript, the 
 protection of which, is unlimited in point of time.
 
 11 
 
 CHAPTER III. 
 
 (1) What is publication : Prince Albert versus Strange. (2) Short 
 reference to term (Already stated in Chap. I.). (3) Posthumous 
 works. (-1) Abandoinnent of copyright by deed, &c. (5) Joint, 
 and plurality of, Authors ; question of duration of term in such 
 cases : different from question of property in term : must all 
 authors sue jointly : Vnijarje en Suisse. (6) Assignment of 
 copyright will not pass performing right. (7) Where publication 
 must occur to confer right : simultaneous publication. Whether 
 first performance abroad destroys copyright here. (8) Foreigners 
 whether entitled to copyright. Residence here whether neces- 
 sary. Eoutledge versus Low. (9) Place where music composed 
 or printed, whether material under Sect. 3 of Copyright Amend- 
 ment Act, 1842. Under Section 17. (10) Area of protection. 
 (11) Assignment how effected : by writing : by entry on register : 
 What stamp necessary. (12) Registration not necessary unless 
 action brought. (13) Copyright divisible : qua locality : qua 
 shares : qua time : q?(d form of publication. (14) License is not 
 assignment : wliether licensee can be a good plaintiff against an 
 infruigement. (15) Whether a royalty runs with the copj^right — 
 qua burden — qua benefit. (16) Registration cannot precede pub- 
 lication : particulars to be entered : discrepancy between section 
 of statute and schedule : forms must be rigorously followed : who 
 is publisher for purposes of entry. (17) New editions how regis- 
 tered. (18) Expression marks: "La Frileuse"oi Heller: how 
 registered. (19) Remedy for faulty registration, if any. (20) 
 Copyright in titles : Dick versus Yates. (21) What is a •' sheet 
 of music " : Boosey versus Whight. (22) Foreign law as to 
 mechanical instruments. (23) Instrumental scores, lawfully 
 made, are protected against pu-acj- : arrangements : adaptations : 
 expression marks. " La Friletise." 
 
 RIGHTS AFTER PUBLICATION. 
 
 (1) Upon publication, by or by order of a composer, of 
 his work, the common law rights, which as we have just 
 seen, a composer has in his manuscript, absolutely cease 
 and determine. 
 
 Publication operates as an abandonment of such rights, 
 and in their place arise those given by the Copyright 
 Acts. 
 
 There is no statutory definition of the word " publica-
 
 12 MUSICAL COPYRIGHT LAW 
 
 tion," but it may, perhaps, be defined as a " communica- 
 tion putting the subject matter within reach of the pubhc 
 generally." A composer may, without "publishing" his 
 work, show it to his friends, and may give them copies of 
 it, provided he does not come within the above definition, 
 and bring it before the outside world either for value, or 
 gratuitously. 
 1 Macnagh- In the case of Prince Albert versus Strange, her late 
 dontpage°2"5 Majesty Queen Victoria and the Prince Consort, had 
 occasionally for their own amusement made drawings 
 and etchings of subjects of private and domestic interest 
 to themselves. Of some of these etchings they had had 
 impressions made which had been placed in the private 
 apartments at Windsor Castle and some had been given 
 to personal friends. The defendant had surreptitiously 
 obtained copies of these etchings and proposed to hold 
 an exhibition of them, publishing what he called, " a 
 Descriptive Catalogue of the Koyal Victoria and Albert 
 Gallery of Etchings." A bill was filed in chancery to 
 restrain the defendant from holding the exhibition and 
 publishing the catalogue ; and an injunction was granted ; 
 the Lord Chancellor (Lord Cottenham) saying that the 
 gift of some of tlie etchings to personal friends did not 
 amount to publication. 
 House ^of The rule then laid down was approved of by the House 
 
 869^^ ^^^®^ of Lords in the case of Jeffreys versus Boosey. 
 
 The most usual means of publication is the offering of 
 a composition for sale by a publisher. 
 
 (2) The term for which copyright is to endure has been 
 already stated in the first chapter ; it may, however, be 
 convenient to repeat here that it endures for the com- 
 poser's life and a term of seven years from his death : if 
 the term of seven years expires in less than forty-two 
 years from first publication, the copyright lasts for the 
 term of forty-two years. 
 
 (3) As regards posthumous works, i.e., work published 
 after the composer of it has died, the copyright endures 
 for a term of forty-two years from the date of first pub- 
 lication, and is the property of the proprietor of the 
 author's manuscript from which such book shall be first 
 published, and that of his assigns. 
 
 It would seem that where a posthumous MS. is given 
 as a valuable relic or souvenir, without the property in 
 the term being intended to pass, the statute would often 
 defeat this intention.
 
 RIGHTS AFTER PUBLICATION 13 
 
 It is obvious from what is above stated that a single 
 author (as opposed to joint authors) cannot survive his 
 copyright, though, if not abandoned, it must survive him. 
 The minimum period is the term of his own hfe. 
 
 (4) He may abandon his copyright by executing a deed, 
 or some other solemn instrument showing an unmis- 
 takable intention to do so. 
 
 It is apprehended that such a document would operate See cop- 
 so as to estop the author from asserting any exclusive cdftTon, 
 right. ^'J}^- 
 
 A recent case of abandonment of copyright occurred \u^ 
 when Messrs. Novello had employed the late Dean Hole 
 to write a new verse of " God Save the Queen," in sub- 
 stitution for the traditional one, which, it was thought, 
 contained allusions likely to give umbrage to foreigners 
 visiting England at the time of the Jubilee of 1897 ; on 
 the substitutional lines being known, the demands for 
 license of user became so numerous that Messrs. Novello 
 patriotically gave up their rights by announcing their 
 intention in letters addressed to the editors of some of 
 the London daily papers, and duly published therein. 
 
 Copyright is personal property and belongs to the 
 author and his assigns. The word "assigns" is defined 
 in the statute to mean " every person in whom the 
 interest of an author in copyright shall be vested, whether 
 derived from such author before or after publication, and 
 whether acquired by sale, gift, bequest, operation of law 
 or otherwise." 
 
 (5) There may be joint authors of a musical com- Levy versus 
 position by whom copyright may be acquired. What L^R.®^c<?m^^ 
 amounts to joint authorship is a question of fact, and it fieifey^i^rsw 
 is impossible to lay down any rule for determining the Ross, cited 
 
 f^ •' •' ° in Note to 
 
 question. above case 
 
 If the piece has been originally written by two persons atpage53i. 
 jointly in prosecution of a preconcerted joint design, the 
 two may possibly be said to be joint authors of the 
 whole, notwithstanding that different portions were 
 respectively the sole production of each. 
 
 The authorities are worthy of study, as showing the shepherd 
 facts by which courts of law are guided when such cases quest, i?" 
 
 Common 
 arise. Bench, 427. 
 
 There can, of course, be no question in such a case as g^^j^^t^'^nd 
 the sixth book of Mendelssohn's " Lieder ohne Worte," weatheriy, 
 in which one number was said to have been composed by ^*^^® ^^'
 
 14 MUSICAL COPYRIGHT LAW 
 
 Fanny Henscbel, or, in the case of a piece framed on 
 the lines of "The Geisha " and other musical comedies, 
 where there are, in a sense, a plurality of authors. The 
 numbers signed by Mr. Lionel Monckton form a totally 
 different property from those composed by Mr. Sidney 
 Jones. 
 
 It is a mere accident, in such cases, that they all form 
 part of what is popularly considered to be one work. 
 
 The combination in one volume, for the purposes of sale 
 of the separable work of two or more persons, would not 
 constitute joint authorship. The separate work of each 
 author w^ould, in such cases, be the subject matter of 
 separate copyright. But this question might well have 
 arisen in France in the days of Alexandre Dumas fils, 
 where (to use the language of the late Mr, Albert Smith) 
 " it seemed to take three people to write anything." 
 In many cases one, at least, of the three was a dummy, 
 except to the extent of paying the well-know^n author 
 for permission to be named as a collahorateur. If 
 questions, in such a case, arise, either for the purpose of 
 fixing the term or otherwise, is the person to whose 
 invention the whole piece is substantially due estopped 
 from denying that the non-worker is a co-author? The 
 answ'er would seem to be that in an action brought by 
 one ostensible author against another, the actual inventor 
 would not be allowed to deny representations made by 
 him to the public as to the co-operation of another 
 person ; in an action bi'ought against an infringer, how- 
 ever, a different rule from that prevailing between the 
 ostensible authors inte7' se would apply ; and the question 
 of length of term would be regulated by the life of the 
 actual authors, to the exclusion of a person having had 
 no share in the creation of the work, but merely held out 
 to the world as a collahorateur. 
 
 There is no statutory provision as to the duration of 
 term in the case of joint authorship ; nor is there any 
 direct authority on the subject, and it is a question of 
 some difficulty whether the term w^ould be for the life of 
 the last surviving of joint authors, and seven years, or for 
 the joint lives of the joint authors and seven years. For 
 instance, to borrow a case from literature, the " Golden 
 Butterfly" was the joint work of Sir Walter Besant and 
 Mr. Rice. Assuuje that it was first publi.'-'hed in 1840. 
 Mr. Eice died first in 1882, Sir Walter Besant died in
 
 RIGHTS AFTER PUBLICATION 15 
 
 1901.* Does the copyright come to an end in 1889, 
 
 seven years after the death of Mr. Eice, or does it endure 
 
 until seven years from the death of Sir Walter Besant, 
 
 i.e., until 1908? In other v^ords do Sir Walter Be.sant 
 
 and Mr. Eice together count as one author — " Such imJndSeut 
 
 author," as the Statute says? The case has yet to be Act. .1842. 
 
 decided but probably the courts, which usually give the 
 
 largest interest they can to an author, would make the 
 
 term as long as possible, and would hold that it did not 
 
 expire until seven years from the death of Sir Walter Nottaee wr- 
 
 ir J sHs Jackson, 
 
 Besant. II. Queen's 
 
 A careful distinction must be made between the ques- ^on^^eiVr' 
 tion of duration of the term and the question of property ^^^^^^]\'q^^ 
 in the work. The former point is the one dealt with 
 above. 
 
 As regards the latter point, the question of property, 
 the interest of the first dying of joint authors (not having 
 been assigned by him in his lifetime) would on his death 
 pass to his legal personal representatives, who would be 
 entitled to all royalties or profits arising from such inter- PoweU wrsws- 
 est during the subsistence of the copyright, the survivor chancery 
 or his representatives being entitled to the other interest, ggyl^^^^' 
 The same rule would apply, if the first to die left a will ^^uri wr^<s 
 
 T e^■ T- £ Zu Ci. Renad, 1892, 
 
 disposmg of his share oi the pronts. 3 ch. 402. 
 
 An illustration of the rights of joint owners occurred Jo no\acm^- 
 some years back when Mrs. Powell purchased a balf ^ny^raise the 
 share in the performing right of an opera. The late Mrs. stated in the 
 Liston being entitled to the other moiety only, purported observations 
 to give a license to a Mr. Head to perform the opera gg^^/g^g^^^ef''^ 
 (which was produced by him and ran for fifty-five nights), ^^jj^^^.^^ 
 without the concurrence of Mrs. Powell, who brought division, 
 an action to recover the penalties under the Statute. strongly sup- 
 
 Head was condemned in this action to pay to IMrs. f°^'tiSthl®^ 
 Powell one half of the 40s. damages (the statutory case otcopy- 
 penalty) in respect of each performance, i.e., it was held that of other 
 that the owner of half the interest in the copyright could p^ope^ty?^ 
 not lesrally grant a licence to perform the work behind 3omt authors 
 
 1 1 n 1 1 J ji ii 1 T ■ 1. arenot joint 
 
 the back of the co-owner, but on the other liand it was tenants, but 
 also held that one co-owner could act to the extent ofowne^s^or 
 bringing an action without the concurrence of the other 1^^^^^^^ 
 owner. 
 
 * The "Golden Butterfly" was in fact first published in 1876, so 
 that in this particular case the question can never really arise, as 
 forty-two years from first publication does not elapse until 1918, more 
 than seven years after the death of Sir W. Besant.
 
 16 
 
 MUSICAL COPYRIGHT LAW 
 
 1892. 8 
 
 Chancery 
 402. 
 
 Eaton versus 
 Lake, 20 
 Queen's 
 Bench Divi- 
 eion, 378. 
 Afflalo versva 
 Lawrence, 
 1902, 1 Chan- 
 cery 264. 
 
 5 & 6 Vict, 
 chap. 45, 
 sec. XXn. 
 
 In another case, namely, that of "Le Voyage en Suisse," 
 the four celebrated pantomimists and acrobats, the Hanlon 
 Brothers, with a fifth brother, were the registered owners 
 of both the copyright and performing right. 
 
 In 1884 two of the five died, and shortly afterwards the 
 three sm-vivors entered into a contract with Charles Lauri 
 (also a celebrated pantomimist and acrobat), for the sale 
 to him of all their rights in the play. Lauri made 
 arrangements and expended a large sum of money with 
 a view to the performance of the play in the provinces, 
 when a Parisian troupe of pantomimists, " Benad Frdres," 
 advertised an intention of performing the play in England. 
 
 In an action by Lauri against the Benads, it was 
 objected that Lauri had no title to sue, because he had 
 acquired the rights of only three out of five of the original 
 owners (two having died before the sale). The objection 
 was overruled by the Judge in the Court of first instance 
 on the ground that though the plaintiffs had not the 
 complete title to the whole property they were, as part 
 owners, entitled to three fifths, and in that character 
 entitled to sue in trespass, to prevent a stranger inter- 
 fering. As they were preventing interference with that 
 of which they were part owners they could maintain their 
 action. 
 
 The case was dealt with on grounds which are treated 
 at greater length in the chapter on International Eights. 
 
 (6) Where an opera or ballet is composed to order for 
 the manager of a theatre or music hall who pays for it, 
 the copyright and performing right remain with the 
 composer, unless an agreement is made in writing, 
 though he may have been in the employ of the manager 
 as musical conductor. 
 
 The money having been paid by the employer under 
 a mistake of law could not, it would seem, be recovered 
 by him, it being a settled rule that there can be no remedy 
 for money paid under mistake, except under a mistake of 
 fact, and not of law. 
 
 It is very desirable, where music is composed in such 
 circumstances, that the rights of the parties should be 
 expressed in writing ; a course but seldom resorted to in 
 artistic life. 
 
 No assignment of the copyright in music will pass 
 performing right, unless an entry be made in the registry 
 of such assignment expressing the intentions of the 
 parties that performing right should pass.
 
 RIGHTS AFTER PUBLICATION 17 
 
 (7) In order (o secure protection publication must take 
 place in the United Kingdom or in some British Posses- 
 sion. Until the passing of the International Copyright 
 Act, 188G (49 and 50 Vict. c. 33j, publication must have 
 taken place within the limits of the United Kingdom. ^°^/i!ow^ 
 The eighth section of that Act, however, provides in s^ufg^^f'^" 
 efifect that the provisions of the Copyright Amendment Lords lOO. 
 Act, 1842, shall apply to a musical composition first 
 published in a British Possession, in like manner as 
 they apply to a musical composition first published in 
 the United Kingdom. 
 
 The rule is generally stated as above, but it would be 
 more accurate to put the converse, viz., the work must 
 not have been previously published outside British Posses- 
 sions ; for the simultaneous publication in some foreign 
 state and in British territory will not destroy copyright. 
 The foreign state just alluded to is supposed to be one 
 which has not joined in any convention with Great 
 Britain. If there were a convention between Great 
 Britain and the foreign state they would, as will be 
 hereafter seen, be one for the purposes of publication, 
 and it would be immaterial, so far as the acquisition of 
 copyright is concerned, in which of the two states publi- 
 cation first occurred. Of course, publication by the 
 author or his assigns is the publication contemplated 
 by the rule. No copyright would be acquired by a wrong- 
 doer who has surreptitiously obtained the author's manu- 
 script, nor would such publication operate to set the 
 copyright term running; his action would enure 'JCvr 
 the benefit of the author, who would be entitled as 
 elsewhere stated in these pages to an account of profits 
 and damages. 
 
 A prior foreign per/orma?ice, as opposed to publication, 
 does not in any way affect copyright here. 
 
 In the United States of America (a republic which has Chappen 
 
 . . -ir-t iT-)-j-\ ve*"*!'* Boosey, 
 
 never entered into any convention witli Great Britain), 21 chancery 
 first, or rather ^^unanticipated," publication is one of the sercutier. 
 conditions for the acquisition of copyright ; it is the daily weathe?iy 
 custom for London publishers to keep back a musical page 35. 
 work ready for publication until copies have been 
 despatched to the United States ; publication is then 
 made both in this country and in the United States 
 simultaneously. In this manner copyright is secured 
 here as well as on the other side of the Atlantic, the
 
 18 
 
 MUSICAL COPYRIGHT LAW 
 
 See Chapter 
 II., para- 
 graph 6. 
 
 Eaton versus 
 Lake. 20 
 Queen's 
 Sench Divi- 
 sion, 378. 
 
 American law being the same in this respect as ours, viz., 
 that simultaneous publication is the same in practice as 
 first publication. The whole of this subject will be gone 
 into detail hereafter. 
 
 (8) Copyright can be acquired by any one, whether a 
 citizen of a foreign state or of this country. It is, how- 
 ever, not free from doubt whether in the case of a foreign 
 citizen residence in British territory at the time of publi- 
 cation is essential to the acquisition of copyright.* 
 
 (9) Music in order to obtain protection need not gener- 
 ally have been composed or printed in any particular 
 place. There is, however, an apparent exception to this 
 rule which will be considered when Section 17 of the 
 Copyright Amendment Act, 1842, relating to unauthorised 
 importation is dealt with. 
 
 (10) Once protection has been acquired, it extends into 
 every part of the British Dominions, and to all countries 
 which are parties to a convention with Great Britain. 
 
 The protection, however, as regards Canada and one or 
 two other colonies, is modified by special legislation in a 
 mode which requires carefully detailed statement to be 
 found in the chapter on colonial copyright. 
 
 (11) Assignment of copyright must be effected by 
 writing, but a deed under seal is not necessary, and the 
 form of writing is not important : it may take the form 
 of Sj receipt, if tJie inteiitioji to transfer is clear; o, mere 
 receipt, however, is not in itself a sufficient expression of 
 intention to operate as an assignment. 
 
 * In the case of Routledge versus Low (Law Reports 3, House of 
 Lords 100), decided by the House of Lords in 1868, Lord Cairns and 
 Lord Westbxiry stated that in their opmion residence within British 
 territory was not necessary ; the other Lords who were parties to the 
 decision, viz.. Lords Cranworth, Chehusford and Colonsay, refused to 
 express any opinion on the point which it was not necessary on the 
 facts to decide. 
 
 The opinion of Lords Cairns and Westbury is in direct conflict with 
 the decision of the House of Lords m Jeffcrj-s versus Boosey on the 
 earUer Copyright Statute passed in the reign of Queen Anne, and 
 since repealed, and so the matter stands. 
 
 The better opinion seems to be that expressed by Ijords Cairns and 
 Westbury, and probably an alien can acquire copyright in this country 
 although he is not within the British Dominions' at the time of publi- 
 cation. This view was taken by the law officers when the British 
 Government had to make to that of the United States a declaration 
 on a point of international law, as will be hereafter seen in the 
 chapter of this work devoted to America.
 
 RIGHTS AFTER PUBLICATION 19 
 
 This rule is so rigid that by analogy, even the payment Taylor wrsw 
 of money by an employer to a composer on a verbal agree- Law Times! 
 ment that the copyright shall vest in the employer, will ^•®' ^°" 
 not be sufficient to have that operation. 
 
 In some cases, however, a long and consistent course of 
 dealing has been held to be a sufficient ground for the 
 Court to presume, without positive evidence, that an 
 assignment has been duly made. The necessary stamp 
 on an assignment is an ad valorem one ; or where the 
 value is unascertained, as when the consideration consists 
 of a royalty, ten shillings. Any document purporting to 
 operate as an assignment of copy or performing right, 
 which only bears a receipt or agreement stamp, cannot be 
 used in Court to prove a cession of right except subject 
 to the usual penalty. 
 
 An entry on the register at Stationers' Hall made in 5 & 6 ^}'^\^ 
 statutory form b}^ the registered proprietor of copyright, section xi. ' 
 is sufficient to all intents and purposes to transfer the ^^•^■'^• 
 copyright. The statutory requirements and formalities 
 must, however, be strictly observed, and a fee of five 
 shillings for each entry is demanded. 
 
 (12) Begistration of copyright is not essential to the Sec. xxiv. 
 acquisition or existence of copyright ; but it must be wame versus 
 effected before any action for infringement is taken. The 34,^^Jkiy 
 registration may take place on the same day as that on Reporter, 
 which the first step in the action is taken. 
 
 An assignment, in other respects valid, does not require 
 to be registered. 
 
 Any person aggrieved by an entry in the book of ^^^- ^^'^• 
 registry may apply to the High Court and may procure 
 the entry to be expunged or varied. 
 
 (13) It is clear that copyright under the international 
 conventions, hereafter set out, is divisible as between 
 different states and this subject will be hereafter dealt 
 with. 
 
 It is, however, a question of some doubt how far copy- 
 right is assignable for some particular inter-territorial 
 district ; and it is also doubtful whether it is so for some 
 specified term shorter than the statutory term. 
 
 Either of these objects can, however, be attained by 
 license, a supple form of transfer, which is recommended 
 whenever it is desired to split up copyright in a particular 
 work, either locally or as regards duration. 
 
 This method will enable the desired result to be
 
 20 MUSICAL COPYRIGHT LAW 
 
 obtained, and by its means the difficulties attendant upon 
 an assignment, including the necessity for registration, 
 are avoided. The license ought to be, and probably must 
 be, in writing. 
 
 There is no doubt that the whole subject-matter of 
 copyright is divisible and capable of assignment in parts ; 
 that is to say, half, or any other part of, or a given 
 number of, shares in, the copyright in a particular work 
 may be assigned or transferred, and such an assignment is 
 contemplated by Section 13 of the Copyright Act, 1842. 
 
 In such a case it is not necessary to have recourse to a 
 license. A partial transfer by way of license extending 
 only to provincial rights of performance, is of every day 
 occurrence ; and is a good practical example of this con- 
 venient form of modified assignment. 
 Cutler, A good instance of divisibility of copyright is given in 
 
 Weatheriy, ^ recent work, viz., assignment by a lyric writer of a set 
 46. of words for musical setting, with the reservation to 
 
 himself of the right to publish those words as a literary 
 work apart from music. 
 
 The case of a composer assigning his rights in a choral 
 work to one publisher in the staff notation, and to another 
 publisher in the tonic sol-fa notation, is not very un- 
 common. 
 
 (14) The right of a licensee, even an exclusive one, to 
 sue an infringer without the concurrence of the legal 
 owner of the copyright is sometimes questioned. If this 
 doubt be well founded it would present the rare though 
 not unprecedented case of a legal wrong without a remedy. 
 It would seem, however, that the right must, in some 
 cases, exist ; a licensee of an amount of copies which 
 would practically exhaust the copyright, or nearly so, 
 can not be expected to stand by and see an unscrupulous 
 infringer — a musical pirate, perhaps — eviscerate and 
 render valueless the work over which his license, given for 
 value, extends. It would create a substantial equity if the 
 licensee, going for an injunction to restrain irreparable 
 damage and danger to property, were to allege and prove 
 collusion, or even supineness, on the part of the owner. 
 
 Again, suppose the copyright owner grants a license 
 for England, reserving Scotland to himself, the licensee 
 must be able to sue in England, for the owner, having 
 practically, though not lej^ally, parted with all substantial 
 mterest qwl England, might not be held to be a good
 
 RIGHTS AFTER PUBLICATION 21 
 
 plaintiff. The case would seem analogous to those where 
 a person, having a merely indirect equitable interest in 
 corporeal property, is entitled to an injunction to prevent 
 its destruction. 
 
 (15) A question which often occurs on sales of copy- 
 right is, " how far an assignee, on purchasing, is bound by 
 the undertaking, or contract, of the assignor (the original 
 proprietor) to pay to the author a royalty proportional to 
 sales of copies." It would seem that such a contract is 
 a purely personal one and cannot be made to follow the 
 copyright into whosesoever hands the same may come, 
 and that no person buying from the original proprietor 
 would be liable to pay the royalties to the author, unless 
 the buyer is, in some mode or other, personally fixed with 
 the liability, and that the mere purchase by him of the 
 copyright would not be sufficient so to fix him. It would 
 seem convenient that agreements between authors and 
 publishers should be so prepared that, on resale to a third 
 person, the publishers should retain their obligation and 
 remain liable to pay the roj^alties they contracted to pay 
 to the author, even after the property in the work has 
 passed from them. 
 
 It is a common practice in catalogues on resales to 
 insert, after the title of each work, the words, "subject 
 to a royalty of 3d. per copy," or similar words; and, no 
 doubt, the intention of the parties is, by such words, to 
 shift the burden of the royalties from the original pur- 
 chaser to the buyer at the second sale. It is singular 
 that no case should have occurred for decision of a pur- 
 chaser buying on a catalogue containing the words in 
 question and being sued for royalties ; nor on the other 
 has there been any decision fixing the original purchaser 
 (the publisher) with the liability. It would seem that 
 the mere fact of the catalogue containing the above words 
 would hardly amount to a contract by the purchaser to 
 take upon himself the liabihty, and that he ought to 
 enter into a specific undertaking to relieve the first 
 purchaser, if that be the intention of the parties. 
 
 An agreement by the original purchaser to " pay the 
 author a sum per copy sold, subject to the usual trade 
 deductions," or words to the like effect, would seem not to 
 apply to a sale of the whole subject matter en bloc, but 
 only to retail sales. 
 
 A purchaser of copyright should enquire whether any
 
 22 MUSICAL COPYRIGHT LAW 
 
 licenses have been granted by his vendor or any previous 
 owner. The writer was called upon to advise in a case 
 where a well-known English composer assigned an 
 oratorio to one of the largest London publishers on an 
 agreement which entitled the composer to a royalty on 
 every copy of the work sold by them. In the absence of 
 any provision in the contract dealing with the case of a 
 sale piecemeal, the question was raised whether they 
 could be prevented from selling choruses, or any other 
 isolated morceau, separately. In such a case, if it were 
 intended so to limit the publisher's right of dealing, the 
 agreement ought to have contained a clause to that effect. 
 Otherwise the publisher's contract with the composer does 
 not imply any such shackle, on their user of the work, 
 exercised bond fide. If there were a determined attempt 
 to defeat the composer's rights by rendering the subject 
 matter of the contract worthless, he might raise an equity 
 to restrain them. The mere withdrawal of the work 
 from sale would be optional, and would not amount to 
 such an attempt. 
 
 So, if a man contracting for a royalty wishes to prevent 
 the owner from giving leave to makers of gramophones 
 and other similar instruments to utilise the work, the 
 royalty holder should stipulate to that effect in his con- 
 tract. He who bargains for a mere royalty gets that and 
 no more, and cannot interfere with the control of the 
 owner over his property except in a case of bad faith. 
 
 On an assignment by the original purchaser, in the 
 absence of special agreement to the contrary, he would 
 not be prevented from selling any copies previously 
 printed by him and remaining in stock. 
 
 (16) It is a widely-disseminated error that registration 
 confers copyright. The fact is that it is only a vexatious 
 and absurd preliminary to the commencement of an 
 action. In the course of the consideration before Lord 
 Monkswell's committee of the recent codifying copyright 
 bill, the uselessness of this capricious regulation was 
 admitted by the conspicuously able lords forming the 
 committee, and it was unanimously agreed to abolish 
 registration altogether. Until, however, a government 
 can be found able and willing to spare sufficient time to 
 consider and amend the existing copyright law, the neces- 
 5 & 6 Vic- sity for registration continues. The Statute is express to 
 
 toria 
 
 J 6 Vic- sity for registration continues. 
 !'^±xiV. ' the effect that no proprietor of 
 
 sec. ±xiV. ' the effect that no proprietor of copyright shall maintain
 
 RIGHTS AFTER PUBLICATION 23 
 
 any action, or take any summary proceeding, in respect of The^Copy- 
 any infringement of copyright without registration. Amendment 
 
 Registration cannot be effected before pubHcation. sectin*!.' 
 
 In the 13th section of the Copyright Amendment Act 
 are prescribed the particulars which are to be entered 
 upon the Registry of the Stationers' Company. They 
 are as follows : — 
 
 (1) The title of the book. 
 
 (2) The time of first publication. 
 
 (3) The name and place of abode of the publisher. 
 
 (4) The name and place of abode of the proprietor of 
 the copyright, or of any portion of the copyright. 
 
 The section provides that these particulars are to be 
 entered in the form given in the schedule to the Act. 
 
 There is a difference between the particulars prescribed 
 by the section and those required by the form in the 
 schedule; the item "place of publication" taking in the 
 form, the place of the item " the place of abode of the 
 publisher," in the text. 
 
 The form in the schedule is the one adopted at 
 Stationers' Hall, and entry of the place of publication is 
 there treated as obligatory. 
 
 Every particular required by the Statute must be regis- Mathieson 
 tered with the minutest care. The title of the book must rod'i? «•" 
 be correctly stated. It is stated in the text books no ^^ho^j^'^s'i^Js^i 
 doubt correctly, that if a book has no title a description Turner, 33 
 
 ,,,. ■ , "^ Ch. Division, 
 
 IS suracient. 292. 
 
 The exact date of publication to the very day must be 
 stated. 
 
 There is less minuteness required in the entry of locale 
 (place of abode of the proprietor) than in the entry of 
 date. A place of business will do duty for " place of 
 abode." In the analogous realm of international copy- Mr. Justice 
 right (hereafter described in detail), it was held by ^/usYic'^^y tir- 
 a very able judge that " Munich " was a sutHcient i^^e- 
 address to be registered of the proprietor, who was in 
 the case in question the celebrated painter Muncaczy. 
 
 No doubt the Court took this fact into consideration 
 when invited to relax the strict literal view. 
 
 It is perhaps unnecessary to say that "publisher" in coote wsiw 
 the statutory registration entry, means the original pub- chaacery 
 lisher, and not any subsequent vendor of music who may division 727. 
 for the time being hold the plates.
 
 24 
 
 MUSICAL COPYEIGHT LAW 
 
 This is in accordance with the sense in which the 
 writer beheves the words " pubHsh " and "pubhsher" to 
 be invariably used in the Statutes relating to copyright. 
 
 "Publication, in the United Kingdom," "publication 
 in a foreign state," and similar phrases, always import 
 " original publication." In Section 5 of the Copyright 
 Amendment Act, where a renewed or second publication 
 is spoken of, the word " republish " is used. 
 
 In the matter of registration entries " publisher " means 
 the business man who first exposes a piece for sale at his 
 place of business, though it may be done vicariously on 
 commission, for the author, and even though the words 
 " author's property " may be printed on the copies.* 
 
 In the case of a composer who, like the eminent 
 organist of " The People's Palace," has some of his com- 
 positions printed for himself, and sells them without the 
 intervention of a middle-man, for the purposes of regis- 
 tration entries the composer is both publisher and 
 proprietor. 
 
 If a man is trustee for certain persons entitled to the 
 beneficial interest : say, the executor of Sir Arthur Sulli- 
 i8yi,3Chan. van, who would hold that composer's pieces (or such of 
 them as had not been vested by contract in his lifetime in 
 other persons) upon trust for his legatees, such trustee or 
 executor may be entered on the register as proprietor, 
 and such registration is good. But there must be a real 
 proprietor in some sense entered, and if Sir Arthur 
 Sullivan registered himself as composer of a hymn tune, 
 and afterwards assigned it to Messrs. Novello, there 
 would be no one in existence who could sue an infringer, 
 until Messrs. Novello had caused themselves to be entered 
 as proprietor for the time being. The double rule is 
 easily retained in the mind from the antithesis. The 
 
 London 
 Printing 
 AUiance 
 versus Cox, 
 
 Cutler, 
 Smith and 
 Weatherly, 
 p. 52. 
 
 * In a recent work on music and dramatic copj'righfc the authors, 
 commenting on an observation of Vice C. Bacon in Cootc versus Judd 
 (23 Chy. div. 727), justly (as it is submitted) comphi.in of the narrow- 
 ness of his definition, " He who gets the song engraved, and keeps 
 the metal plates' and lithographic stone" ; and the supposed case is 
 suggested of a composer who has a song engraved and sung, and 
 keeps the plates, but does not sell any copies. He after assigns hia 
 copyright to a publisher who sells copies. The present writer does 
 not feel pressed by the Vice-Chancellor's dictum, and feels no doubt 
 that the rule stated earlier in this chapter applies. Mere performance 
 is not publication ; analogously, engraving with performance is not so.
 
 RIGHTS AFTER PUBLICATION 25 
 
 first publisher and the last proprietor are to be respec- 
 tively registered. 
 
 It has been held that in the case of the publisher's 4°^ed^ff ' 
 name, the actual style used in the business must be ii6. 
 entered, so as to convey the proper information of identity 
 to the public. Thus, to draw^ upon fiction for an illustra- 
 tion, " Dombey and Son " would be the proper style to 
 enter, though Paul Dombey was an infant, or actually 
 non-existent : and even if Mr. Carker had been taken in 
 as a partner, " Dombey and Carker " would be a bad regis- 
 tration, unless it had come to be the generally known and 
 adopted title. Readers will understand that the con- 
 sequence of non-compliance with statutory requirements 
 as to registration, however minute, is the same as if there 
 had been no registration at all, and that an action for 
 infringement fails, with costs to be paid by the person 
 suing, if the registration is defective ; so it is all im- 
 portant for a litigant, if an intended plaintiff, to register 
 with literal accuracy, or to ascertain that the actual pro- 
 prietor at the time of suing has done so ; if he be a 
 defendant he should scrutinise closely the plaintiff's entry, 
 that the proper objection may be taken. If any entry be 
 bad, the action drops automatically, however flagrant the 
 defendant's piracy may have been. 
 
 (17) Some embarrassment is caused where a new 
 edition is issued containing matter in a sense inseparable, 
 but for purposes of registration, separable, from that con- 
 tained in the original edition. As regards new editions 
 containing new matter, the date of publication registered 
 will be that of publication of the first edition, as regards 
 the old matter, and of the additions, as regards them. 
 
 (18) An instance where this form of registration would 
 occur arose in the case of the pianoforte study "La 
 Frileuse," hy Stephen Heller. In 1862, some years after 
 the date of the original publication of the music, at -the 
 instance of Messrs. Ashdown, the composer revised the 
 original version and added numerous and important 
 marks of expression, which of course coming from so 
 distinguished a person would have a substantial value 
 both artistic and commercial. In 1895, when the copy- 
 right in the music had expired, but not that in the sub- 
 sequently inserted expression marks, a firm of publishers 
 brought out a new edition of both music and expression 
 marks, which they had of course a right to do as regards
 
 26 MUSICAL COPYIIIGHT LAW 
 
 tlie music ; and the}' claimed a similar right as regards 
 the expression marks, on the ground that such trifling 
 matter was not the proper subject for protection. The 
 Court restrained the use of the appropriated expression 
 marks. The decision is not reported, but the facts are 
 within the knowledge of the writer who advised pro- 
 fessionall}' in the matter. In this case, no doubt, the 
 date when the new expression marks were first published, 
 was on the register, unless, indeed, the point was over- 
 looked. 
 
 The rule has been stated differently with reference to 
 literary i.e., unmusical, matter, and it has been treated 
 as though in the case of a new edition containing new 
 matter the proper registration was the date of publi- 
 cation of the new edition ; but it must be remembered 
 that in the case of a book the new edition answers the 
 description in the Statute as a thing the date of publica- 
 tion of which must be registered. Where, however, one 
 is dealing with sheets of music, even where bound up 
 together, the position would be somewhat altered ; eacii 
 of them is "a book" according to the definition in the 
 Statute. The sheets of music therefore which contain 
 any substantial amount of new matter are separable, and 
 are properly registered as having been published for the 
 first time when the new edition is brought out. If this 
 were not so, and the amount of new matter were con- 
 siderable, the obligation of registering it might be evaded 
 by issuing it together w^ith the old portions as a new 
 edition. If the matter is inseparable, or it is doubtful 
 whether it is or is not, it will be prudent to register the 
 date of publication of the new edition to avoid question ; 
 for the authorities show that if registration covers un- 
 Boosey^T^" neccssary ground, the worst result which can happen is 
 Appeal' that it would be considered superfluous, and the sur- 
 ases, . pi;;isage will not create invalidity. 
 
 (19) In case of erroneous registration, through the 
 fault of the officials at Stationers' Hall, the plamtiff is 
 the sufferer and the Courts will not grant him any relief 
 unless before bringing any action he rectifies the register. 
 
 (20) The question whether there can be " copyright " 
 in a mere title, as such, has been usually met with an 
 emphatic answer in the negative ; but, like other emphatic 
 answers to a general question, it needs some qualification. 
 In the case of Dicks versus Yates, which is generally
 
 RIGHTS AFTER PUBLICATION 27 
 
 referred to as the leading authority on this point, a claim i8.c>ancerj 
 was made to ''copyright'' in the title " Splendid Misery." 
 The plaintiff claimed a monoply in those words for a novel 
 which was bein^^ brought out in a weekly periodical called 
 Every Week. The defendant adopted the same title for 
 a novel written by Miss Braddon, whicli was coming out 
 in The World. Tlie action to restrain the defendant from 
 using the title failed, but the Master of the Rolls (the 
 late Sir George Jessel) guarded himself from laying down 
 that copyright in a title was nnpossible, and put the 
 supposed case of a title expanded to such length, and 
 containing literary matter of such character as to con- 
 stitute an amount of invention worthy of protection. As 
 regards a title for a musical composition the possibility of 
 the supposed case occurring is so remote that it may well 
 be ignored. 
 
 In the case we are now citing the Court decided 
 emphatically that there could be no copyright in a title 
 consisting of two or three common English words, which 
 might possibly be nothing more than mere description. 
 Take the case of such a title as " Songs for Children," or 
 " Songs without Words," for instance, the first known 
 taker of such a title cannot possibly have a monopoly 
 in it. 
 
 This question was much discussed before Lord Monks- 
 well's Copyright Committee. It arose before them whilst 
 the well-known composer and conductor, Mr. James 
 Glover, was giving his evidence. Mr. Glover complained 
 bitterly, that the value of one of his songs had been 
 materiall}^ diminished through the action of some un- 
 scrupulous publisher who had taken his title, had applied 
 it to a song of an inferior character, and was selling a 
 large number of copies to persons who were under the 
 impression that they were buying his (Mr. Glover's) com- 
 position. It was pointed out, after the question whether 
 it was possible to give protection to a title had been 
 discussed at considerable length, that persons in Mr. 
 Glover's position were not without a remedy. In such a 
 case if it were proved that the inferior song was being 
 sold to persons who believed that they were buying Mr. 
 Glover's song, a court of equity would interfere by grant- 
 ing an injunction and awarding damages, not indeed 
 because there had been an invasion of copyright, but on 
 the ground of fraud. This matter is discussed in chapter 
 II. ante.
 
 28 MUSICAL COPYRIGHT LAW 
 
 It appears to the author that the only way in which 
 statutory protection could be extended to titles would be 
 by adopting some system of registration analogous to that 
 which obtains in the case of trade marks ; giving juris- 
 diction to some official to decide whether a particular title 
 is a proper subject for protection ; and excluding every- 
 thing which is mere description. Such a system would, 
 however, be fraught with difficulty, and their Lordships 
 who formed Lord Monkswell's Committee took this view, 
 and declined to insert in the proposed bill any clause 
 dealing with the matter. 
 
 Perhaps the strongest case that can be conceived for 
 granting protection to titles would arise if some person, 
 aware how difficult it is to select a pithy and attractive 
 title for a song or a drawing-room pianoforte piece, were 
 to publish a list containing striking catchwords to be 
 used as titles. It is quite clear that if anybody took a 
 substantial part of the list, and published the titles as his 
 own invention, he would be restrained from so doing, but 
 if single items were taken by single individuals, would the 
 author have any remedy '? It would seem that he would 
 not ; for the question of quantum is important in cases 
 of infringement ; yet it is a hard case that a person should 
 not be protected in such a way as to enable him to reap 
 the fruits of his ingenuity, and invention, when he may 
 only be desirous of making some moderate charge for the 
 right to use a particular title invented by himself. Such 
 a list as here suggested might be invaluable to prolific and 
 worn-out composers. 
 
 It will not have escaped the reader that this topic is 
 somev/hat outside the subject of musical copyright. It 
 is, however, of such importance to composers and pub- 
 lishers that some allusion to it was absolutely necessary. 
 ^^^^ 1 (21) The term "sheet of music" has been criticised 
 
 p. 122. * recently in the case of Boosey v. Whight, in which 
 Company^'* Mcssrs. Boosey, the firm of musical publishers, sought 
 Company^^° for an injunction to restrain the defendant, the proprietor 
 ^^nited ' of a mechanical organ called the " Aeolian," from repro- 
 cuit Court, ducing by means of cardboard discs, copyright airs the 
 D'istrictof property of the plaintiff. The Aeolian is a mechanical 
 sil'e-sm^' instrument worked by perforated rolls of cardboard repre- 
 senting the musical scores. The perforations were not 
 intelligible to any musician, however skilled a reader of 
 music he might be, and the Court held that the rolls were
 
 RIGHTS AFTER PUBLICATION 29 
 
 not "sheets of music," within the meaning of the act, 
 and refused to grant the injunctioa asked. It was not 
 considered that the owners of the mechanical instrument 
 had copied the pubhshers' sheets of music. " To play an 
 instrument from a sheet of music which appeals to the 
 eye is one thing ; to play an instrument with a perforated 
 sheet which itself forms part of the machine producing 
 the music is quite another thing." Of course in many 
 cases it is advantageous to a composer and to a publisher 
 to have the additional publicity for their wares which 
 such performance gives them ; but justice requires that 
 the consent of the proprietors of the copyright should be 
 asked, and that they should be entitled to have some 
 share in the fruits which are being reaped from the 
 productions of their brains, their labour, and their capital. 
 
 There are, too, cases in which a composer feels that his 
 style of work is not suited for reproduction by means of 
 a machine. In some cases, indeed, airs of an exalted 
 or pathetic character have become so vulgarised and 
 hackneyed from such reproduction that their sale has 
 been materially injured. 
 
 This question also came under the discussion of Lord 
 Monkswell's Copyright Committee. The general feeling 
 of that body was against altering the law laid down in 
 Boosey v. Whight, so as to give to a composer or 
 his assigns a right to veto such a reproduction of his 
 work, which would have enabled him, or theim, to demand 
 payment for this form of reproduction. 
 
 Lords Knutsford and Thring, in particular, were very 
 strongly in favour of perfect freedom amongst the manu- 
 facturers, believing that the power of composers or pub- 
 lishers to exact payment would operate as a clog on the 
 poor man's enjoyment of music ; but the manufacture of 
 mechanical musical instruments is so flourishing, and 
 such large fortunes are made by the individuals engaged 
 in it, compared with those made by composers, and even 
 by musical publishers, that a moderate royalty, which 
 would be an important matter to these two classes, would 
 not really be felt as an appreciable tax by the manu- 
 facturers. 
 
 (22) Both in France and Germany the law is now also 
 in favour of the instrument makers. In Germany, until 
 recently, the decisions in the Keichstag were in favour of 
 the composers; but the tide has now turned, with a
 
 30 MUSICAL COPYRIGHT LAW 
 
 distinction, however, in favour of the composer under 
 certain circumstances. The Land-Gericht of Berlin has 
 decided, in the case of Lincke v. Gramophone Company, 
 that the reproduction of copyright music on the gramo- 
 phone was an infringement, and an injunction, and £5 
 damages, were granted. The decision extended also to 
 performing right. In France there is an old law, the 
 words of which would cover the case of modern mechani- 
 cal instruments, but the influence of the Swiss people 
 has been unsparingly used in order to induce the French 
 Government to construe the rule in question in such 
 a way as to weaken its force and to extinguish the rights 
 of the composer to control, forbid, or make profit by, 
 the production of his music by means of mechanical 
 musical instruments. 
 
 (23) Other instances of works, to which the protection 
 of copyright is afforded, are : — 
 
 (i.) Arrangements, adaptations and instrumental 
 scores of non-copyright pieces, or of copyright ones, 
 of which the composer has authorised the arrange- 
 ment or instrumentation. There may be sufficient 
 originality in the arrangement of the notes or the 
 choice and disposition of the instruments to rise to 
 the height of invention ; and, indeed, even the most 
 common-form orchestration cannot safely be copied, 
 as the copyist would be reaping in another's field. 
 The author of a score is entitled to maintain an 
 action against any person who has availed himself of 
 his ingenuity and labour. 
 
 This point is somewhat analogous to the case of 
 a photograph or engraving. The engraver or photo- 
 grapher is supposed to put so much of his own style 
 into his work that the engraver, e.g., of one of 
 Turner's pictures, could sue any person who copied 
 his engraving, though the subject of the picture is no 
 longer protected. So Berlioz, or his heirs, could sue 
 any copyist of his orchestration of Weber's "Invita- 
 tion a la valse," though that brilliant composition is 
 not, in itself, entitled to protection ; and the pro- 
 position will not seem far-fetched to any musician 
 who hears the Berlioz score (in Dfl), and that by 
 Eheinberger (in the original key of Db) close upon 
 one another. The feehng of, and treatment by, 
 the two arrangers is wholly different, and it will be
 
 RIGHTS AFTER PUBLICATION 31 
 
 readily seen that the individuality of style in orches- 
 tral writing may be sufficiently marked to constitute 
 a work deserving protection. 
 
 The evidence, if a case of alleged plagiarism 
 occurred, would be of an extremely scientific nature. 
 Themis would be more than usually blind, or rather 
 deaf (in the persons of judge and counsel), and the 
 case would be decided by the word of experts, for 
 explanation and demonstration would be nearly, if 
 not quite, impossible to persons not educated as 
 musicians ; indeed, the writer has pleaded before 
 judges who seemed to think that they ought not to 
 assume judicial knowledge of the existence of musical 
 notes, far less of the effect of change of tonality, or 
 even of the most ordinary and simple rules of form 
 and rhythm. 
 
 It is possible that the respect for individuality 
 in colour may be carried a step further, and that the 
 reproduction of a striking orchestral figure might be 
 restrained, even where the instrumentation is fitted 
 to a different melody. Few musicians would fail to 
 recognise the orchestral combination in the wedding 
 chorus of Balfe's " Sata7iella" (in the key of G) as 
 having occurred in the first number (in the same 
 key) of Meyerbeer's " PropJUte," though the melodic 
 themes are wholly different. 
 
 (ii.) Authorised arrangements of airs from operas 
 as fantasias for the piano or organ, or even as dance 
 music for the orchestra or pianoforte, may show 
 sufficient invention to merit copyright, which might 
 paradoxically be enforced, even against the com- 
 poser of the original melodies, if he were to re- 
 produce them in their new dress, without, in his 
 turn, obtaining authority to do so. This would, no 
 doubt, be a startling result of perfectly logical reason- 
 ing. At all events any reproduction, lawfully made, 
 of original music in a different form involving inven- 
 tion by the reproducer is protected. 
 
 (iii.) Adaptation of original words to a non- 
 copyright* air, or of old words to a non-copyright 
 
 * The term "non-copyright," as used in this part of the text, is 
 intended to compi'iso protected matter as to which the owner has, 
 2xro hue vice, renounced copyright, and permitted the combination 
 with oiigmal words, &c.
 
 32 MUSICAL COPYRIGHT LAW 
 
 air, or to an original air with a suitable accompani- 
 ment, may be copyright. 
 
 (iv.) Expression marks and fingering marks. 
 In the case previously mentioned of Heller's study, 
 whfgJtr'^^'^ "La Fyihuse," it was held that such marks and 
 
 cery'i2^^'^^ figures, when applied by the composer to music of 
 
 his which was already published, were a fit subject 
 matter for copyright and entitled to protection, 
 though the term of copyright in the piece of music 
 to which they had been added had expired. The 
 Courts rejected the claim of the original proprietor 
 of the copyright of "La Frileuse" to the title 
 " L'avalanche," which he had given to the piece on 
 bringing out a new edition ; another instance of the 
 reluctance of the Courts to give a copyright in a title. 
 The case is an unreported one.* 
 
 * The protection would be confined to the use of the marks in con- 
 nection with the music to which they were originally applied. It 
 must not be supposed that a composer could interfere with the 
 appropriation of even an original mark of expression when used in 
 connection with a musical phrase only similar to, and not identical 
 with, his own.
 
 33 
 
 CHAPTER IV. 
 
 (1) Copyright how defined. (2) Ignorance, whether a defence : selling 
 copies of a pirated work without knowledge of piracy. (3) For- 
 tuitous resemblances. (4) What is a copy. The ^Eolian. Boosey 
 versus Whight. (5) Application of the principle in Boosey 
 versus Whight to the Tonic Sol-fa notation. (6) Is one copy 
 an infringement. (7) The "Little Lord Fauntleroy" case. (8) 
 Piratical rectors and choir masters : chants and hymns thought 
 fair game. (9) Copying on black-boards in village schools. (10) 
 Transposition, an infiingement. (11) Quantum : proportion of 
 pirated matter, (a) to the original work as a whole, (6) to the 
 pirate's work as a whole. (12) Value of more importance than 
 quantity in judging of an infringement : does not depend upon 
 a certain fixed number of bars being taken. (13) Passages taken 
 from a common source : — some common-form phrases used by 
 the classical masters would not be protected. Handel an un- 
 scrupulous, though beneficent, pirate. (14) Sometimes a phrase 
 of two bars or even less, is so marked in character as to be 
 protected : the first two bars in Beethoven's C Minor Symphony. 
 (15) The subject of Bach's E Major Fugue, Bk. 2 of the Wold- 
 temperirtes Clavier, not original. (16) " Part not particle " : 
 the " Wandering Jew " case : though the case of a drama, 
 applies in principle to music. (17) Colourable alterations, an 
 aggravation. (18) What is identity. (19) " Marguerita," an air 
 so loosely constructed that protection would be difficult. (20) 
 Instances of scale and arpeggio motives which, though copied 
 would be dangerous subjects of an action for infringement. 
 (21) Badges of piracy; copying errors. (22) D'Almaine versus 
 Boosey. Disguise by change of purpose and general character 
 no defence if the ear can trace the theme through the disguise. 
 (23) Mendelssohn's Lied in A Major in fancy dress. (24) Fair 
 criticism allowed, but in other cases pious motive no defence. 
 Novello versus Sudlow. (25) Mutilation restrained. Gilbert 
 versus Boosey : " Pianista." (26) Analogous case in literature 
 of translations. (27) Street pirates. (28) How this form of 
 robbery is carried on. (29) Playing or singing copyright music 
 is no infringement of copyright, though it may come under the 
 head of another form of protection : see chapter on performing 
 right. (30) Effect of performance abroad on copyright here. 
 
 (31) Practical hints to a young composer whose work is pirated. 
 
 (32) As to moving ex parte. (33) Limitation of thne for suing. 
 (34) Section 23 of the Copyright Amendment Act, 1842. (35) 
 Sections 15 and 17 considered. (36) Customs Consolidation 
 Act, 1876, Sections 42, 44 and 45. (37) The penalties enacted
 
 34 MUSICAL COPYRIGHT LAW 
 
 by Sections 15 and 17 of the Copyright Amendment Act, 1842, 
 not exhaustive, and do not exclude the remedy by injunction. 
 (38) Question of guilty knowledge. (39) Sections 2 and 3 of 
 Copyright Amendment Act, 1842. Offences and remedies in 
 tabular form. (40) Sections 15 and 17. Offences and remedies 
 in tabular form. 
 
 INFEINGEMENTS. 
 
 (1) The word " copyright" is to be construed to mean 
 the sole and exclusive liberty of printing or otherwise 
 multiplying copies of any subject " to which the word is 
 by the Statute applied." This is the definition in the 
 Copyright Amendment Act, 1842. 
 
 It is curious that this definition should have been over- 
 looked by Lord Cranworth in the case of Koutledge versus 
 LawReports, Low, where his Lordship says that it is a remarkable fact 
 Ho^se of ' i^j-jat the Act in question " though it repeats all the former 
 page 122. Statutes, nowhere defines or declares what is to be under- 
 stood by the word copyright. It assumes copyright to 
 be a well-known right, and legislates in respect of it 
 accordingly." 
 
 (2) The first question that seems to arise in consider- 
 ing the above-mentioned statutes is, whether ignorance 
 of the existence of the copyright infringed is a defence, 
 and whether the plaintiff must prove that the defendant 
 knew that he was committing a wrongful act? 
 
 In the case of selling, pubhshing, exposing for sale 
 or hire, or the having in possession for sale or hire, 
 copies of a pirated work, knowledge of the rights of the 
 proprietor of the copyright is essential. In these cases 
 knowledge that the sheet of music in question has been 
 unlawfully " printed or imported " is by the express 
 words of the Statute (see 15) made a necessary ingredient 
 in the offence. 
 
 That Section (stated briefly) confers a right to bring 
 an action for damages in cases (among others) where 
 a person sells, publishes, or exposes for sale or liire, 
 or has in his possession for sale or hire, any book 
 unlawfully printed or imported, with knowledge of the 
 illegality of his act. It would seem that this special 
 remedy for the offences mentioned, limited as it is by 
 the condition making a guilty knowledge necessary for 
 the right of suing to accrue, would exclude the right 
 to get damages under the earlier sections of the Statute
 
 INFEINGEMENTS 35 
 
 in cases where the seUiiig, pubhshiiig, exposing for sale 
 or hire, or unlawful possession results from ignorance 
 of the facts creating illegality. 
 
 It is clear that the special remedy by way of damages 
 given in Section 15 does not exclude jurisdiction to grant 
 an injunction to restrain the acts in question, ivhere the 
 guilty knowledge exists, for wherever an Act is declared 
 illegal by a Scatute, and a special remedy, other than an 
 injunction, is conferred, the right to an injunction exists 
 under the inherent jurisdiction of the Court. 
 
 But surely the Courts ought not, acting under the whfuing-'"' 
 earlier clauses which merely confer the general right, ham, is 
 and in the teeth of Sections 15 and 17 which make know- Divisio^ 
 ledge of illegality the test of guilt, to restrain a selling, p"-^® ^°^- 
 exposing for sale, &c., without that knowledge. 
 
 He who wishes to multiply copies of any work is bound 
 to satisfy himself that the work is in the pubhc domain, 
 either by expiration of the copyright term or otherwise, 
 or to obtain a license from the author or his assigns. 
 
 (3) Even if, by some striking coincidence, an author 
 happens to compose, and make a copy of, a piece similar 
 to one which is the subject of existing copyright, he 
 commits an infringement. 
 
 (4) The Statute does not define a copy. It is settled 
 law that the perforated rolls of cardboard sold for use 
 with a mechanical organ, called the "/Eolian," by means 
 of which the sounds of a copyright piece of music are 
 produced, are not "copies" within the meaning of the 
 Copyright Act, 1842, and cannot, therefore, infringe copy- 
 right. This was decided by the Court of Appeal in 
 
 Boosey versus Whight. The learned judge, Mr. Justice, Je??,' J.S.22?" 
 now Lord Justice, Stirling, who decided the case in the whitesmith 
 Court of First Instance, w^ent upon the ground that the vrsus Apoiio 
 perforations in the roll were not such a mode of notation u°s!'circuit 
 as a reader of music, familiar with the ordinary musical er^n^Diftri^c? 
 notations only, would be able to decipher ; and also that ofWewYork, 
 such mechanical instruments as JSolians not being known, 
 or, at any rate, very slightly known, when the Act was 
 passed, the cardboard rolls could not have been "copies" 
 within the purview of the Act, and consequently the 
 Legislature could not have contemplated this mode of 
 transcription as " a multiplication of copies." 
 
 (5) It must not be supposed that the decision in Boosey 
 versus Whight would justify the copying in the tonic
 
 36 
 
 MUSICAL COPYRIGHT LAW 
 
 "Wame versvs 
 Seebohn : 39 
 Chancery 
 Division 73. 
 
 sol-fa notation of a copyright piece of music printed in 
 the ordinary musical notation. This would clearly be an 
 infringement. In the case of Boosey versus Whight the 
 Court held that the perforated roll was not " a sheet of 
 music ; " a piece of music printed in the tonic sol-fa nota- 
 tion, or embossed according to the Braile system for the 
 blind, would clearly be a " sheet of music." 
 
 (6) There is no decision to the effect that a single copy 
 is " a multiplication " of the original, though it would be 
 a rash experiment to rely on the suggestion of multitude 
 in the definition, and to defy an action, for the sake of a 
 single copy of a musical piece. But in the cognate realm 
 of dramatic literature there is authority that four copies 
 amount to an infringement, and will be restrained from 
 circulation. 
 
 (7) In the case in question the plaintiff was the owner of 
 the copyright in " Little Lord Fauntleroy." The defen- 
 dant dramatised the story, and caused it to be performed 
 as a play. This he was entitled to do, for, as the law 
 stands, a novelist cannot, without going through a process 
 not observed in the Fauntleroy case, prevent any person 
 from acting his or her novel. This anomalous state of 
 things depends on the construction placed by the Courts 
 on statutes hereinafter alluded to. The defendant, how- 
 ever, with a want of forethought which few of us can 
 regret, supplied the plaintiff with a rod for his own 
 chastisement by having four copies made of the neces- 
 sary parts of the novel, and handed three to the actors, 
 while the fourth was sent to the government censor for 
 inspection. The copies contained many passages taken 
 verbatim from the novel. The Court held that though 
 unauthorised performance of a novel by speaking its 
 language on a stage is not forbidden, copying any sub- 
 stantial portion of it, even to the limited extent which 
 occurred in this case, is a " multiplication," and subjects 
 the defendant to the remedies given by the Act, and 
 which are, later on in this chapter, treated in detail as 
 applied to music. The principle of the Lord Fauntleroy 
 case as to the multiplication applies to music, and the 
 case might be read convertibly, substituting "printed and 
 published lyrical piece or opera" for "novel" in the 
 literary case. However, the defendant might be said 
 gratuitously to have invoked punishment for his moral 
 theft (if any) by copying the speeches, for he might have
 
 INFRINGEMENTS 37 
 
 come off scot-free had he bought copies of the book, and 
 so avoided the necessity of reproduction. This would not 
 be so in the case of an opera where, as will be hereafter 
 seen, unauthorised performance, as well as copying, is 
 forbidden. 
 
 (8) The public cannot be too seriously warned against 
 the danger, so rarely appreciated or even known, which 
 they run by copying in MS. protected matter. Popular 
 ignorance as to the law even among the intellectual 
 classes is shown by the typical case of the rector or 
 choirmaster, who sends to the largest known London 
 firm of publishers of church music for one copy of a 
 copyright Kyrie, chant, or hymn, which would be useless 
 for choral purposes unless the music were to be repro- 
 duced, presumably in MS. A still more transparent case 
 occurs in a not uncommon form of order for a single copy 
 of a copyright chant book and fifty MS. music copybooks. 
 Every presiding authority of " choirs and places where 
 they sing" should have, as a reminder, a copy of the 
 Lord Fauntleroy case embroidered as a phylactery to be 
 worn on his brow. 
 
 (9) A very common form of infringement is the pur- 
 chase by a school teacher of one copy of a favourite 
 copyright song, and the writing, both words and music, 
 on the blackboard for the pupils to learn, or on magic- 
 lantern slides. This is, no doubt, a mild form of the 
 epidemic ; the reproduction is not intended for sale, and 
 no actual profit is made out of the composer or publisher ; 
 but, on the other hand, they are illegally deprived of the 
 profit which would accrue had the whole class been pro- 
 vided with purchased copies of the work. 
 
 (10) The writer has elsewhere dealt with unblushing 
 purchasers (often of the rich classes) from the street 
 pirates. The young lady who comes in her thousands to 
 buy popular songs and transpose them in MS. has more 
 excuse, as she may want the songs in keys in which they 
 are not published ; but it is only the excuse of the person 
 who wants a thing which is not for sale and steals it. It 
 is, perhaps, specially necessary to inform the lay reader 
 that alteration of key does not absolve the copyist from 
 the sin of theft. If the melody is reproduced in any form 
 it will be an infringement. 
 
 (11) A nice question arises when the quantum of 
 matter copied can be alleged to be so insignificant as
 
 38 MUSICAL COPYRIGHT LAW 
 
 not to justify judicial interference. This point may be 
 looked upon from two sides ; on the one hand the 
 quantity of matter taken from a book will be balanced 
 by the Courts against the relative amount contained in 
 the whole book ; and on the other, the Courts will not 
 pass over as unimportant the amount of original matter 
 with which the pirated portion is mixed up in the 
 defendant's work. There are infinite gradations between 
 the two extremes ; one being that of the theft of nearly 
 all the original matter in a copyright work of important 
 proportions appropriated by the thief so as to form the 
 largest part, or it may be the whole, of his book ; the 
 other extreme case being that of half a dozen lines taken 
 from a volume of a hundred or two pages, and used 
 piratically in company with as many pages or chapters 
 of original matter. That there is a difference in principle 
 between the aspects of these two forms of piracy is 
 shown by the difficulty found by a layman in even 
 contemplating the possibility of the first, as seeming to 
 presuppose incredible audacity ; but the case is by no 
 means impossible, as when some unauthorised person 
 carelessly reprints a whole book under a mistaken 
 impression, either of law or fact, that the term of copy- 
 right is expired ; or that the copyright being inter- 
 national, has been lost through the neglect of certain 
 forms ; and indeed the present writer was the victim of 
 a piracy in the larger proportions where neither doubtful 
 law nor fact could be pleaded as any excuse. 
 
 If half a dozen lines, or otherwise a small proportion of 
 matter, are piratically taken, the answer to the question, 
 infringement or not, would be in the importance of the 
 portion copied. In the case of a legal work, for instance, 
 consistmg nuainly of authorities, i.e., judicial cases cited, 
 selected, and cast in a mould, the copying and putting 
 forward as original an isolated passage containing an 
 ingenious theory of the author, or his comments on the 
 cited cases printed for the first time would be mercilessly 
 dealt with by the Court. " It is not only quantity, but 
 value that is always looked at." 
 
 (12) In the case of music a not infrequent error 
 consists in the belief that a certain determined number 
 of notes or bars identical with the same number in a 
 previous composition constitutes an infringement. 
 
 This error arises from an incautious wording in the
 
 INFllINGEMENTS 39 
 
 judgments of some cases, where the defendant has been 
 found guilty of infringement or the reverse. The judge 
 has stated, e.g., that there was piratical copying on the 
 ground that in the case before him (say) three whole 
 bars had been reproduced witli practical identity. Such 
 remarks have not been intended as a statement of any 
 hard and fast rule of law as to quantity, but merely as 
 pronouncing that that number of copied bars existed in 
 the particular case, and that under the surrounding cir- 
 cumstances it amounted to an infringement. 
 
 It is hardly necessary to state that citations of phrases 
 reproduced in a concert programme for the purpose of 
 illustrating comments on the whole composition may be 
 made with impunity ; the same observation would apply 
 to the case of extracts for the purpose of honest criticism, 
 a point analogous to a similar rule in reference to literary 
 matter which is thoroughly well settled. The writer is 
 not, however, aware of any actual decision in reference 
 to music. 
 
 (13) One might copy from certain compositions, and in- Saunders 
 deed from some classical ones, passages containing several 3 Myine ani 
 bars, without actually laying oneself open to legal process. Craig7ii. 
 The symphonies of Haydn, and many pieces of Handel, 
 and of other diffuse, though powerful composers, contain 
 passages which merely reflect the feeling of the age, and 
 are, so to speak, common form ; and even assuming for 
 the sake of illustration that the whole works in question 
 were entitled to existing copyright, such isolated passages 
 could be substantially reproduced with impunity. The 
 copyist could successfully plead that the bars taken had 
 not in themselves individuality, but were only significant 
 and characteristic when taken with the context, and 
 were inserted for the purpose of completing, from the 
 point of view of construction, the symmetry of the 
 movement. A common source is a good defence. 
 
 Handel himself, writing in an age when musical 
 composers' rights were hazily understood and languidly 
 enforced, dipped deep into the fountains which Stephani, 
 Purcell, and others had endowed with living water. 
 Musical calculators and students say that even if a 
 term of copyright were still running to protect Israel in 
 Egypt, at least one-third of the themes contained in that 
 noble work could be appropriated by anyone without 
 danger of legal proceedings by the Great Saxon or his
 
 40 MUSICAL COPTKIGHT LAW 
 
 representatives, inasmuch as be himself was not the 
 first inventor, but only the marvellously skilful adaptor 
 of those themes. This does not, however, apply to the 
 contrapuntal development of the stolen motives which 
 was Handel's own workmanship, which could not law- 
 fully be copied, certainly not as applied to the same 
 motives ; probably not if substantially reproduced in 
 connection with similar themes in a new piece. 
 
 This "eccentricity" of a giant is only mentioned here 
 for the purpose of differentiating it from the common- 
 form-passages before alluded to. A composition of con- 
 siderable length from which the author has sought 
 scrupulously to exclude every progression, every phrase 
 which is not new and characteristic, conveys to the 
 hearer the impression of laborious and over-loaded work. 
 Relief in the form of appropriate arpeggio or varied 
 scale-business is not only welcome, but almost necessary. 
 The skill which is used by the classic writers in intro- 
 ducing conventional episodes in such a manner as to 
 work them into the connected whole, is quite sufdcient 
 to put to silence any narrow-minded critic who should 
 take out and condemn such passages as commonplace. 
 (14) Instances of these conventional interpolations 
 See Mozart's usefully fitted into the whole mosaic, so as to round off 
 Symphony^ a period, are easily given. One familiar one is a forte 
 inEt>, last passage of about eight bars occurring in the early part 
 16th bar and of the finale in many of Haydn's, and in one or two 
 eighUsar^s. of Mozart's symphoiiies, as a supplement to the Haupt- 
 giostofl^x" ^^^^ (first motive). This is mentioned here with par- 
 thekeyat ticularity bccausc it illustrates the sort of matter which, 
 mencement if Copied, would not justify legal complaint, unless so 
 concerto'^for l^-i'g© ^ quantity were taken as to amount to an appropria- 
 pianocBeeth- tion of the composcr's skilful design and structure. As 
 another opposed to this, it might well be that the unauthorised 
 
 Ap^ertinent copying of three or four bars of the actual melodic theme 
 few b^rs of ^ ^^ ^ Symphony or sonata movement would amount to 
 mere ver- piracy, where they are stamped with individuality, and 
 in t1fe°fa8t" form part of the very foundation of the whole movement. 
 ™ciufmann's^ It is hardly necessary to observe that the copying of 
 B^iT^Aire^ro ^^ small a quantity as the first eight notes of Beethoven's 
 animato, C minor Symphony, which were intended to denote the 
 se^qO.^ ^ knocking at the door by destiny, could hardly be copied 
 without exposing the copyist to punishment for infringe- 
 ment. It is aasumed in this, and the analogous illustra-
 
 INFRINGEMENTS 41 
 
 tions above, that there is a subsisting copyright, though, 
 of course, i?i fact, the protection in Beethoven's time, if 
 any, was of the most shadowy kind and would have long 
 since expired. Music of the past is here cited because it 
 furnishes more striking exemplification of what is intended 
 to be here described, than modern compositions can do, 
 for the modern school strains to avoid, as a disgrace, any 
 single phrase which is not strikingly original, even to the 
 extent of strugghng to produce new chords, with what 
 success, as regards the artistic results, may be questioned. 
 
 (15) In some cases great composers, other than Handel, 
 have not hesitated, without acknowledgment, to utilise 
 well-worn themes of unusual beauty as the leading subject 
 of a work. To repeat a practical test given above. Bach 
 or his representatives would have been ill-advised to sue 
 a copyist of the first subject, telling and melodious as it 
 is of the Fugue in E major, in the second book of " the 
 forty-eight." The defendant would have thrown in his 
 teeth that this charming phrase, so tempting to a contra- 
 puntist, had been consecrated by Handel in his chorus, 
 " Then round about the Starry Throne," and had gained 
 new vigour from change of air when Mozart introduced 
 it into the concert-hall, through the medium of the fugal 
 movement, in his so-called " Jupiter Symphony." 
 
 (16) By way of pursuing the theme, " quantum versus chatterton 
 value," one should bear in mind the pithy dictum of Lord appea^^clses 
 Hatherley in the "Wandering Jew" case. "Part does 483. 
 
 not mean particle," i.e., when the statutes or reported 
 cases speak of "a part" copied being an infringement, 
 they mean a substantial part. In the case in question, 
 the scenic effect and stage business connected with the 
 appearance of the " Wandering Jew," and the apotheosis 
 which concluded the drama, were introduced by the 
 defendant, from the drama of which the plaintiff in 
 the case (one Lewis) was the author. These episodes 
 were not held to be of sufficient importance to justify an 
 action, and this on the ground of the unsubstantiality in 
 quantum and value of the matter taken. The fact that 
 the plagiarism was of situations and scenic effects was no 
 factor in the decision, w'hich assumed what is, no doubt, 
 the law, that such matter, when copied, is as much a 
 subject for an action as spoken words. 
 
 The composer or his publisher will have no difficulty in 
 applying the principle of this case to music.
 
 42 MUSICAL COPYRIGHT LAW 
 
 (17) Colourable alterations, as the lawyers call them, 
 that is to say, changes of words, or slight alterations of the 
 order of narration in literature, are usually made for 
 purposes of disguise, but rarely escape the scrutiny of the 
 advocate, and intensify the crime of copying and its 
 punishment. 
 
 (18) In music the same principle applies ; whether 
 there is substantial identity is, in each case, a question of 
 fact, and often a very difficult one. In a slow movement 
 a change of time from f to f may hardly make any differ- 
 ence except to the eye ; the sentiment may remain the 
 same. In an allegro number, on the other hand, the 
 whole feeling and character may be thus altered. In 
 some of the airs with variations, in violin and piano 
 sonatas by Beethoven and Mozart, a change of time and 
 rhythm so disguise the theme as to produce a totally 
 changed sentiment. Where such an alteration is made 
 by an infringer in order to render detection more difficult 
 by embarrassing the tribunal called on to decide the 
 question, "is there, or not, substantial identity," what 
 is the judge to do ? The notes before him are mainly the 
 same, but the effect is different ; a new idea is introduced, 
 which, if the use of the notes had been made with the 
 permision of the owner, would have entitled the arranger 
 to protect the musical treatment, added counterpoint, 
 &c., constituting an original and ingenious development 
 of the melody. It would seem that if the theme contains 
 new and striking intervals and contains a characteristic 
 and strongly marked progression, which is copied, no 
 alteration, not absolutely fundamental, ought to protect 
 the copyist, who ought to suffer for approaching too 
 nearly the line where a fair use of old materials ends and 
 servile imitation begins ; but, as has been already pointed 
 out, there are phrases consisting of arpeggios or fragments 
 of scale passages, which are made out of materials so 
 conventional that the composer who has written, or the 
 publisher who has published, a piece founded on a theme 
 so constructed, would be rarely safe in suing an infringer 
 unless, indeed, the imitation were, 7nodo ac formd, iden- 
 tical with the original. He would be sure to find that his 
 adversary would rout out old precedents as like, or nearly 
 so, to the plaintiff's theme, as that theme was to his own. 
 
 (19) This is exactly what happened in the case of the 
 music hall air, " Oh ! Marguerite" which is, in great
 
 INFRINGEMENTS 
 
 48 
 
 measure, constructed of broken chords. The ostensible 
 owner desired to sue an infringer who had taken sub- 
 stantiaUy the same notes. It was pointed out to the 
 owner by his counsel that, from the very construction 
 and nature of the tune, it was certain that precedents 
 would be found sufficiently like it to answer and fore- 
 stall any argument founded on supposed originality. The 
 owner persisted in suing, and the defendant at the trial 
 unearthed more than one theme as like that of the 
 plaintiff as was the defendant's piece. And the antici- 
 pating motive on which the case turned (though this did 
 not actually come out before the Court) was a passage in 
 a serious cantata, in slow time, and wholly different in 
 feeling from the music hall ditty, but consisting of nearly 
 the same notes. 
 
 (20) Examples of diffuse motives capable of compres- 
 sion, and formed out of such familiar materials that 
 hardly any imitation, not involving absolute identity, of 
 the whole or nearly so, would be punishable, might be 
 multiplied indefinitely. A well known passage occurs to 
 the writer as illustrating this practical truth. 
 
 Overture to Semiramide. Rossini. 
 
 Allegro. 
 
 Supposing a copyist, either intentionally or not, gave 
 to the world the following, either with the same, or an 
 analogous, commou form accompaniment. 
 
 Allegro. 
 
 ^^7 t-^ 
 
 \ ' H J— J 
 
 i 
 
 =^ 
 
 This is Rossini's phrase with only the repetition notes 
 given to the violins played singly, instead of eight times 
 each. Would that be held an infringement ? 
 
 If the writer's memory be not at fault the omission 
 of the " ron-ron,'' brings the phrase into dangerous 
 relationship to the old air, " Life Let Us Cherish." But
 
 44 MUSICAL COPYRIGHT LAW 
 
 whether this similarity or not be well founded, the 
 question remains, would the mere dropping of the 
 brilliant violin conventional phrase (i.e., musically speak- 
 ing, the omission of a cypher) shelter the taker from 
 punishment ? The mutilated phrase would sound abso- 
 lutely different from the original to an uneducated ear. 
 
 In every case where there is not absolute indentity, 
 the infringement is a question of fact. 
 
 (21) One is often told in cases of literary copyright 
 that the reproduction by a supposed copyist of a mis- 
 taken reference, or of a bad conclusion of law occurring 
 in the original is a good indicium of piracy where the 
 colourable disguise is otherwise difficult to penetrate. It 
 is not quite certain that something of the same sort might 
 not occur in music, where the unconscious reproduction 
 in an otherwise doubtful case, of a rasping false relation, 
 or an unresolved discord, might make conviction more 
 easy. " Why he has actually copied the dreary con- 
 secutive fifths in the third bar of the original," one can 
 fancy a musically-informed judge saying. " A man who 
 perpetuates such excruciating false harmonies deserves at 
 least to be refused his costs, even though the theft may 
 be too unimportant for me to grant an injunction, or 
 give the plaintiff damages." 
 D'Aimaine (22) The Writer cannot help repeating the important 
 rYoung°an^' axiom that change of form is no defence if a substantial 
 CoUyer, 288. pa^t ill quantity or value be taken. An organ-piece may 
 be infringed if its leading motive occur in a subsequently 
 published song, a form of piracy of which the author 
 was once a victim ; so the airs of an opera used as 
 quadrille-motives would be a valid cause of action The 
 Russian National hymn has been published as a valse ; 
 also "The Lost Chord." A good many years ago an 
 erudite musician, named de Lacy, composed a set of 
 quadrilles founded on airs from Handel's sacred oratorios. 
 In all these cases, if the term of copyright in the 
 original had expired, or the arrangements were made 
 with permission, there would be sufficient invention in 
 the strangely new dress which the well-known subjects 
 were made to don, to entitle the pasticcio to protection; 
 but on the other hand, the use of the motives for the 
 eccentric purposes mentioned if unauthorised, and the 
 subject of unexpired copyright, would be an infringement 
 of the original author's right.
 
 INFRINGEMENTS 
 
 45 
 
 (23) The following passages are taken from the 
 interesting journal, The Musical Times, published at the 
 premises of Messrs. Novello. They are only cited here 
 as instances of the extent to which grotesque perversion 
 of a motive from the intention of the original composer 
 may be carried, and, collaterally, as illustrating the 
 question of infringement of copyright (which had pre- 
 sumably expired, so that the perverted originals were no 
 longer entitled to protection on that ground). 
 
 The following was apparently intended as a playful 
 adaptation of the favourite ''Lied in A, No. 30" (com- 
 posed by Mendelssohn during one of his visits to London 
 at Denmark Hill on June 1, 18'12). 
 
 No. I. Piccolo ildicato.. 
 
 ^%^=r^k r/-'^ 
 
 f* - JL 
 
 i 
 
 M 
 
 Violin I 
 
 p " C^ 
 
 ^m 
 
 'g pik- 
 
 ^ 
 
 p 
 
 p- rf.rA^fv^. i - ^.i. \ 
 
 i 
 
 w 
 
 i* 
 
 e== 
 
 i 
 
 ^ 
 
 ^n I r £[-i g" 1 I K gf i gj 
 
 1 g 1 
 
 &c. 
 
 ^ 
 
 ^ 
 
 P 
 
 It is clear law that if the copyright had been still sub- 
 sisting, the unauthorised production of this melody might 
 have been restrained, notwithstanding the changes of 
 time, rhythm and accompaniment, though they are so 
 skilfully adapted to the original that even a musician 
 hearing the composition in its altered form for the first 
 time, and being ignorant of the original, might not 
 suspect that it was a travesty. 
 
 The point is that the succession of notes forming the 
 melody of the so-called " Spring Song " is reproduced, 
 though in triple or valse, instead of quadruple time. On 
 the other hand, if such an improbable tbing^can be sup-
 
 46 MUSICAL COPYRIGHT LAW 
 
 posed as that Mendelssohn should have authorised the 
 outrage on his "Lied," or if the copyright had expired, 
 the Musical Times, or the arranger could have sued 
 successfully any copyist of the phrase given above, as 
 in legal contemplation there is sufficient invention in the 
 change of form to merit protection. 
 
 (•24) Quotations for the purpose of honest criticism are 
 allowed ; but, on the other hand, the innocent or praise- 
 worthy character of the motive is not generally a defence 
 to an action for infringement, nor is the absence of gain 
 NoveHoit/sws to the infringer. This is shown by a case where MS. 
 cl'slm^^ copies of a copyright piece of music were distributed, 
 exclusively and gratuitously among the members of a 
 musical society, yet an injunction was granted. 
 
 (25) Where an author has parted with his copyright in 
 
 a piece of music the assignee may not substantially alter, 
 
 much less mutilate it and so give it out to the world as 
 
 the work of the author. An action will lie by the author 
 
 gilbert wmw against the assignee to protect the reputation of the 
 
 LawTi'n^sf former, which would be injured by the sale of inferior 
 
 Sep. 28, 1889. matter. Sometimes mutilation is the work of a pirate 
 
 and not an assignee, and then the Court will act as 
 
 severely as its procedure allows. A more difficult case 
 
 would arise where an assignee, having made unauthorised 
 
 and objectionable alterations, sells a piece anornjmously. 
 
 Such a combination of facts has occurred in practice but 
 
 has not been litigated. The writer has a firm opinion 
 
 that an action would lie, the piece might be recognised 
 
 through individuahty of style in the unaltered part, and 
 
 the composer ought to be saved from the mortification 
 
 of seeing a garbled version of his composition made 
 
 pubhc, though without the author's name being published. 
 
 The miserable periodical called " Pianista," remembered 
 
 by some of our readers, was a merciless hash of some 
 
 popular operas, " William Tell," of Rossini, " The 
 
 FrophHe" of Meyerbeer, and other works. The Courts 
 
 interfered to restrain this publication which combined 
 
 piracy with murder. 
 
 (2G) Though not strictly within the Hmits of a work or 
 musical copyright, the question whether to make a trans- 
 lation of a copyright literary work is an infringement is so 
 important to composers of songs that some mention must 
 be made of it here. It cannot be said to be quite free from 
 doubt, as there is some loose dicta of the judges pointing
 
 INFRINGEMENTS 47 
 
 to an opinion in the negative, but they were given at a 
 time when the protection was more lax than at present, 
 and the writer has personally little doubt that the general 
 principle would apply, and that (as in the case of trans- 
 position from one key to another) the taking and copying 
 substance, though in an altered form, would be held 
 pn'acy. 
 
 In the Berne Convention the rights of an author to 
 protect himself against infringement by way of trans- 
 lation have been jealously protected, subject to a limitation 
 as to the duration of the right. The whole of the subject 
 is dealt with in detail when international copyright is 
 treated of hereafter. 
 
 (27) The piracy in recent years of copyright musical 
 compositions and the musical anarchy which, unfortu- 
 nately, still reigns in this respect, form a disgraceful epoch 
 in the history of English jurisprudence. 
 
 Abuses have arisen which would be impossible in any 
 other civilised state, and which hold Great Britain up to 
 derision throughout the civilised world. 
 
 In the closing years of the last century some unscru- 
 pulous person invented a scheme for robbing the pro- 
 proprietors of copyright (whether composer or publisher) 
 of their just gains. 
 
 Wretchedly-got-up versions of songs, carefully chosen 
 from among those which have gained popular favour, 
 are secretly printed and secretly stored in cellars. A few 
 copies are handed out to irresponsible hawkers and are 
 offered for sale by them at a penny or twopence a copy 
 in populous thoroughfares. If interfered with, the dozen 
 or so copies which each hawker has with him are given 
 up. The loss to the thief is inconsiderable. Another 
 hawker in the next street renews the stock and the same 
 game is played out daily. 
 
 (28) Another form of the fraud is the house-to-house 
 distribution of lists of pieces of music, from which the 
 householder can choose, and the supply of the pieces 
 chosen at low prices. No printers name or address is 
 found on any of the pieces sold. The people who are 
 responsible for the transaction remain in the background, 
 and in this way many thousands of copies of any popu- 
 larised pieces of music are got rid of and the legitimate 
 sale of the publication almost, if not entirely, ceases. 
 There appears to be an idea in many people's minds that
 
 48 MUSICAL COPYRIGHT LAW 
 
 these pirates deserve some sort of questionable credit for 
 their ingenious evasion of the law, thereby defeating a 
 vicious monopoly. It is time to undeceive them in this 
 respect. Audacious lying ; concealment of addresses, 
 and scuttling away are the laudable means by which 
 these street buccaneers carry out their ends. Ingenious 
 evasion or device there is none, and their boldness would 
 not have succeeded but for the supineness of the Govern- 
 ment, the unreasoning sympathy which appears to exist 
 in the minds of a few short-sighted politicians, and the 
 dishonesty of purchasers who knowingly buy the spurious 
 articles. The effect of this wholesale robbery is dis- 
 astrous. 
 
 The publishers (leaving out of the question the most 
 wealthy and old established houses, whose capital enables 
 them to stand the brunt of the competition on unequal 
 terms) are many of them hardworking tradesmen who 
 have invested their small capital in getting together a 
 business, and in purchasing the copyright of one or two 
 songs which offer a probability of success, and they are 
 ruined wholesale. They pay singers to bring their songs 
 before the public, and advertise very largely, only to find 
 that they have been spending their money for the benefit 
 of a pack of thieves, who filch the whole of their profits 
 and entirely stop their sales. Unfortunately the votes 
 of these deserving, but politically insignificant, sufferers 
 can be treated as a " quantiU 7iegligeable." 
 
 The copyright bill discussed before Lord Monkswell's 
 Committee contained a clause inserted by the writer 
 conferring upon the owner of copyright power to seize 
 pirated copies of his works. It also gave him power, 
 without applying to any Court, to authorise a police 
 constable to seize the pirated copies which might be 
 taken before a Court of summary jurisdiction and 
 destroyed. 
 
 The writer's clause also contained words enabling the 
 Court to act ex parte ; (that is, on the evidence of the 
 complainant alone, without the necessity of summoning 
 the alleged infringer) ; to make an order for destruction 
 in the absence of the latter. The clause also contained 
 a provision inflicting a penalty for every piratical sale. 
 viTch.'is. Had these two last provisions been allowed to remain, 
 the whole mischief caused by the street pirates would 
 have been remedied ; but the words inflicting penalties 
 and giving power to make ex parte orders were struck 
 
 2 Edwd.
 
 INFRINGEMENTS 49 
 
 out, and the Bill eventually became law in a form which 
 is useless. The Statute in question is printed verbatim 
 in the appendix. In consequence of the utter failure of 
 this admirable effort of the Legislature, a Bill was pre- 
 pared and put into the hands of a private member 
 containing clauses necessary to remedy the abuses. The 
 measure was stifled by the efforts of a member for a 
 Scotch district, who utilised the technicalities of Parlia- 
 mentary procedure to throw the matter over another 
 session. After endless efforts on the part of those who 
 wished to see justice done, a Parliamentary Committee 
 sat upon the matter, the Scotch member being nominated 
 as one of the members ; and again the real merits of 
 the case were stifled, both in the proceedings before the 
 Committee and before the House of Commons. In the 
 latter place the procedure which stops short of the appli- 
 cation of closure to a Private Members' Bill enabled the 
 matter in question to be thrown over to yet another 
 session. 
 
 (29) Unauthorised performance of copyright music 
 either by singing or playing is not an infringement of 
 the exclusive right of multiplication of copies or " copy- 
 right." Copyright and performing right are separate and 
 distinct rights, belonging, it may be, to different persons. 
 
 (30) Following out this principle, it has always been Compare the 
 the law that prior performance outside the British ui^ted*^^ 
 Dominions does not in any way affect the British fifj^f^i^^^f" 
 
 COpyneht. the chapter 
 
 ^•' ° on that 8ub- 
 
 Eemedies. j®"^* "'•'''""• 
 
 (31) It will not be without its use to add a few words 
 of practical advice to the inexperienced reader, whether 
 composer or publisher, who happens to see or hear a 
 song, piano-piece, or any other composition which appears 
 to him piratically to resemble, or to contain one or more 
 passages identical or nearly so w^ith, a composition of 
 his own or some part of it. He should first apply the 
 axioms contained in the preceding chapters as to necessary 
 quantum and value of matter taken ; and then he should 
 consider the importance to himself of the theft, having 
 regard to the actual sales of his work and the probability 
 of such sales being reduced by the rival publication. 
 
 Should the composer discover that the rival piece has 
 been published since the appearance of his own, and 
 
 4
 
 50 MUSICAL COPYRIGHT LAW 
 
 decide that it is worth his while to stop the sales of the 
 former, he should carefully consider whether it is reason- 
 ably probable that friendly applications are likely to 
 produce an amicable settlement. Should the facts, or 
 his knowledge of his adversary, lead to the inference that 
 the latter has infringed under an honest mistake, either 
 of law or fact ; or that any verbal communications, direct 
 or through the medium of friends, might bring about 
 concessions by which litigation might be avoided, the 
 reader would do well to write a warning that a writ will 
 be issued if the infringement be persisted in. 
 
 If, on the other hand, the offence is a repeated one, 
 or is glaringly wilful, or appears to be founded on an 
 obstinately wrongheaded view of rights, and if at the 
 same time an application by letter might simply operate 
 as a warning to the infringer to place the property in 
 question out of reach of the law, or himself to elude 
 service, the author is bound to advise the issue of a 
 writ and notice of motion for an injunction before a 
 Chancery Judge, without previously commencing a corres- 
 pondence ; that course often creates complications which 
 embarrass when the letters come to be read at the bearing; 
 offers are made to compromise, ingeniously illusory, yet 
 plausible, confusing the issues between the parties, and 
 making it difficult to sue without risk of defeat on the one 
 hand, or to withdraw without substantial loss on the other. 
 There is no hardship on a wilful defendant in striking 
 a blow at once, as the latter can make any offer of 
 submission after writ issued before substantial costs are 
 incurred. 
 
 The authorities show that it is not necessary in point 
 of law for an injured party to threaten in writing before 
 suing, but if an action has been hastily brought, and the 
 conduct of the plaintiff show an unduly litigious dis- 
 position, judges are apt to twist the law and use their 
 discretionary power of dealing with the costs in such a 
 manner as to make him regret his rashness. He nmst 
 adapt the foregoing axioms to the circumstances of his 
 case, weigh tbe merits, and act accordingly. 
 
 The writer cannot help adding that, when in practice, 
 he pushed to its limits the desire to prevent litigation 
 by advising correspondence before suing ; but the retro- 
 spect convinces him that in some cases tbe result hardly 
 Arnendrnent ^^^ justice to his client. In somc cases demand in writing 
 b'°V^ n*!^ ■'^ made obligatory by Statute.
 
 INFRINGEMENTS 51 
 
 The young composer should carefully guard himself 
 against the tempting hope that his compositions may 
 gain in publicity by an action, as sooner or later the 
 experienced judge would unfallibly scent out such a 
 motive, and set his face against the Court being made 
 the arena for a mala fide contention. 
 
 (32) The experienced legal practitioner will, no doubt, 
 endorse the opinion of the writer that except under very 
 special circumstances an order for an injunction should 
 not be applied for to the High Court ex parte, that is 
 without citing the defendant to appear. 
 
 Assuming that our reader will not be so rash and 
 suicidal as to conduct his case in person, we may safely 
 leave him at this point. 
 
 (33) No delay short of the Statutory period of limita- 
 tion will bar a plaintiff's remedy unless his conduct 
 amounts to leave and license to the infring' v. 
 
 The Copyright Amendment Act, 184*2, enacts that all 
 legal remedies thereunder shall be applied for within 
 a year after the offence (with an exception not connected 
 with music). The remedies in respect of unpublished 
 music, or at all events some of them, are perpetual, and 
 have no limit of duration, except the six years' limit 
 under the ordinary Statute of limitation, where that 
 applies. 
 
 Short of the statutory year in cases under the Copy- 
 right Amendment Act, 1842, and the six years in cases 
 outside the Statute, no mere time will be a bar. 
 
 For instance, supposing that an infringer prints piratical 
 copies during nine calendar months, even to the know- 
 ledge of the composer, the latter has three months, from 
 the date of each separate offence, on which to bring his 
 action, unless he has done some act amounting to active 
 consent. 
 
 The same is the case, mutatis imitanclis, with reference 
 to offences not coming within one of the Sections of the 
 Copyright Acts, as in the cases of non-published MS., to 
 which the common law remedies apply. 
 
 The statutory bar runs from the particular offence com- 
 plained of, irrespective of previous ones. A favourite 
 maxim of the late eminent Master of the Kolls, Sir 
 George Jessel, was that where the Legislature has pre- 
 scribed a time for sumg, the parties cannot shorten the 
 time, or set up any extinguishment of right short of a
 
 52 
 
 MUSICAL COPYRIGHT LAW 
 
 Copyright 
 Amendment 
 Act, 1842, 
 Section 23. 
 
 Sections 15 
 and 17. 
 
 It will be 
 remembered 
 that "book" 
 includes 
 "music." 
 
 Section ,17. 
 
 release or assignment by the person entitled to complain. 
 As the late Mr. Justice Kay used to say, " if a man cuts 
 sticks out of my wood no continuance of wrong doing 
 will give him ' an easement (right to do so).' I may, 
 after any merely passive delay, intervene to stop him." 
 
 (34) AH copyright music pieces, of which entry has been 
 made in the register, and which are unlawfully printed or 
 imported, without consent in ivriting, of the proprietor, 
 are deemed his property, and he may, after demand in 
 writing, recover them, or damages for the retention of 
 them. 
 
 (35) The two sections of the Copyright Amendment 
 Act, 1842, which relate to importation and exportation, 
 are full of difficulty and question. Section 15 applies : — 
 
 Firstly, to the case where any person shall print in 
 any part of the British Dominions, for sale or exporta- 
 tion, any copyright book without the consent in writing 
 of the proprietor. 
 
 Secondly. Where any person shall import, for sale or 
 hire, any copyright book so having been unlawfully 
 printed from parts beyond the seas. 
 
 Thirdly. Where any person shall, with knowledge that 
 the book is unlawfully printed or imported, sell, publish, 
 or expose to sale, or hire, or have in his possession for 
 sale or hire, any such book so unlawfully printed or 
 imported, without consent of the proprietors. 
 
 Such offender in either of these cases is liable to be 
 sued by the proprietor. 
 
 Another Section provides that it shall not be lawful for 
 any person, not being the proprietor of the copyright, or 
 authorised by him, to import into any part of the British 
 Dominions, for sale or hire, any printed copyright book 
 first composed or written, or printed and published, in any 
 part of the United Kingdom, and reprinted out of the 
 British Dominions. 
 
 If any unauthorised person shall import, or bring for 
 sale or hire, into any part of the British Dominions con- 
 trary to the intent of this Act, or shall knowingly sell, 
 publish, or expose to sale, or let to hire, any such book — 
 (i.) Such book shall be forfeited, 
 (ii.) Such book shall be seized by any officer of 
 Customs or excise for destruction. 
 
 (iii.) A penalty is imposed of ten pounds and 
 double the value of every copy of such book.
 
 INFRINGEMENTS 63 
 
 There would seem to be nothing in Sections 15 and 17 
 to hmit their scope to published works. It is, no doubt, 
 the popular view of the Statute, as a foregone conclusion, 
 to hold that none of the statutory remedies apply to 
 unpublished matter, but only to those works which have 
 passed out of the region of common law protection and 
 become subject to the term of duration limited by 
 Section 3. It is true that the remedies in Sections 15 
 and 17 only apply to a book in which there shall be 
 "subsisting copyright;" but Section 2 recognises in 
 terms " the interest of an author in copyright before pub- 
 lication ; " and it may well be that the term of duration 
 created by the Section 2 is made to start "from first 
 publication," merely as a convenient mode of fixing a 
 commencement for the term, and is not intended to limit 
 the statutory jurisdiction to published works. Section 17 
 applies to " any printed book first composed or written or 
 printed and pubhshed," which can only be read gramma- 
 tically as meaning that "printed and published" is one 
 alternative, and " composed or written " (and therefore not 
 pubhshed) another. A book may be one " in which there 
 is subsisting copyright " and yet be unpublished, for the 
 author may have " an interest in its copyright before pub- 
 lication." This point maybe of importance in cases of statute of 
 unauthorised importation of music, printed like sometioni^" 
 musical compositions of the late Prince Consort, and, 
 indeed, many others, for the most restricted private 
 circulation and therefore " unpublished." It would seem 
 improbable that the Legislature should have intended to 
 allow such works to be imported, or to have left the 
 owner to a doubtful and obscure common law remedy. 
 No doubt it may be argued that, having regard to the 
 mode in which Statutes are put together piecemeal, no 
 consistent intention at all ought to be imputed to the 
 Legislature ; but the Courts have not gone so far as to 
 hold this. The point seems never to have been noticed. 
 
 If the writer's suggestion be correct that Sections 15 
 and 17 comprise unpublished works, the remedies under 
 the 15th and 17th Sections would seem to be perpetual 
 and not limited to the term created by Section 3. 
 
 The form of multiplication of copies contemplated by 
 Section 15 and 17 is " printing" alone, and no other form 
 of multiplication is an offence : in this respect the 
 15th Section differs from the 2nd, which defines copy-
 
 54 MUSICAL COPYRIGHT LAW 
 
 right to mean " printing" or otherwise multiplying copies " 
 of any book, &c. 
 39 and 40 (36) In the Customs Consolidation Act, 1876, Section 42, 
 tions'42T44, a Hst of books, of which the proprietor has given notice, is 
 ^^- to be kept ; and under Sections 44 and 45 any person 
 
 having cause to complain of the entry of any book on 
 such list may apply to a judge in chambers to have such 
 entry expunged ; such lists are to be pubHcly exposed in 
 the Customs Houses in the several ports in the United 
 Kingdom ; and in case of the expiration of copyright in 
 any of the works notice in writing is to be given to the 
 Commissioners of Customs of the date of such expiration. 
 The books comprised in Section 42 are those " wherein 
 the copyright is still subsisting, first composed or written 
 in the United Kingdom, and printed or reprinted in any 
 other country, as to which the proprietor " . . . shall 
 have given to the Commissioners of Customs, a " notice in 
 writing" stating ?(;/ie;t the copyright expires. Such books, 
 if imported into the United Kingdom, may be forfeited 
 and may be destroyed or otherwise dealt with as the 
 Commissioners may direct. 
 
 The words requiring the notice to state " lohen the 
 copyright expires,'' seem, at first sight, in this Section, to 
 limit the scope to works subject to Section 3 of the Copy- 
 right Amendment Act, 1842, but are not conclusive, as 
 they do not necessarily apply to all books as to which 
 notice may be given, but may be only levelled at the cases 
 where there is terniinable copyright under Section 3. The 
 phrase would then read as though the words were (" in 
 cases where terminable copyright exists), then the notice 
 must comprise a statement as to when such copyright 
 expires." There would seem no reason why a notice 
 should not be given in reference to an unpublished work, 
 which is copyright, in a sense, as is shown by Section 2 ; 
 the notice then would be silent as to the time of expira- 
 tion, or would state that the copyright is perpetual. 
 
 The word "published " in Section 17 of the Act of 1842 
 is omitted in the table of prohibition, in the Customs Act. 
 In the former the words are " any printad book first 
 composed or written, or printed and published." 
 
 In the customs act the phrase reads " first composed, 
 or written or printed." 
 
 The whole importation sections and the remedies have 
 assumed great importance since the combination of the
 
 INFRINGEMENTS 55 
 
 greater number of European States, and of some others, 
 in the matter of reciprocal copyright. 
 
 (37) The question how far the penalty annexed by 
 Section 15 of the Copyright Amendment Act of 1842 
 excludes the jurisdiction under the earlier sections of 
 the Statute, or under the inherent jurisdiction of the 
 Court, has been noticed at the commencement of the 
 chapter on " Infringements." 
 
 Similar questions arise with respect to Section 17. In 
 all cases where a remedy by way of damages or penalty, 
 or forfeiture and destruction of piratical wares, is given, 
 the right to restrain by injunction the act which is 
 thereby branded as illegal, follows automatically. 
 
 (38) A question, however, already alluded to in this 
 chapter, which is raised by the language of both Sections 
 15 and 17, is whether where a remedy is given against 
 an infringer with guilty knowledge, this excludes that 
 remedy which would exist under other Sections against 
 an infringer, without guilty knowledge. There is no 
 decided case, it is believed, on this point, and Cooper Divisfonf'''' 
 versus AVhittingham (previously cited) falls short of it. p.50i. 
 
 It would seem reasonably clear that the condition in 
 Sections 15 and 17 of the Act of 1842 that "guilty 
 knowledge is necessary in order to entitle an owner of 
 copyright to sue in respect of certain given offences," is 
 inconsistent with the view that an innocent seller could 
 be struck at for similar offences under Sections merely 
 conferring right in general terms, and saying nothing 
 about guilty knowledge. The general must yield to the 
 specific.
 
 56 
 
 MUSICAL COPYRIGHT LAW 
 
 SECTIONS II. AND III. OF THE COPYRIGHT 
 AMENDMENT ACT, 1842. 
 
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 OFFENCES. 
 
 / (1) Any unpublished music written 
 by a British subject or an aUen 
 resident in British dominions,* 
 and as to which the infringe- 
 ment shall have occurred within 
 12 calendar months next before 
 the date of action brought. 
 
 (2) Any music first published within 
 the British dominions, or pub- 
 lished simultaneously with pub- 
 lication abroad, not longer than 
 42 3'ears last before the date of 
 infringement, and as to which the 
 infringement shall have occurred 
 within 12 calendar months next 
 before action brought. 
 
 (3) Any music first pubhshed within 
 the British dominions, or pub- 
 lished simultaneously with pubU- 
 cation abroad, not longer than the 
 period of 7 years from the death 
 of the author and as to which the 
 infringement shall have occurred 
 withm 12 calendar months next 
 before action brought. 
 
 (4) Any music first published after 
 the author's death and as to 
 wliich the infringement occurred 
 within 42 years from the date 
 of publication and withua 12 
 calendar months next before 
 
 \ action brought. 
 
 REMEDIES. — Action for damages and injunction. 
 
 Printing or 
 otherwise multiply- 
 ing copies of 
 
 • The limit as to the composer's nationality in the case of unpub- 
 lished music is a general deduction from the principle of decided 
 cases, and is not specifically laid down by any one in particular.
 
 INFRINGEMENTS 
 
 57 
 
 SECTIONS XV. AND XVII. OF THE COPYRIGHT 
 AMENDMENT ACT, 1842. 
 
 OFFENCES. 
 
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 (1) 
 
 (2) 
 
 (3) 
 (4) 
 
 Printing within British dominions any copyright music for 
 
 sale or exportation. 
 Importing for sale or hire from parts 
 
 beyond sea Any piece of music so 
 
 Selling or publishing )wwv, -u .r printed, whether pub- 
 Exposing or possessing - ^l^^J^J^^^ 
 
 for sale or hn-e > ° 
 
 (5) 
 
 (6) 
 (7) 
 
 iished or not. 
 
 
 Importing into British dominions for 
 
 sale or hire 
 Selling or publishing \ ^^.^^ ^^ .^ 
 Exposing or possessing j^^^^.f^^ ,' 
 
 for sale or hire ' * 
 
 (A) Any printed music 
 first composed or 
 written in the United 
 Kingdom and not 
 published. 
 
 (B) An}- piece of copy- 
 right music printed 
 and published m the 
 
 United Kingdom 
 and 
 (both as to A and B) 
 reprinted out of the 
 ^ British dominions. 
 
 REMEDIES. 
 
 As to numbers (1) to (4) Action for damages. 
 
 [Forfeiture and penalty of JGIO for each 
 offence and double the value of every 
 book imported, or knomngh^ sold, pub- 
 lished, or exposed to sale or let to hire. 
 
 As to all the numbers (1) to (7) an injunction. 
 
 As to numbers (5) to (7) -
 
 68 
 
 CHAPTER y. 
 
 (1) Definition of performing right simpliciter not wanted. (2) In the 
 case of unpubhshed work, it differs from copyright both as to its 
 birth and death. (3) Origin of right : whether perpetual till 
 performance. (4) When and how the right is cut down to a 
 term. (5) First performance het-e does not affect copyright here : 
 nor does first performance abroad do so. (6) First publication ; 
 effect of, on performing right. (7) Section 19 of the International 
 Copyright Act, 1844, considered. Meaning of publication. (8) 
 "The Colleen Bawn" case. (9) Boucicault versus Chatterton. 
 (10) Whether performance of music must be in " a place of 
 dramatic entertainment" to entitle the author to sue. (11) 
 What is a public performance within the Statute. (12) Copy- 
 right (musical compositions) Act, 1882. (13) Copyright (musical 
 compositions) Act, 1888. (14) Lessees and others, if liable for 
 piratical performance. (15) Improvisations. (16) Registration 
 before suing, to protect performing right. (17) Arguments against 
 the necessity of this step. (18) Clark versus Bishop. (19) Assign- 
 ment of performing right. (20) Assignment of performing right, 
 will not pass copyright. (21) " Part versus particle " qua per- 
 forming right. (22) Tabular form of rights and remedies. 
 
 PERFOEMING RIGHT. 
 
 (1) Performing right in dramatic literary property was 
 created by the Dramatic Copyright Act, 1833 (3 Wm. 
 IV. ch. 15). This enactment had no apphcation to 
 performing right in music. 
 
 By the 20th Section of the Copyright Amendment 
 5 and 6 Vic- Act, 18-42, after a recital that it was expedient to 
 ^oria, chap, ^^j^gj^^ ^q musical compositions the benefits of the 
 Dramatic Copyright Act, 1833, and of the now reciting 
 Act, it was provided that " the sole liberty of representing 
 or performing, or causing or permitting to be represented 
 or performed, any musical composition should be the 
 property of the author thereof. 
 
 The Legislature has not thought it necessary to define 
 "performance" or "performing right," except by a 
 wholly useless interpretation in the International Copy-
 
 PERFORMING RIGHT 59 
 
 ht Act, 1886, in which Statute, indeed, the word never 
 occurs elsewhere than in the definition itself. It might, 
 at first sight, seem as if the absence of a definition were 
 to be accounted for by the fact that the expression was 
 too simple and too easily understood to make one neces- 
 sary ; but questions have from time to time been raised 
 as to what degree of publicity must attach to an un- 
 authorised performa7ice before it constitutes an infringe- 
 ment of right ; " performance " simpliciter no doubt 
 speaks for itself, but what is " public performance " is 
 a question of great difficulty. Perhaps the draughtsman 
 of the Statute was wise in not defining " performance," 
 as being too obvious a word to require it, and " public 
 performance " as comprising varied facts impossible to 
 foresee. 
 
 It is now settled law that performing right in a 
 musical composition is infringed by any performance, 
 whether public or not, if unauthorised by the proprietor 
 of the right, provided that the performance is a sub- 
 stantial one, and is not too trivial for the law to take 
 notice of without absurdity. The authority for this pro- 
 position is Wall versus Taylor. The point is discussed at n Queen's 
 length hereafter. S'lS^io^'^''" 
 
 (2) Performing right in a work which has never been 
 performed is essentially different from copyright: different 
 in its birth, in the respects hereinafter stated, not neces- 
 sarily contemporaneous in its term of duration ; widely 
 different in the incidents of its life from first to last. In 
 spite of the wish of the writer to keep history out of the 
 body of this work, and to give in the baldest form a 
 statement of the rights and duties of composers and 
 publishers, he has found it hardly possible to fulfil the 
 task without introducing a sketch of the Statutes under 
 which those rights arise. Before proceeding to this it 
 is necessary to say that where the term " publication " 
 appears, the present writer means the term to be under- 
 stood in the strict sense of publication as a book. 
 
 The Legislature has frequently used the words "publish" 
 and "publication" in circumstances which give rise to 
 doubts whether those words are used in this strict sense, 
 or whether they are meant to include performance. 
 
 (3) As soon as a bar of music is composed the author 
 becomes automatically entitled to a perpetual right to
 
 60 MUSICAL COPYRIGHT LAW 
 
 prevent anyone from playing or singing his composition 
 without his authority/" 
 
 (4) If, and when the work is printed and pubHshed, the 
 perpetual performing right still remains intact, subject to 
 the Act of 1882 hereinafter mentioned ; but if performance 
 in public occurs the perpetual right is cut down to a 
 term similar to the term of copyright, viz., forty-two 
 years from the date of the first public performance, or 
 the lifetime of the author and seven years from bis death, 
 whichever shall be the longer period. It will be noticed 
 that while it is an infringement of the right to perform 
 or represent a musical composition anyiohere, perform- 
 ance in public is necessary to cut down the perpetual 
 right to a term. This seems to be the result of a succes- 
 sion of clumsily-drawn enactments. The Dramatic Copy- 
 right Act, 1833, provides, with reference to dramatic 
 pieces, that there shall be a perpetual exclusive right of 
 performance in the case of a work not printed and pub- 
 lished, and that when it is published the perpetual right 
 shall be cut down to a term of twenty-eight years. The 
 Copyright Amendment Act, 1842 (Section 20) recites that 
 it is expedient to extend the term of " the sole liberty of 
 representing dramatic pieces given by the Dramatic Copy- 
 right Act, 1833, to the full time by this Act provided for 
 the continuance of copyright, and to extend to musical 
 compositions the benefit of that Act and also of this Act," 
 it enacts that " the provisions of the Dramatic Copyright 
 Act, 1833, and also of this Act, shall apply to musical 
 compositions" and "the sole liberty of representing or 
 performing, or causing or permitting to be represented or 
 performed, any dramatic piece or musical composition 
 shall endure, and be the property of the author thereof 
 and his assigns, for the term in this Act provided for 
 the duration of copyright in books, and the provisions 
 hereinbefore enacted in respect of the property of such 
 copyright and of registering the same shall apply to the 
 
 * There would seem to be no ground for the view recently taken 
 by Mr. Justice Wills, in the case of Hardacre versus Purcell, that 
 performing right in an unperformed work is confined to the lifetime 
 of the author. Until this case, in which the remarks of the learned 
 judge were obiter, the proposition that performing right in an unper- 
 formed work is perpetual has been universally accepted and has never 
 been questioned.
 
 PERFORMIKG BICtHT 61 
 
 liberty of representing or performing any dramatic piece 
 or musical composition as if the same were herein 
 expressly re-enacted and applied thereto, save and except 
 that the first public representation or performance of any 
 dramatic piece or musical composition shall be deemed 
 equivalent in the construction of this Act to the first 
 pubHcation of any book." 
 
 A few years ago a confusion existed in the minds of 
 both legislators and judges between " publication " and 
 " performance " in the case of dramatic and nmsical work. 
 In construing the Statutes in connection with performing 
 right the tendency of lawyers has generally been to read 
 the phrase " in the construction of this Act " as though 
 it were " in the construction of the Dramatic Copyright 
 Act, 1833, and of this Act." The effect of this construc- 
 tion is, as above stated, viz., that on first performance 
 (not as formerly, on first pubHcation), the perpetual right 
 is cut down to a term, in other words, first perform- 
 ance, in the case of a musical composition, has an opera- 
 tion on the performing right similar to that which 
 publication of a book has on copyright. 
 
 In the Dramatic Copyright Act, 1833, it would seem, 
 from the occurrence of the word "printing" in connec- 
 with " pubHcation," as if the latter word were intended to 
 be taken in its strict sense, notwithstanding the anomaly 
 of making the term in performing right dependent on an 
 event wholly collateral to it and falling within the domain 
 of copyright. In the Copyright Amendment Act, 1842, 
 performance is, in clear terms, separated from copyright. 
 
 (5) A result of the complete separation of copyright ^.^-»fBoo8oy, 
 from performing right is that a first performance of |i ^^?^j^®^y 
 music, either in Great Britain or abroad, does not in 232. 
 
 any way affect copyright in this country. 
 
 (6) First pubHcation of music as a book, either in 
 Great Britain or abroad, does not, in itself, affect per- 
 forming right in Great Britain. Since, however. Wall's 
 Act hereinafter stated any Copyright owner who wishes 
 to retain performing right, is required to reserve, by 
 notice printed on the title page of every published copy, 
 
 that the right of public performance is reserved. No FuUer tvrs»s 
 penal consequences are, in terms, imposed upon the w^n^Ji.°Gar- 
 author who fails to comply with this requirement ; but '^^^ S'sSs 
 according to the opinion of a learned judge in a recent 2 Queen's ' 
 case, the right cannot be retained if the direction in the 8ion?44il^^' 
 Statute is not complied with.
 
 62 MUSICAL COPYRIGHT LAW 
 
 (7) First performance of music abroad, unless in a 
 country with which Great Britain has a Convention, 
 destroys performing right in this country. Section 19, 
 of 7 Vict., chap. 12, provides that neither the author of 
 a book, nor the author or composer of any musical com- 
 position ''first published" outside the British Dominions, 
 "is to have any copyright, or any exclusive right to the 
 public representation or performance thereof, otherwise 
 than such (if any) as he may become entitled to under 
 this Act." 
 
 The meaning of the expression " first published" has 
 been largely discussed. It can hardly be taken literally, 
 for the legal decisions all clearly establish the proposition 
 that publication in book form of a dramatic piece or 
 musical composition has no effect upon performing right. 
 It can hardly be suggested that it was intended that 
 pubHcation as a book outside the British Dominions 
 should affect performing right within them, when it is 
 unquestionable that publication as a book within them 
 would not affect British performing right. It is probable 
 that the word " publication " was used by that dignified 
 abstraction " the Legislature," without due considera- 
 tion of its limited meaning. In decided cases the word 
 has been given a double meaning, according to the subject 
 matter which was under consideration. In the case of 
 a book it has been construed in its strict sense ; in the 
 case of a musical or dramatic piece it has been construed 
 as performance. 
 1 Hemming (Q) In the " Colleen Bawn " case, Boucicault versus 
 597. * Delafield, where the subject was a play, which gained 
 
 its enormous success mainly through the " tremendous 
 header-scene," the well-known actor, the late Mr. 
 Boucicault, sued to restrain the defendant from perform- 
 ing his play, the " Colleen Bawn," in England. He had 
 played it for the first time in the United States, and it 
 had been published as a book in England, but until the 
 performance by the defendant, it had never been played 
 in the British Dominions. No point was made of the 
 fact that there had been a publication (as a book) in 
 England, which, as will have been observed from the 
 preceding Sections, had no effect upon performing right. 
 It was held that the effect of Section 19 of the Statute 7 
 Vict., chap. 12, just before stated was to disentitle Mr. 
 Boucicault to any relief. At first sight, and to the eye
 
 PERFORMING RIGHT 63 
 
 of a casual reader, there seems to be no obscurity in the 
 wording of this enactment as regards the question before 
 the Court. Ingenuity, however, is never wanting in a 
 Court of Justice, and it was strenuously argued on behalf 
 of the plaintiff that "the Legislature was not attempting 
 to deal with the rights of a native-born Briton, but that 
 the universality of the language was to be limited to the 
 case of an alien." The learned judge, Vice-Chancellor 
 Wood (who subsequently became Lord Hatherly), held 
 that " first publication" (to use his Honour's own expres- 
 sion) of a new work, outside the British Dominions, and 
 in a country like the United States, between which 
 country and Great Britain there is no convention, 
 destroyed the plaintiff's right to exclusive representation 
 or performance here. 
 
 (9) In the case of Boucicault versus Chatterton, the ?,P3?f;^°f^y 
 
 c ••! 1111 Division, 
 
 facts were very snnilar except that the play had never 272. 
 been printed or pubhshed as a book. The case arose in 
 connection with a play called " The Shaughraun." For 
 the plaintiff it was argued, both before Vice-Chancellor 
 Malins and the Court of Appeal, that the word " publica- 
 tion " in the 19th Section of 7, Vict., chapter VA, could 
 not apply to a dramatic composition unless it had been 
 printed. 
 
 The learned judges, while admitting the difficulties of 
 interpretation arising on the Copyright Acts, decided 
 against the plaintiff, holding that for the purposes of the 
 Statute a dramatic piece was made public so soon as 
 it was represented or acted. The singular confusion 
 which existed in the past between performing right 
 and copyright is strikingly shown from the argument 
 as stated in the Law Reports of plaintiff's Counsel in 
 this case. "This play," he is reported as saying, "has 
 never been printed or published, though it has been 
 acted, and therefore the plaintiff is entitled to 'copy- 
 right.' " It is unnecessary, perhaps, to add that the 
 plaintiff was not seeking to enforce copyright, but per- 
 forming right. Very little weight was given to the fact 
 that the play had never been printed. Indeed, the fact 
 that it bad not been so seems to weaken, instead of 
 strengthening, the case against Chatterton, for the Courts 
 have taken the view that the policy of the Statute is to 
 give a monopolj^ to him who first offers his work to 
 inhabitants of this country.
 
 64 
 
 MUSICAL COPYRIGHT LAW 
 
 "Wall versvji 
 Taylor, 1883; 
 11 Queen's 
 Bench Divi- 
 sion, 102. 
 
 Duck versus 
 Bates, 13 
 Queen's 
 Bench Divi- 
 sion, 843. 
 
 (10) Generally it may be taken that what it is piratical 
 to copy, it is illegal to perform. 
 
 The last observation is made with reference to subject 
 matter : questions, however, have been raised whether 
 what is now undoubtedly true of dramatic performances 
 extends to music, viz., that the character of the locality 
 where performance occurs is a factor in deciding the 
 question whether there is any infringement and remedy. 
 
 It must be taken as settled by high authority that 
 in order to confer a valid claim for an injunction and 
 damages on the proprietor of musical performing right, 
 it is not necessary that the unauthorised performance 
 should have occurred in a public place of entertainment. 
 
 (11) It is obvious that no Statutory definition could 
 shut the door to all question as to whether the place 
 and circumstances of any particular case make the per- 
 formance so insignificant and harmless as to take it 
 out of the scope and spirit of the Statute and to dis- 
 entitle the proprietor to any legal remedy. The words 
 in the Copyright Amendment Act, 1842 (Section 20), 
 which for the first time confer a sole right of per- 
 formance of music, say nothing about publicity : what 
 is given is " the sole liberty of representing, or perform- 
 ing, or causing or permitting to be represented or 
 performed, any . . . musical piece," so that, taken 
 literally, " a representation in a nursery by children, 
 or by grown up persons in a drawing-room " would be 
 an infringement. These were instances given by a 
 learned judge of what would not be piratical in the 
 case of a dramatic entertainment as being " obviouslj' 
 domestic and private." But could a proprietor sue to 
 restrain a performance of music given in a nursery or 
 drawing-room? The words of the Statute are wide, 
 and include as far as language goes any performance 
 whatever.^ The instances given in the hospital case, 
 Duck versus Bates, are a guide to some extent ; but 
 there must remain an element of uncertainty in many 
 cases which are near the line. The words of the 
 Statute are clear : the question will be, whether the 
 facts coming within the words also come within the 
 spirit, for the words of a Statute are not always con- 
 clusive, and are sometimes controlled by the general 
 intention of the legislator as shown by the context.* 
 
 * The words of the Section creating the right of performance of 
 a musical piece are " the sole liberty of representing or performing
 
 PERFORMING RIGHT 65 
 
 (12) The story of the plaintiff in Wall versus Taylor is 
 probably too well known to readers of this treatise to 
 require more than a passing allusion. This historical 
 personage was in the habit of acquiring, for a trifling sum, 
 performnig-right in musical compositions, such as songs, 
 and exacting for infringements, however shght, the full 
 amount of the heavy penalties imposed by the Statutes 
 tben in force, the payment of which the unwilling Courts 
 were compelled to order, together with double costs. The 
 state of the law enabled persons to interfere with per- 
 formances, having the object of providing, by the aid of 
 generous musicians, funds for the sick and indigent. 
 
 The abuse of the remedies provided for, even nominal 
 infringement, required a statutory antidote, and an Act 
 was passed for the protection of the public from vexatious 
 proceedings. 
 
 Under the Copyright Musical Compositions Act, 1882 45&46Vict. 
 (popularly known as " Wall's Act "), as mentioned a few 
 pages back in a different connection, the proprietor of the 
 copyright in any musical composition first published after 
 the passing of the Act, or the assignee, who shall be 
 entitled to and be desirous of retaining, in his own hands 
 exclusively, the right of public performance thereof, must 
 print, or cause to be printed, upon the title page of every 
 published copy of such musical composition, a notice to 
 the effect that the right of public performance is reserved. 
 
 If, subsequently to the passing of the Act, and before 
 publication (which here means publication in book form) 
 performing right and copyright become vested in different 
 persons, the owner of the performing right, if he desire to 
 retain the same, must, before publication of any copy, 
 give notice to the proprietor of the copyright requiring 
 him to print upon every copy a notice to the effect that 
 the right of public performance is reserved. 
 
 If, after publication, and after the passing of the Act, 
 copyright and performing right become vested in different 
 owners, and if a notice reserving public performance has 
 been printed upon copies published before the severance 
 
 or causing or permitting to be represented or performed, any . . . 
 musical composition." The qualification of publicity only occurs 
 in the enactment which follows : " The first public representation 
 or performance of any . . . musical composition shall be deemed 
 equivalent in the construction of this Act to the first publicatiou of 
 any book." 
 
 5
 
 66 
 
 MUSICAL COPYRIGHT LAW 
 
 Fuller versus 
 Blackpool 
 "Winter Gar- 
 dens, 1895, 
 2 Queen's 
 Bench, 429. 
 Id Oul versus 
 Coronet 
 Theatre, 
 Times. Feb. 
 4. 1893. 
 
 of ownership of copyright from performing right, then 
 the owner of the performing right, if he desire to retain 
 the same, must give notice to the owner of the copyright 
 before the pubhcation of any further copies, requiring 
 him to print a notice of the reservation of the right on all 
 copies to be thereafter pubHshed. If the owner of the 
 copyright neglect to comply with the requirements of the 
 owner of the performing right, he is liable to forfeit to 
 the owner thereof the sum of £20, to be recovered in any 
 Court of competent jurisdiction. 
 
 This singularly drawn enactment does not say what 
 shall be the result of failure on the part of a copyright 
 owner to comply with the demand of the performing 
 right owner, on the performing right itself. Nor does it 
 say what is to be the fate of that right if its proprietor 
 neglects to call for the insertion of the reservation. It 
 would seem reasonable to hold, in the latter case, that 
 the performing right owner should suffer from his negli- 
 gence, though the absolute extinction of the right might 
 operate harshly where it becomes vested in him without 
 his knowledge as, e.g., by bequest during his absence 
 abroad. But in the first case, that of the copyright owner 
 omitting to insert the reservation after being duly called 
 upon to do so, a strong judge would probably read within 
 the lines of the Statute an enactment that the right 
 should only be extinguished as against persons buying 
 the uninscribed copies, and remain in force as against 
 those who purchase copies duly bearing the reservation, 
 whether printed before the severance of the rights, or at 
 a future time. The £20 penalty would be an illusory 
 compensation for the loss of a right which might be 
 worth thousands of pounds. 
 
 It does not seem quite clear what would be the result 
 of the printing and publishing of copies piratically with- 
 out the insertion of any reservation. The question may 
 become important if the Legislature continue, for their 
 own reasons, to connive at the wholesale robbery of the 
 street pirates. It certainly ought not to be admitted, as 
 a defence to an action for piratical performance, that a 
 copy issued by a flagrant wrongdoer, without a reserva- 
 tion of a right inscribed on it, came into the hands of the 
 defendant innocently, in ignorance of the illegality. The 
 right of the proprietor who might not have failed to 
 comply with the statutory requirement, would seem to
 
 PERFORMING RIGHT 67 
 
 be the stronger, and he ought to be entitled to all the 
 statutory remedies and to be indemnified against the costs 
 of the suit. 
 
 If there were no authority on the question, it would 
 have seemed doubtful whether the clause requiring the 
 owner of performing right to print the reservation is not 
 merely a meaningless direction to do so, and whether the 
 failure to do so on the first copies would extinguish the 
 right ; or whether such failure would only be a defence 
 in the mouth of persons without notice that performing 
 right is reserved at all. 
 
 (13) The Copyright (Musical Compositions) Act, 1888, 5i&52Vict., 
 enacts that (in effect) : — 
 
 Notwithstanding the provision of the Dramatic Copy- 
 right Act, 1833, or any other Act in which those 
 provisions are incorporated, the penalty or damages to 
 be awarded upon any action or proceedings in respect 
 of each and every unauthorised representation or per- 
 formance of any musical composition whether published 
 before or after the passing of the now reciting Act, shall 
 be such a sum as in the discretion of the Court shall be 
 reasonable ; and the Court may award less than 40s. in 
 respect of each such performance, or a nominal penalty 
 or nominal damages. 
 
 By Section 2 it was enacted that the costs should be 
 in the absolute discretion of the judge. 
 
 (14) The question sometimes arises in cases of piratical 
 performance, "who is responsible": "who caused or 
 permitted " the performance so as to fix a liability. This 
 occurs often in cases where the manager of a theatre or 
 music hall lets it for a musical entertainment. The test 
 is who actually by himself or his employe takes part in 
 the performance. It is not enough to make a manager, 
 still less a lessee or mere occupier, liable for a piratical 
 performance of music, that he supplied the theatre, 
 lights, supernumeraries and check-takers, if he did not 
 hire and bring the executants. The farthest point to 
 
 which the Courts have gone in this direction was in a c^o^nqSest!"* 
 case where the proprietor of the Grecian Theatre was n common 
 held liable for an unauthorised performance of a dramatic ports, new 
 piece on the ground that the actors were in his perma- ^®"®^* '*-'-^' 
 nent employ, although his son hired from him the whole 
 troupe for the one night, together with the theatre and 
 hghts, for i£30. No doubt the relationship between the
 
 68 
 
 MUSICAL COPTEIGHT LAW 
 
 See Parsons 
 versus Chap- 
 man, 15. 
 Carington 
 and Payne, 
 33. 
 
 Russell versus 
 Briant, 8 
 Common 
 Bench, 836. 
 
 Eussell versus 
 Smith, 12 
 Queen's 
 Bench, 217. 
 
 Lyon versus 
 Knowles, 3. 
 Best and 
 Smith, 556. 
 
 Reported in 
 
 the Daily 
 
 Telegraph 
 
 Newspaper 
 
 of the 4th 
 
 February, 
 
 1903. 
 
 parties, and the fact that the son was stage manager 
 of his father's undertaking, showed a sort of privity 
 between the parties which may have influenced the 
 Court ; but the case is pecuhar in the fact that the actors 
 were unquestionably in the son's employ for the one 
 night. 
 
 Though the piece performed was a dramatic one, the 
 principle applies to music ; and with reference to musical 
 compositions the " Copyright Musical Composition Act, 
 1888," enacts that the proprietor tenant, or occupier of 
 any place of dramatic entertainment, at which any 
 unauthorised performance of music, whether published 
 before or after the passing of the now reciting Act 
 should take place, should not be liable to any penalty or 
 damages in respect thereof, unless he should wilfully 
 cause or permit such unauthorised performance, knowing 
 it to be so. 
 
 By Section 4 the provisions of the now reciting Act 
 were not to apply to any proceedings in respect of any 
 opera in any theatre or other place of public entertain- 
 ment duly licensed in that respect.* 
 
 The case of Moul versus Coronet Theatre (Limited) 
 greatly enlarges the opportunities for infringement of per- 
 forming right by unscrupulous persons. The defendants, 
 the owners of the theatre, were sued by the proprietor 
 of the performing right to the " Valse bleue," a French 
 composition. The case was considered to tarn on the 
 Section stated just above, and the defence was the 
 alleged ignorance of the persons assumed to be respon- 
 sible, viz., the musical director (who was not made a 
 defendant, but appeared as a witness) and the managing 
 director. 
 
 The Court held that the oath of those persons that 
 they did not know that the performance was un- 
 authorised, and that they had not seen a copy of the 
 music containing a reservation of the performing right, 
 was an answer to the action. 
 
 The case is an eminently unsatisfactory one, and may 
 place future tribunals in difficulty. 
 
 * Marsh versus Conquest, 17 Common Bench (N.S.), 418. Mona- 
 han versus Taylor, 188G, 2 Times Law Reports, 685. French versus 
 Day, 1893, 9 Tnucs Law Reports, 548. Kelly's Dh-ectories versus 
 Gavin, 1901, 1 Chancery, 374.
 
 PERFORMING RIGHT 69 
 
 It does not appear from the report how it was that 
 the piece, beinp; a French one, fell under the British 
 Statute of 1888, and not under the Berne Convention, 
 Article 9, which deals with performing right in countries 
 of the Union. 
 
 The Lord Chancellor dealt with the case on the 
 ground that there might be no copyright at all attached 
 to the music, and that the musical director could not be 
 assumed to know that there was ; but the real point 
 was, or should have been, what authority had been 
 given to the proprietors of the theatre, either by them- 
 selves or their musical director, to perform the " Valse 
 bleue " '? They must have collectively known that no 
 one had authorised them or either of them, and if this 
 had been brought out the defence would have failed. 
 
 Ignorance whether the piece was or not copyright is 
 not the defence contemplated by the Statute, which can 
 hardly be intended to reverse the universal rule that 
 a man is bound to enquire as to what he plays, and 
 is levelled at a different object, viz., that of relieving the 
 owners of premises (especially absentees) from punitive 
 orders of the Court, where they have not wilfully connived 
 at a performance behind the back of the owner of per- 
 forming right. The case could not turn on the presence 
 or absence of a reservation of performing right on the 
 copies of the music, for such a reservation is consistent 
 with either theory, viz., that the proprietor has given, or 
 refused, authority to perform.* 
 
 * This case was treated as coming under the British Statute, but 
 it would seem questionable whether the law of the forum applies, Berpe r-n- 
 and whether it should not rather be mentioned in this work under ^-^" 
 the head of international rights. The piece was French in its origin, ^ 
 and the author was entitled to the rights which the law of Great 
 Britain gives to natives of Great Britain, subject to the formalities 
 obtaining in the country of origin, i.e., France ; but there is nothing 
 anywhere whicli fixes the owner of foreign copy- or performing- right 
 with all the burdens and obligations attachmg to British rights ; 
 and it is not unreasonable to hold that a member of a country of 
 the Union, other than the country of the forum, should not be bound 
 to fix the proprietor of a theatre with knowledge whether a per- 
 formance is authorised or not, generally a most difiicult, often an 
 impossible, task. 
 
 The broad question has never been noticed as existing, either in 
 judicial decisions, or by text-book writers, and discussion may be 
 looked for with interest. No doubt a very convenient decision woidd 
 be to hold that Section 3 of the Act of 1888 applies to foreign
 
 70 MUSICAL COPYRIGHT LAW 
 
 See Ameri- (15) The point as to protecting improvisations has 
 anaiqgo% always been lost sight of, eclipsed as it has been by 
 in Drone°on*' burning questions of more pressing importance at the 
 copyright moment. The subject is shortly dealt with here as 
 edition of ' especially pertinent to the realm of performing right. 
 1879, p. 560. j^ .g ^ ^ggg difficult matter than would at first sight 
 appear to a non-musician, to retain in the memory, and to 
 write down, a substantial portion of an improvised organ 
 solo, where the improviser is a master of form and clear- 
 ness, and observes a regular plan of constructing his 
 sonata-like or fugal composition, as is the case with 
 Monsieur Guilmant or Monsieur Widor, or as was 
 formerly to be found in the extemporisations of Sir 
 Frederick Ouseley ; it is an injustice to the composer 
 that some adroit copyist with a retentive memory should 
 carry away and flourish about as his own, either by 
 performing or transcribing, the motive and plan of 
 another, and in the latter case possibly sell what he 
 has so transcribed. The matter is not imaginary, and 
 the trick has been done platonically by the present 
 writer. It seems to be doubtful whether the law as to 
 unpublished compositions would apply, and give the 
 protection which the justice of the case demands. 
 
 (16) No registration is necessary as a condition of suing 
 in respect of piratical performance of music ; there is 
 no word in the Statutes imposing this duty on the 
 plaintiff.* 
 
 In the 3 and 4 Wm. 4, c. 15, there is nothing said 
 about registration. 
 
 In the 5 and 6 Vict., c. 45, Section 20, it is recited that 
 
 members of the Union, but it would be the convenience of managers 
 and lessees, and the reverse of convenient to foreign authors. 
 
 The questions which have to be answered in connection with this 
 subject are (1) into what contract has Great Britain entered mto 
 with other countries? and (2) was the contract intra ov ultra vires, 
 having regard to the Statutes of 1844 and 1886 hereinafter stated in 
 detail ? 
 
 * The writer thought that this point was firmly settled, and did 
 not hesitate to state it as unquestionable in a treatise dated some 
 twelve years since ; but in the learned work so often quoted here 
 of Mr. MacGillivray, the question is treated as being a doubtful one. 
 He only gives, however, tlie well-known arguments in favovir of the 
 exemption, almost every one of which alone would be sufficient to 
 remove any doubt ; the reader may judge for himself from the sec- 
 tions stated above.
 
 PERFORMING RIGHT 71 
 
 it is " expedient to extend to music the benefits of 3 and 4 
 Wm. 4, c. 15, and also of the 5 and G Yict., c. 45, and it 
 is enacted that the provisions of these two Acts " shall 
 apply to musical compositions" ; and "the sole liberty of 
 performing any . . . musical composition shall be the 
 property of the author " for the term provided in the now 
 reciting Act for books. And "the provisions hereinbefore 
 enacted in " respect of the property of such copyright, 
 and of registering the same shall apply to the liberty of 
 " perfornnng any . . . musical composition." 
 
 The clause (iSection 24) which enforces registering any 
 copyright as a condition before suing is not one of the 
 provisions ''hereinbefore enacted" mentioned in Section 
 20 ; and, short of negative words, it is hardly possible to 
 conceive a stronger expression of intention that a pro- 
 vision hereinafter enacted is not intended to apply. But 
 the legislator was not satisfied even with this, for he says 
 in Section 21 that the proprietor of exclusively performing 
 a musical composition shall enjoy the ''remedies" given 
 by the 3 and 4 Wm. 4, c. 15 (which does not mention 
 registration), as fully as if they were re-enacted, and there 
 is not a word imposing upon him the obligations created 
 by the 5 and 6 Vict., c. 45. This is another strong case 
 of expressio unius est exclusio alterius ; and to wind up 
 the whole he provides in Section 24 (after enacting that no 
 proprietor of "copyright" shall sue without registering) 
 that " nothing herein contained shall prejudice the reme- 
 dies which the proprietor of the sole liberty of represent- 
 ing any ' dramatic piece ' shall have under 3 and 4 
 Wm. 4, although no entry be made on the register." 
 
 (17) The only shred of argument in favour of the 
 necessity of registering music before suing in respect of 
 performing rights is found in this clause, which only 
 mentions a dramatic piece and does not couple music 
 with it in terms ; but the definition clause includes 
 "musical entertainments," under the head of "dramatic 
 piece " ; and, moreover, the legislator, after coupling 
 music with drama all through the Sections as to register- 
 ing, provides expressly that the " provisions ... of 
 this Act shall apply to music " ; and it is inconceivable 
 that it should be intended whimsically to sever music from 
 the drama, and impose affirmatively such an important 
 obligation as registering, by a mere omission of a word, 
 and that word only necessary for symmetry and not for 
 sense.
 
 72 
 
 MUSICAL COPYRIGHT LAW 
 
 No argument in favour of a necessity of registration 
 before suing in respect of performing right can be founded 
 on the words in 5 and 6 Vict., c. 45, Section 20, to the effect 
 that the "provisions hereinbefore enacted in respect of 
 registering shall apply to performing right " ; those words 
 are satisfied and have their proper scope, though such 
 registering be optional, for — 
 
 (i.) Certified copies of the entries are provided at 
 Stationers' Hall, on payment of 5s., and such copies 
 are received in Courts as prima facie evidence of the 
 proprietorship of copyright or license and of perform- 
 ing right in music, subject to be rebutted. The regis- 
 tration provisions are useful and have their proper 
 mission ; moreover, 
 
 (ii.) The register supplies a convenient record of 
 dates and means of identifying the author and pro- 
 prietor, and besides may be useful as supplying a 
 mode of assignment. They are, therefore, not 
 surplusage qua music, even though registration be 
 not compulsory. This was ably and clearly pointed 
 out by Mr. Justice AVills in the case of Hardcastle 
 versus Purcell already quoted. 
 
 (18) In Mr. MacGillivray's comment on the question 
 (which he considers open) whether registration of a 
 musical work is a condition precedent to suing to enforce 
 performing right, he quotes Clark versus Bishop as having 
 a bearing. That case, however, was one restraining 
 printing and publishing only, and is not material, on the 
 question of suing to restrain or punish piratical per- 
 formance. 
 
 He also adduces an observation of J. Crompton, in 
 
 another case, that " if it were not for the proviso above 
 
 quoted in Section 24 there would be a doubt whether 
 
 LacyicrsMs registration is not obligatory before suing." With great 
 
 i?iSfl',8?3: respect and deference to the memory of that eminent 
 
 naf Q^e°n's' j^^*^^*^' ^^^'^ remark might be paraphrased by the following 
 
 Bench, 157. truism : "If it were not that the Statute has nowhere 
 
 said that registration is obligatory, and if there had not 
 
 been the strongest provisos for making exemption clear, 
 
 the proprietor of performing right might be held bound to 
 
 register." 
 
 (19) Assignment of performing right must either be 
 by writing or entry on the register. The 22nd Section 
 of the 5 and G Vict., c. 45, provides that an assignment 
 
 Dbi supra. 
 25 Law 
 Times, 908
 
 PERFORM [NG RIGHT 73 
 
 of musical copyright shall not pass the performing- 
 right, unless an entry is made on the register express- 
 ing the intention of the parties that such right should 
 pass by the deed (sic). The reason of this singular 
 enactment (which seems to have dropped from the 
 skies into the middle of the Statute, and which is an 
 uncalled-for interference with the rule, that without a Cutler 
 very special necessity the legislator should not take upon weatheriy, 
 himself to make men's contracts for them) was, that inP***" 
 one case it had been held that an assignor of copyright 
 had parted with his performing right. Neither the case, 
 on the one. hand, nor Section 22 on the other, have had 
 much influence on the transactions with which thevExpte. 
 purport to deal. It is unquestionable law that an assign- Law^RepoVts, 
 ment, with words sufficiently large and precise, will B^ctfofvi- 
 comprise the right of performance as well as that of sion, 483. 
 multiplying copies. 
 
 (20) The converse of Section 22 is also an undisputed 
 truth, viz., that an assignment of performing right will 
 not comprise copyright. In fact, the Section is as much 
 a truism as a section of a real property Statute, which 
 should enact that " a conveyance of whiteacre shall not 
 include blackacre." 
 
 Of course, the moment a work is composed the author 
 may assign his performing right, which vests in him 
 seriatim as each note, or chord, is suggested by his 
 imagination. Licenses can be granted, limited either in 
 time or in area, but must be in writing. 
 
 (21) The law hereinbefore stated, with reference to 
 copyright, to the effect that " a part is not a particle " Chatterton 
 
 I- ^ ,. . . , 1 • J 1 ii 1. • "«""*' Cave, 
 
 applies to performmg right ; and, indeed, the case, herein 3 Appeal 
 and usually, cited to prove the axiom was decided upon *-'^^®^' ^®^" 
 Section 2 of the 3 and 4 Wm. 4, c. 15, which imposes 
 penalties upon any person who shall represent, without 
 leave, " any such production (as aforesaid) or any part 
 thereof." 
 
 (For performing right, in cases subject to international 
 law, see the following chapter on international right). 
 
 (For performing right, in cases between Great Britain 
 and the United States, see the last chapter in this 
 work.)
 
 EH 
 
 w 
 
 l-H 
 
 o 
 
 S 
 
 Injunction and damages to bo 
 such as the Court, in its dis- 
 cretion, shall think right, such 
 damages not necessarily con- 
 fined to the sum of 40s. for 
 each representation, and costs 
 of suit, also in the discretion 
 of the Court. (Copyright Musi- 
 cal Composition Act, 1888.) 
 
 Ibid. 
 
 
 to 
 
 o 
 
 1 
 
 o 
 
 Performance with- 
 out license of 
 the proprietor 
 in the King's 
 dominions. 
 
 Ibid 
 
 5 
 p 
 o 
 
 g 
 
 The British Do- 
 minions.* 
 
 Ibid, 
 
 a 
 o 
 X3 
 o 
 
 ID 
 
 o 
 
 «-< 
 o 
 
 g 
 
 Arises on the piece being 
 composed, and con- 
 tinues in perpetuity, 
 or until public per- 
 formance. 
 
 The life of the author, 
 and the further term 
 
 of seven years, com- 
 mencing at the time 
 of his death : or if the 
 term of seven years 
 shall expire before the 
 end of forty-two years 
 from first performance 
 then for such period of 
 forty-two years. 
 
 o 
 o 
 
 Any musical composition of a British 
 subject, or an alien resident in the 
 King's dominions, whether vocal, 
 instrumental, dramatico-lyrical, or 
 otherwise, whether printed and pub- 
 lished or not, which has never been 
 performed publicly. 
 
 Any musical composition of a British 
 subject, or an alien resident in the 
 
 King's dominions, whether vocal, 
 instrumental, dramatico-lyrical, or 
 otherwise, whether printed and pub- 
 lished by the author or any other 
 person, or not, which has been first 
 publicly performed in the King's 
 dominions.
 
 76 
 
 CHAPTER VI. 
 
 (1) Extra-territorial copyright, purely a creation of Statute. Inter- 
 national Copyright, 1844. (2) AVorks allowed to lapse for want 
 of registration. (3) Fifteen and sixteen Vict., chapter 12, 
 Section 6, as to fair imitations, and International Copyright 
 Act, 1886. (4) Order in Council of November 28, 1887. (5) 
 Berne Convention, when ratified. The like as to the Additional 
 Act of Paris, 1896. (6) " Country of Origin," meaning of, in the 
 Berne Convention and Act of Paris. Also of " Country of the 
 Forum" as used in this treatise. (7) Rights and obligations 
 under Article 2 of the Berne Convention, as regards an unpub- 
 lished work. (8) As regards a work first published in the United 
 Kingdom, or any other British possession. (9) Registration, 
 whether required in the case of a work entitled to copy- or per- 
 forming-right in the United Kingdom under the Berne Convention. 
 (10) Rights of the foreigner suing here, similar to those of natives 
 of Great Britain suing abroad. (11) Order in Council not entirely 
 co-extensive with the Convention. (12) As to the rights of 
 composers not natives of a country of the Union. (13) Transla- 
 tions of works by an author native of a country of the Union, 
 not protected unless the original work had been first published 
 in a country of the Union. (14) " Traductions licites,'" badly 
 translated by " authorised." A translation may be protected as 
 an original work would be. (15) Performing right under the 
 Berne Convention ; extended to translations of libretti. (16) 
 Questions arising on the reservation of performing right. (17) 
 Arrangements and other modes of reproducing musical pieces in 
 a changed form. (18) Composer's name, when to be stated on 
 the work. (19) Seizure of piratical works. (20) Pitts versus 
 George, 1896, 2 Chancery, 866. (21) Mechanical instruments 
 under the Berne Convention. (22) Article 14 of Berne Con- 
 vention. Retrospective rights. (23) The Austrian Convention, 
 differs in what respects from that of Berne. (24) Procedure 
 governed by the lex loci. (25) " Morocco Bound " Syndicate 
 versus Harris, 1895, 1 Chancery, 634. Tabular form. 
 
 INTERNATIONAL COPYRIGHT. 
 
 (1) The subject of international rights in reference to 
 musical compositions has only assumed importance in 
 recent years. 
 
 Blunted as is the moral sense of the present generation 
 by the thefts of the street pirates with the connivance of
 
 76 MUSICAL COPYRIGHT LAW 
 
 the authorities, it would have contemplated with amaze- 
 ment the wholesale appropriation of French, German, 
 and Italian musical works by unauthorised reproduction 
 in Great Britain which was formerly complacently 
 acquiesced in, and not regarded in any way as an 
 offence against honesty. 
 
 Apart from Statute there is no protection given by 
 English law to works first published or performed out- 
 side the British dominions. 
 
 The state of things which existed fifty or sixty years 
 ago was, however, found to be unsuited to the exigencies 
 of society, and accordingly (after an unsuccessful attempt 
 to legislate on the matter in 1838 by a Statute of 1 and 2 
 7 and 8 Vict., Vict., chapter 59) the International Copyright Act, 1844, 
 oh. 12. ^g^g passed, which is still in force, and is the basis of 
 
 International Copyright Law, though it has been supple- 
 mented by later legislation. 
 
 By virtue of this Statute and Orders in Council made 
 under it, a number of conventions were from time to 
 time entered into between Great Britain and certain 
 Continental states. 
 7 and 8 Vict., The Statute of 1844 contains a Section (already dis- 
 ch. 12, sect, cussed in the preceding chapter) which provides that no 
 author, whether British or foreign, is entitled to pro- 
 tection in the British dominions for musical compo- 
 sitions first published outside them, "otherwise than 
 such (if any) as he may become entitled to under this 
 Act." 
 
 The same Act empowered Her late Majesty by Order 
 in Council to direct that as respects all or any particular 
 class or classes of {inter alia) books (including sheets of 
 music) to be defined in such order, which should after a 
 future time, to be specified in such order be first pub- 
 lished in any foreign country to be named in such order, 
 the authors therof should have the privilege of copyright 
 therein, during such period as should be defined in such 
 order, not exceeding the term which authors of like 
 works first published in the United Kingdom might be 
 entitled to under the then existing or future copyright 
 Acts. 
 
 It was also provided that it should be lawful to direct, 
 by Order in Council, that the authors of musical compo- 
 sitions which should after a future time to be specified 
 in such order, be first publicly performed in any foreign
 
 INTERNATIONAL COPYRIGHT 77 
 
 country to be named in such order, should have the 
 sole liberty of performing in any part of the British 
 dominions such musical compositions during such period 
 as should be defined in such order, not exceeding the 
 period during which authors of musical compositions 
 first publicly performed in the United Kingdom might for 
 the time being be entitled by law to the sole liberty of 
 performing the saine ; that the provisions of any Act 
 for the time being in force with relation to such liberty 
 of performance should apply to the musical compositions 
 to which such order should extend, and which should 
 have been registered as thereinafter provided, in the 
 same manner as if such musical compositions had been 
 first publicly performed in the British dominions. 
 
 It was further enacted that no author of any musical 
 composition should be entitled to the benefit of the Act, 
 unless, within a time to be prescribed in such Order in 
 Council, such musical composition should have been so 
 registered as is in the Statute mentioned. 
 
 The Statute then contains minute directions as to 
 registration. 
 
 The Statute defines "book" as including a sheet of 
 music. 
 
 (2) The Statute just recited, and the Orders in Council 
 made under it, had but a very limited operation in practice 
 for a good many years. 
 
 Thousands of musical compositions by French and 
 German composers were allowed to fall into the public 
 domain, for want of registration in compliance with the 
 precise terms of the Section in that behalf. The fate of 
 such compositions will be mentioned later on. 
 
 (3) A subsequent Act relating to international musical 15 and le 
 copyright was passed in the year 1852. This Act, how- ^^°*' °^- ^^• 
 ever, deals only with matters of detail. The general 
 
 aspect of international copyright law on the subject of 
 
 music remained the same until the year 1886 when the vicli^. ch. 33. 
 
 International Copyright Act, 1886, was passed. 
 
 The Statute of 1852 enacts that nothing therein shall 15 and le 
 be construed so as "to prevent fair imitations or adapta- Yeot."Q°^'^^' 
 tions to the English stage " of any . . . . " musical 
 composition published in any foreign country." 
 
 (4) At length the most important States in Europe 
 agreed to join in a federation, having for its object a 
 union abolishing geographical limits as far as authors'
 
 78 MUSICAL COPYRIGHT LAW 
 
 ric^hts were concerned. The Statute of 1886 was passed 
 to supplement that of 1844, and to enable Great Britain 
 to combine with other Powers and improve the machinery, 
 which had been found defective and unpractical under 
 the Act of 1844. 
 
 The all-powerful intervention of Parliament was neces- 
 sary to enable the Government of Great Britain to 
 contract ; and with the legislative sanction, the great 
 international treaty known as " the Berne Convention " 
 was entered into. 
 
 Koughly stated, and without anticipating matters of 
 
 detail, the object and scope of this treaty was to give 
 
 reciprocal rights to the authors of one country in the 
 
 dominions of the others. 
 
 49 and 50 Under the Statute of 1886, in combination with the 
 
 7 and' 8 Vict.', International Copyright Act, 1844, an Order in Council 
 
 oh. 12. jQay \)Q made as provided by the earlier of the two Acts. 
 
 Such order may exclude or limit the rights conferred by 
 
 the International Copyright Acts in the case of authors 
 
 who are not subjects, or citizens, of the foreign countries 
 
 named or described in that or any other order. 
 
 It was recited that a draft of the Berne Convention 
 had been agreed to : It is enacted that the Act of 1886, 
 and the previous International Copyright Acts should be 
 construed together : There are several provisions which 
 are practically repeated in the Berne Convention, and 
 there are other provisions hereinafter stated which do 
 not cover the same ground as any clause in the Conven- 
 tion, and also there is a third class of provisions which 
 relate exclusively to home or colonial legislation, and do 
 not touch international rights. 
 
 Without referring to them, or to any section which has 
 
 not a direct bearing upon the branch of the subject now 
 
 before us, and without travelling over ground covered by 
 
 both the Statute and the Convention, we ought to state 
 
 that it is enacted by Section 4 as follows (in effect). 
 
 49 and 50 Where an order respecting any foreign country is 
 
 8ect.4° ' ' made under the International Copyright Acts, the pro- 
 
 piacitum 1. visions of those Acts with respect to the registry and 
 
 delivery of copies of works shall not apply to works 
 
 produced in such country except so far as provided by 
 
 the order. 
 
 Section 10, It is also enacted that it shall be lawful for the Crown 
 
 piacitum 1. ^Q make Orders in Council for the purposes of the Inter-
 
 INTERNATIONAL COPTEIGHT 79 
 
 national Copyrif;ht Acts, and the now stating Act, for 
 
 revoking or altering any Order in Council previously made, 
 
 and further that any such Order in Council shall not affect I'lacitum 2. 
 
 prejudicially any rights acquired or accrued at the date 
 
 of such order coming into operation, and shall provide 
 
 for the protection of such rights. 
 
 An Order in Council, dated November 28, 1887, recited 
 the Berne Convention, and provided that it should have 
 as from the commencement of the order, viz., December 
 6, 1887, full effect throughout the King's dominions. 
 
 (5) The Berne Convention, which is recited in the 
 Order in Council of November 28, 1887, was ratified 
 at Berne on September 5, 1887. The Convention was 
 amended by the additional Act of Paris, 1896, which was 
 sealed on September 9, 1897. 
 
 These documents extend to the countries following, 
 with the exceptions stated below : — 
 
 Germany, Switzerland, 
 
 Belgium, Tunis, 
 
 Spain, Norway. 
 
 France, Haiti, 
 
 Great Britain, Japan, 
 
 Italy, Denmark and the Faroe 
 
 Luxembourg, Islands, 
 
 Monaco, Sweden. 
 
 Sweden and Norway have not joined in the additional 
 Act of Paris. 
 
 (6) The subjoined definitions will facilitate the reader's Berne con- 
 task. The term "country of origin" in the Berne Con- ^®^^J^^'2. 
 vention and the additional Act of Paris, 1896, means {a) 
 
 the country in which a work is first published, " or if 
 any such publication takes place simultaneously in several 
 countries of the Union, then that one of them in which 
 the shortest term of protection is granted by law"; or (6) 
 in case of unpublished works, the country to which the 
 author belongs." 
 
 This is not only the definition of " country of origin " 
 in the Berne Convention and Act of Paris ; it is also the 
 sense in which the term is used in this work. 
 
 Where " works " are spoken of in this treatise in con- 
 nection with the Berne Convention and Act of Paris, the 
 expression comprises dramatico-musical, or lyric composi- 
 tions, as well as musical ones pure and simple. 
 
 It is convenient to notice here that " country of the
 
 80 
 
 MUSICAL COPYKIGHT LAW 
 
 Berne Con- 
 vention, 
 Article 2. 
 
 Article 9. 
 
 forum " is the term used in this work to denote the 
 country where any exchisive right has to be enforced. 
 
 " Country of the Union " in the Berne Convention and 
 additional Act of Paris, 1896, and in this work, means 
 any State which has signed and entered into the Berne 
 Convention. 
 
 (7) Under the foregoing Convention and Act, as to a 
 work which has never been pubhshed in any State, and 
 which has not expired or otherwise fallen into the public 
 domain, either in the country of origin, or in the country 
 of the forum,* a British composer, or one being a native 
 of any British possession, has exclusive copy- and per- 
 forming-right, and may sue an infringer in any country 
 of the Union. 
 
 The rights granted are those " which the respective 
 laws do now, or may hereafter, grant to natives," i.e., 
 natives of the country of the forum. These words are 
 large enough to comprise not merely the nature, but the 
 duration also of the right ; the term, however, cannot 
 exceed that granted in the country of origin (in this 
 case, the United Kingdom, or some other British posses- 
 sion), that being the country "to which the author 
 belongs." The result of this will be that in the case 
 of a work which has never been published, and which 
 would be in Great Britain entitled to protection for an 
 unlimited time, the term of protection under Article II. 
 would be limited by that conferred by the laws of the 
 forum ; e.g., if France were the forum, the term would 
 befo?e"p^ub*^ ^^ ^^^^ years after the death of the composer, that being, 
 lication. rouglily speaking, the term conferred on musical com- 
 posers by French law. It would exceed the limits of 
 this work to give all the niceties of French law as to 
 duration and devolution of term. For these particulars 
 the reader should consult the admirable work of Mr. 
 Copinger, fourth edition. 
 
 (8) As to a work which has been first published in the 
 United Kingdom, or any other British possession, and 
 in which copy- or performing-right has not expired either 
 in the British Dominions or in the country of the forum. 
 
 See Appen- ^ British composer, or one being a native of any British 
 
 See Chapter 
 
 * As to works, which, in the country of origin have not fallen into 
 the public domain, but have done so in the country of the forum, see 
 later on (Afipendix).
 
 INTERNATIONAL COPYRIGHT 81 
 
 possession, has exclusive copy- and performing-riglit, and 
 
 may sue an infringer in any country of the Union, he 
 
 having first (if his claim be in respect of copyright) Additional 
 
 registered in the prescribed forms at Stationers' Hall ; ^^^-i'^.-Pf^^' 
 
 o.„ .i . -li.!- 1896, Art. 12. 
 
 and It he wishes to retam performing right, having 
 declared on the title page or commencement of his 
 work that he forbids public performance. In this case 
 the French term (to continue the reference to France 
 by way of illustration) would be limited by the shorter 
 British one of the composer's life and seven years after 
 his death, or forty-two years from first publication in 
 any country of the Union (see Section 3 of the Copyright 
 Amendment Act, 1842).* 
 
 (9) In the case of a foreigner suing in this country 
 in respect of a work published abroad, it is necessary 
 for him to show that the formalities prescribed by 
 the laws of "the country of origin" have been complied 
 with. 
 
 It is, however, not necessary for him to register at Hanf- 
 Stationers' Hall. fertuf ^ * 
 
 (10) With the exception of his immunity from the ipXacco^ 
 obligation to register, the right of the foreigner suing fogg^*"^* 
 here is similar, mutatis mutandis, to those hereinbefore i Queen's 
 and hereinafter stated, both as to published and unpub- ®^° ' 
 hshed works, with reference to natives of Great Britain. 
 
 (11) The Act of 1886 and the Order in Council of 
 November 28, 1887, are not always co-extensive with 
 the Berne Convention in reference to a given subject. 
 Section 2, Placitum 3, of the Statute, enacts that " the 
 International Copyright Acts, and an order made there- 
 under, shall not confer on any person any greater right 
 or longer term of copyright in any work than that 
 enjoyed in the country of origin." The Order in Council 
 contains words (Section 3) in pursuance of this enact- 
 ment, and to a similar effect. 
 
 The Berne Convention does not restrict the right 
 enjoyed in the country of the forum in this manner ; 
 it purports to confer the rights enjoyed by " natives," i.e., 
 
 * This would seem to be the result of the Statute of 1886 and the 
 Conventions ; it cannot be said, liowever, to be quite free from doubt 
 from what period the forty-two years would be dated ; whether from 
 first publication anywhere, or first publication in a country of the 
 Union. The text-books all ignore this point. 
 
 6
 
 82 MUSICAL COPYRIGHT LAW 
 
 natives of the forum, without reference to the nature of 
 the right enjoyed in the country of origin ; only the 
 term is limited to a duration not exceeding that granted 
 in the country of origin. 
 
 This discrepancy between the Convention and the 
 Legislative Acts which empower the nation to contract 
 might have some importance in several combinations of 
 circumstances. Suppose a work of French origin, repro- 
 duced in Great Britain ; the French owner sues in 
 London, purporting to act under the Convention. It 
 would be a good defence in the English Court that the 
 work, though not illegal here, was tainted with some 
 • political or other vice which would prevent it being a 
 subject of protection in France. If the French owner 
 were allowed to sue successfully in the English Court 
 in respect of such a work so tainted, he would enjoy a 
 greater right in the country of the forum than that 
 "enjoyed in the country of origin" (France), where 
 he would have no right at all. Again, in the converse 
 case of an action brought in Paris on a work of British 
 origin, and of a defence founded on immorality according 
 to Enghsh views, the French Courts would enquire into 
 British law and allow the defence if well founded in 
 fact, though from a French point of view the work 
 might be unobjectionable. 
 Additional ^^'^^ ^^ regards works published for the first time in 
 Act of Paris, a country of the Union, the position of the composer 
 not being a native of one of those countries is now 
 assimilated to one who is.* 
 Article 3 ^"'"'^^ "^^^ authors of Great Britain enjoy in the other 
 
 Additional countries of the Union the exclusive right of making or 
 ^oV/^'t^f' authorising the translation of their works first produced 
 1886, sect. 5. in a country of the Union during the entire period of 
 their right over the original work. 
 
 This right ceases to exist if, during a period of ten 
 years from the date of the first publication of the original 
 work, the author shall not have availed himself of it by 
 publishing in one of the countries of the Union a transla- 
 tion in the language for which protection is to be claimed. 
 
 * In this respect the Act of Paris has altered the status of the author 
 under the Order in Council of November 28, 1887, which provided 
 that in the case last mentioned the pubUsher should be substituted 
 for the author (see Section 4).
 
 INTERNATIONAL COPYRIGHT 83 
 
 The words of the Section which confers the right of Aotofisso, 
 translation are in effect as follows : " Where a book is "®° ' 
 first produced " in a country of the Union, " the author 
 shall, unless otherwise directed by the order, have the 
 same right of preventing the production in, and importa- 
 tion into, the United Kingdom of any translation not 
 authorised by him of the said work as he has of prevent- 
 ing the production and importation of the original work." 
 
 The article on this subject in the Berne Convention is, Article 5. 
 in effect, as follows : " Authors of any of the countries 
 of the tjnion shall enjoy in the other countries the 
 exclusive right of making or authorising the translation 
 of their works until the expiration of ten years from the 
 publication of the original in " a country of the Union." 
 
 In Article 5 of the Berne Convention nothing is said 
 as to the place where the original publication of the 
 "book" must have taken place for the exclusive right 
 of translation to attach. 
 
 The general effect of the Section 5 and Article 5 
 would seem to be, e.g., that Mr. Gilbert, an Englishman, 
 publishing for the first time in Russia or America (which 
 are not countries of the Union) one of his libretti, could 
 not interfere in Great Britain with an unauthorised 
 translation of that libretto, because the Statute of 1886 
 restricts the operation of Section 5 to a work first pro- 
 duced in a country of the Union. 
 
 On the other hand, Article 5 is, in another respect, 
 narrower in its scope than Section 5, as it restricts the 
 right of translation to works by " authors of any of the 
 countries of the Union." Section 5 of the Act of 1886, 
 standing alone would apply to a work by an author of 
 any nationality. 
 
 Under the additional Act of Paris, the conventional 
 period of translation is extended to the full term "of 
 copyright " in the original work. The proviso in the 
 Statute as to cesser of the right unless a translation be 
 produced within ten years, of course, remains, and would 
 prevail as against a member of any country of the Union 
 suing in Great Britain. 
 
 (14) Authorised translations are treated for purposes Article e. 
 of protection as original works. The word " authorised " 
 is not a happy translation of the adjective "licites" in 
 the original French of the Berne Convention. The word 
 " authorised " obviously has reference to the fact of
 
 84 MUSICAL COPYRIGHT LAW 
 
 authority given to translate by the author : vide Arti- 
 cle 5. Whereas " Traductions licites " in the original 
 French would comprise not only " authorised " transla- 
 tions, but those made where the copyright in the original 
 work has expired, or had not existed at all, as in the 
 case of a Russian work. 
 
 Article 6 provides against the possibility of it being 
 supposed that one " traducteur licite " could prevent 
 another from making a translation of the same work. 
 The second translator must not, however, borrow or 
 imitate the translation of the first in the field. 
 Articled 0~^) The description before given of the mode in which 
 
 Article 2 would operate with reference to copyright is 
 applied to the performance of dramatico-musical or lyric 
 works, whether unpublished or not. 
 
 As regards musical works, pures et simples, the same 
 remark applies ; but if such works are published, the 
 author must have " expressly declared on the title page 
 or commencement of his work that he forbids public 
 performance." 
 
 The distinction here taken between lyric works on the 
 one hand, and mere musical ones on the other, would 
 seem to have some connection with the enactment ex- 
 tortafchTi?'. cluding operas from the scope of the " Copyright Amend- 
 ment Act, 1888." In both cases the operatic composer 
 is treated with greater favour than the mere musical one. 
 During the existence (see supra) of the exclusive right 
 of translation the unauthorised public performance of 
 translations of lyric works is forbidden. 
 
 (16) There are great difficulties in the way of giving 
 effect to the notice reserving the exclusive right of 
 45&46Vic- performance. It has been held that the passage in the 
 Fuife™«f* " Copyright Amendment Act, 1882," making a similar 
 wfnL^°Gar- i^Gservation necessary, is not merely directory, but is a 
 dens, 1895, condition precedent to the existence of performing ri^ht. 
 
 2 Queen's -r, , ^- • j £ ■ -^.i j. 
 
 Bench, 429, iiut supposHDg an issuc IS made of some copies without 
 the reservation, are the persons who have only seen 
 those copies and have never seen any containing the 
 reservation provided with a good defence against an 
 action for wrongful performance ? Again, would it be a 
 good reply to such a defence that they had verbal notice, 
 or actual knowledge that there are in existence copies 
 containing the reservation? Again, supposing a piratical 
 print of copies which print omits the reservation, would
 
 INTERNATIONAL COPYRIGHT 85 
 
 a person, having seen these copies and no others, be 
 fixed with the costs of an action for injunction to restrain 
 performance by him? The injunction would certainly be 
 granted ; but the writer thinks the Court would struggle 
 to relieve the innocent transgressor from any further 
 punitive consequences. This immunity, however, if it 
 exists, could not be successfully invoked by a person 
 buying under suspicious circumstances, as, for instance, 
 from a hawker soiling in the street cheap copies of 
 popular music. 
 
 (17) Protection is granted to arrangements of music 
 
 of which unauthorised reproduction is forbidden, where -A-rticie lo. 
 the infringement consists in " the reproduction of a 
 particular work in the same form, or in another form 
 with non-essential alterations, additions, or abridgments, 
 so made as not to confer the character of a new original 
 work." 
 
 In the application of this article, tribunals may, if there 
 is occasion, conform themselves to the provisions of their 
 respective laws. 
 
 Article 10 is a divergence from Article 2, as regards a 
 member of some other country of the Union suing in 
 great Britain. Article 10 permits impliedly the repro- 
 duction of a work with alterations so made as to confer 
 the character of an original loork. Article 2 gives the 
 enjoyment of the rights which the law of the forum gives 
 to natives. The law of Great Britain does not permit its 
 natives to make such a reproduction ; as we have seen, 
 if the melody or theme be reproduced, it is an infrmge- 
 ment, however original be the new dress in which the 
 arranger may have clothed it. See chapter on infringe- 
 ments. 
 
 (18) The name of the alleged composer should be indi- Article ii. 
 Gated on his composition, the result of which will be that 
 
 in the absence of proof to the contrary, he will be per- 
 mitted to sue pirates in the countries of the Union. 
 This does away with the necessity of proof of title prima 
 facie, and throws the burden of proof on the defence. 
 
 In the case of anonymous or pseudonymous works, the 
 publisher whose name is indicated on the work is entitled 
 to protect the author's rights without further proof. The 
 tribunals may, however, require the production of a certifi- 
 cate as to the accomplishment of the formalities required 
 by the country of origin.
 
 sect. 17. 
 
 86 MUSICAL COPYRIGHT LAW 
 
 Article 12, (19) Pirated works may be seized on importation by 
 
 by^addi- the Competent authorities of the countries of the Union 
 i^arisl^*96/ where the original work is entitled to legal protection. 
 
 The seizure must take place conformably to the 
 domestic law of each State. 
 Pitts versus (20) Under the cases decided upon the 17th Section of 
 
 company^'^ the Copyright Amendment Act, 1842, it is illegal to import 
 1896,2 c^, into the British Dominions any piece of music printed 
 vict-.^ch. 45, and published in any country of the Union (though law- 
 fully purchased in that country) as against the owner of 
 the British Copyright conferred by the Berne Convention. 
 The case in which this question was decided was one 
 in which Eaff's well-known piano-piece, "La Fileuse," 
 first published at Leipsic, had been assigned to Patey and 
 Willis for all British copy- and performing-right. Copies 
 of the piece had been lawfully printed at Leipsic, by 
 Franz Ries, the original publisher, and the defendants, 
 George and Co., had imported into the United Kingdom 
 some of these copies. An injunction was granted by the 
 Court of Appeal to restrain the importation into, and sale 
 in this country of any such copies. 
 
 The Court of first instance decided that the case was 
 governed by Section 10 of the International Copyright 
 Act, 1844 ; and it must be confessed that the decision of 
 the Court of Appeal, consisting of Lords Justices Lindley 
 and Rigby (Lord Justice Lopes dissenting) came as a 
 surprise to the profession. Any one (except a lawyer) 
 reading Section 10 would suppose that the enactment 
 therein contained making illegal the importation of copies 
 of copyright music printed or reprinted in any foreign 
 country, except that in which such books were first 
 published, formed a complete code as to the importation 
 from abroad of music subject to a British International 
 Copyright. It is difficult to resist the impression that 
 that enactment tacitly renders legal the importation of 
 copies lawfully printed i)i the country of origin ; but Lord 
 Justice Lindley was probably influenced by a wish to 
 copinger, prevent the glaring injustice of a foreign publisher assign- 
 p*402.^^^°^' ing the copyright of music, the subject of a convention 
 between the country of origin and Great Britain, and not 
 taking care to stipulate in subsequent assignments or 
 sales that the second assignee or purchaser shall not flood 
 the English market in derogation of the first assignment ; 
 and his Lordship forced the hand of the Legislature so 
 
 See
 
 INTEENATIONAL COPYRIGHT 87 
 
 to speak, and utilised the generality of the Copyright 
 Amendment Act, 1842, Section 17, to control the more 
 directly applicable language of the International Copyright 
 Act, 1844, and prevent the hardship to the first assignee, 
 whose purchase of the British rights might be rendered 
 worthless. 
 
 An analogous point has arisen with reference to music 
 entitled to British copyright works lawfully reprinted in 
 America (which is not a country of the Union), and 
 imported into the United Kingdom in competition with 
 the home editions. In this case the highest authority 
 short of the Judicial Bench advised, that the importation 
 might be restrained under Section 17 of the Copyright 
 Amendment Act, 1842. If this were not the law, the 
 British copyright would be rendered worthless, as the 
 market might be flooded with cheap editions printed in 
 the United States. 
 
 (21) A clause of practical importance is contained in 
 the final protocol. The clause is as follows : — 
 
 " It is understood that the manufacture and sale of 
 instruments for the mechanical reproduction of musical 
 airs which are Copyright, shall not be considered as 
 constituting an infringement of musical Copyright." 
 
 This clause, no doubt, would be held to extend, to 
 legalise, not merely the manufacture and sale of the 
 instruments in question, but the stamping without 
 authorisation copyright music on the barrels or per- 
 forated rolls or discs. 
 
 It by no means follows, however, that the clause 
 legalises unauthorised performance in public of music, 
 as to which the composer has taken the precaution of 
 reserving the performing right. The language of the 
 clause, which in terms only includes copyright, would 
 seem carefully framed so as to refer only to copyright in 
 the strict sense, and not according to the loose construc- 
 tion of many British documents which mix up the two 
 rights. 
 
 It will be remembered that in the English case of 
 Boosey versus Whight, a firm of publishers claimed to i chancery, 
 restrain the unauthorised use of their copyright music ^^^' 
 by its reproduction on mechanical instruments, but their 
 action was dismissed. 
 
 The decision of Mr. Justice Stirling, in Boosey versus 
 Whight, and that of the Court of Appeal, were based, in
 
 88 MUSICAL COPYRIGHT LAW 
 
 great measure, on the words of the Copyright Amend- 
 ment Act, 1842, which was passed at a period when 
 mechanical musical instruments were all but unknown. 
 The legislator, therefore, could not, it was held, have 
 contemplated the discs and rolls which fed them in using 
 the phrase " sheet of music." 
 
 The French Courts have held, not inconsistently with 
 this principle, that the reproduction on the discs or 
 cylinders of phonographs and gramaphones, followed by 
 publication and sale, of copyright words, is an infringe- 
 ment of the exclusive right of the proprietors (in this 
 case Messrs. Enoch, the Parisian musical publishers), and 
 an injunction, damages, and seizure of the piratical discs 
 were decreed. The judgment dealt, in this sense, with 
 copyright luords, whether set to music or not, but 
 exempted the reproduction of music, though copyright, 
 on the ground of the loi of May 16, 1866, which declares 
 " that the manufacture and sale of instruments used for 
 the reproduction mechanically of copyright musical airs 
 do not constitute piracy, as contemplated by the previous 
 existing law of July 19, 1793, combined with the Articles 
 425 and following ones in the penal code." 
 
 Article 14. (22) Article 14 is the clause upon which the most 
 
 serious and difficult questions have been raised. It deals 
 with the nature of works, qua date, which will fall within 
 the scope of the Convention ; Article 14 must be read in 
 combination with Clause 4 of the final protocol and with 
 Article 2, Clause 2, of the additional Act of Paris, 1896. 
 
 ij&nri versus It is clear, on authority, that Article 14 does not revive 
 
 3 Ch^.^ol^^' copy- or performing-right which has once ceased to exist 
 from effluxion of time. It has been held that a copyright 
 which has been allowed to lapse, from neglect to comply 
 with the provisions for registration contained in the 
 
 H^j^f. International Copyright Act, 1844, is revived by Article 
 
 fufuoiiowa" ■'"^ °^ *^^^ Berne Convention and Section 6 of the 
 1893, 2 ' International Copyright Act, 1886. The author ventures 
 Benoh,^. to differ respectfully from the decision for the reasons 
 given in the Appendix. 
 
 (28) An Order in Council, of April 30, 1894, was made 
 for the purpose of giving force to a treaty between Great 
 Britain and Austria-Hungary. This Order came into 
 operation on May 11, 1894. 
 
 By this Convention authors and their legal represen- 
 tatives, including publishers, enjoy reciprocally in the
 
 INTERNATIONAL COPYRIGHT 89 
 
 dominions of the contracting parties the advantages which 
 are, or may be, granted by law there for the protection 
 of " works of literature or art " defined as comprehending 
 dramatic musical works and musical couipo.sitions with 
 or without words. Consequently authors of works first 
 published in the dominion of one of the contracting 
 parties have, in the dominions of the other, the same 
 protection and legal remedy against infringement, as if 
 the work had been first published in the country where 
 the infringement may have taken place. 
 
 In the same manner the authors and their legal repre- 
 sentatives, who are subjects of one of the contracting 
 States, or who reside within its dominions, enjoy in the 
 dominions of the other the same protection and the same 
 legal remedies against infringement as though they were 
 subjects of, or resident in, the State in which the infringe- 
 ment has taken place. 
 
 These advantages shall only be guaranteed when the 
 work is protected by the laws of the State where the 
 work was first published, and the duration of protection 
 in the other countries shall not exceed that which is 
 granted to authors in the country of origin. 
 
 Article 2. The right of translation forming part of 
 the copyright protection is assured to it under these 
 conditions. If, at the end of ten years after the expiry 
 of the year in which a work to be protected in British 
 dominions, on the basis of this Convention, has first 
 appeared, no translation into English has been published, 
 "the right of translating the work into English shall no 
 longer, within those dominions, belong exclusively to the 
 author." 
 
 Article 3. The Article with reference to authorised 
 translations is similar to that contained in the Berne 
 Convention. 
 
 With reference to the retrospective effect of this Con- 
 vention the clause (Article 8) will be found, together 
 with a comment upon its tenor, in the appendix infra. 
 
 Article 9. This Convention applies to all " colonies 
 and foreign possessions " of Great Britain except See statu- 
 
 The Dominion of Canada. inCounciTof 
 
 TViP rianp February 2, 
 
 J.ne V^dpe. 1895(No.35), 
 
 New South Wales. isos^cno^^' 
 
 It will be seen that the above clauses give, in most 247). 
 respects, the same protection as that conferred by Article 2
 
 90 MUSICAL COPYRIGHT LAW 
 
 of the Berne Convention, supplemented by the addi- 
 tional Article of Paris, 1896, but in some respects the 
 Austrian document goes farther, as it allows the same 
 protection in the dominions of each contracting party to 
 those residing within the dominions of the other, as if the 
 person claiming protection ivere a subject of, or resident 
 in, the State wiiere the infringement may have taken 
 place (called herein " the country of the forum ")• 
 
 A condition is annexed which does not, in terms, occur 
 in the Berne Convention, viz., the work must be 
 entitled to protection in the country of origin. 
 
 Special exception is made in the case of Hungary, from 
 the rule that only the formalities required by the law of 
 the country or origin shall be necessary. The enjoyment 
 of right in Hungary is to be subject to the conditions 
 requn-ed by both Hungarian and British law. 
 
 (24) The procedure in any action arising on inter- 
 national rights does not generally differ from the forms 
 of litigation, in cases where the whole subject-matter is 
 intraterritorial. It is a maxim of international law that 
 the lex fori governs procedure. 
 
 (25) A decision somewhat connected with this axiom 
 Boumi"°syn- ^^^ made by the Court of first instance in England, to 
 dicate versiis the effect that the English Court could not interfere at 
 1 Ch." 534. ' the instance of the English proprietor of the performing 
 
 right of music by an English composer, to restrain un- 
 authorised performance in Berlin, a town in a country of 
 the Union. According to this decision, proceedings to 
 restrain such infringement, though the infringer be a 
 British subject, must be taken in the foreign Court, and 
 according to the foreign procedure. 
 
 There would seem to be a doubt whether this decision 
 is correct. It is submitted that where an action is purely 
 in personam, not involving any question as to anything to 
 be done to an " immeuhle " on foreign soil, and the defen- 
 dant is resident in England, an injunction may be 
 obtained against him. 
 Fo t 3d '^^^ general rule cited, in an able treatise on private 
 edition, p. international jurisprudence is, that an English Court has 
 ^°^" jurisdiction to try actions based on torts to the person, 
 
 though committed abroad, and the case just cited fell 
 within that description. There is no jurisdiction, how- 
 ever, to try actions relating to title, or to torts arising in 
 respect of foreign immovables.
 
 INTERNATIONAL COPYRIGHT 91 
 
 This seeins to be the recognised distinction, but the 
 decision in the case of " Morocco Bound " Syndicate versus 
 Harris may, perhaps, be supported on the ground that it 
 was doubtful whether the injunctio]! could have been 
 enforced against absent defendants. The general rule 
 of practice is one of convenience rather than of law, 
 namely, that the defendant is sued in the country where 
 he is resident.
 
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 J'o a cB a
 
 94 
 
 CHAPTER VII. 
 
 SHORT SCHEME OF ARRANGEMENT OF 
 CHAPTER VII. 
 
 Copyriglit. 
 
 of Foreign 
 Bepriuts. 
 
 Copyriglit. 
 
 Importation 
 of Foreign 
 Reprints. 
 
 AS TO ALL COLONIES EXCEPT CANADA. 
 
 Copyright under Act of 184'2. 
 
 Koutledge versus Low. 
 
 Statute of 1886. Sections 8 and 9. 
 
 Berne Convention, accession for the colonies. 
 
 The question of foreign reprmts ; importation, where unauthorised 
 by Statute, is piracy. Section 17 of the Statute of 1842 practically 
 ignored. Foreign Reprmts Act. The Customs Consolidation Acts, 
 1876 and 1889 : how the duties are levied, and, if levied, to whom 
 paid over. 
 
 A short statement of the various statutes made under the foreign 
 reprints by different colonies, for regulatmg the payment of duties 
 to be collected as the price of suspending the prohibition to 
 import. 
 
 AS TO CANADA. 
 
 Canadian Statute of 1875. 
 The Imperial Statute of same date. 
 Smiles versus Belford. 
 
 The Imperial Book Company versus Adam and Charles Black. 
 Foreign Reprints Act adopted by Canada. 
 Question of importation qua Canada. 
 Announcement of cesser to levy the 12h per cent. duty. 
 Tariff of 1894. 
 
 The Imperial Book Company versus Black, from the point of 
 view of uuportation. 
 
 Colonial 
 Copyright. 
 
 CONTENTS OF CHAPTER VII. IN DETAIL. 
 
 (1) Colonial copy and performing right. State of the law under 
 the Copyright Amendment Act, 1842. 
 
 (2) Change in the law by the Statute of 1886 ; definition of 
 " British possessions " ; registration not necessary, wlien. 
 
 (3) Power to adapt imperial Statutes to the existing law of any 
 colony. 
 
 (4) Bearing of the Berne and future Conventions on Colonial copy- 
 right. Article 19 of Berne Convention. Note, meaning of the term 
 " country of origin" as between the mother country and the colonies.
 
 COLONIAL COPY- AND PERFORMING RIGHT 95 
 
 (5) The question of importation of foreign reprints generally. Colonial 
 
 (6) Abuses. Section 17 of the Statute of 1842 ignored in practice. Importation. 
 
 (7) Foreign Reprints Act. 
 
 (8) Question whether the Colonial Statutes comprise music. 
 
 (9) Stamping copyright works on importation not always required. 
 
 (10) How the duties are levied. (Customs Consolidation Acts, 
 1876 and 1889). 
 
 (11) How the duties are dealt with, if and when levied. 
 
 (12) The result discreditable to the colonial public and the supine 
 British Government. 
 
 (13) A suggestion of Mr. Daldy to partially remedy the abuses. 
 
 (14) Certain of the Statutes relating to importation of foreign 
 reprints, but also regulating local copyright. 
 
 (15) A table of the less important Colonial Statutes, having for 
 their main object to fulfil the requirements of the Foreign Reprints 
 Act. 
 
 (16) Copyright in Canada. Canadian 
 
 (17) Canadian Statute of 1875. Copyright. 
 
 (18) The Imperial Statute of 1875 giving force to the latter. 
 
 (19) Smiles versus Belford. 
 
 (20) That case discussed in the Imperial Book Company versus 
 Black and another, from the point of view of the right generally. 
 
 (21) Foreign Reprints Act adopted by Canada. Canadian 
 
 (22) Question of prohibition on importation qua Canada. Importation. 
 
 (23) Tariff of 1894. 
 
 (24) The Imperial Book Company versus Black from the point of 
 view of importation. 
 
 COLONIAL COPY- AND PERFORMING RIGHT. 
 
 (1) Since the passing of the Statute of 1842, and pre- 
 viously to the International Copyright Act, 1886, music 
 first published or performed in the United Kingdom, or 
 simultaneously published or performed there and in 
 
 any British possession, was protected (as it still is) over ,?°;i^*Low! 
 an area which includes all the British dominions. s^Engiish' 
 
 Prior publication or performance in any British posses- Appeais.ioo. 
 sion other than the United Kingdom gave no right of 
 protection in the United Kingdom, or in any British 
 possession, except possibly in the State of origin under 
 some local law. 
 
 (2) The International Copyright Act, 1886, contains a 49& soviet, 
 Section enacting in effect that the Copyright Acts apply 8%^^' ^®°'^" 
 to a musical work " first published or performed in a 
 
 British possession other than the United Kingdom, m like 
 manner as they apply to a work first pubHshcd or per- 
 formed in the United Kingdom." 
 
 Certain provisions follow as to registration and technical 
 points of legislation, which are mentioned later.
 
 96 
 
 MUSICAL COPYRIGHT LAW 
 
 Section 11. 
 
 Section 8. 
 
 Section 9. 
 
 Order of 
 November 
 28, 1887, 
 
 " British possession " in this Statute includes any part 
 of His Majesty's dominions exclusive of the United 
 Kingdom. 
 
 Where parts of such dominions are under both a central 
 and a local Legislature, all parts under one central Legis- 
 lature are deemed one British possession. 
 
 The effect of this legislation is that a piece of music 
 first pubHshed or performed in any part of His Majesty's 
 dominions, or simultaneously there and in any other 
 country, will be entitled to protection throughout the 
 whole area of such dominions. 
 
 If the law of the British possession, being the country 
 of origin, provides for registration, no other registration 
 is necessary, nor is the statutory delivery of copies 
 required in any case. It follows as a deduction that if 
 there is no registration in the country of origin, registra- 
 tion at Stationers' Hall is required, in the manner herein- 
 before stated with reference to home compositions. 
 
 (3) Power is given to His Majesty by Order in Council 
 to modify the home Statutes relating to copyright and 
 performing right with reference to musical compositions 
 first published or performed in any British possession 
 where an existing local Act or ordinance exists. The 
 right of a British possession to pass domestic Statutes 
 is not interfered with. 
 
 (4) The International Copyright Act, 1886, enacts that 
 an Order in Council may, by declaration, exclude the 
 application of imperial legislative enactments under 
 the International Copyright Acts and orders to any 
 British possession, except so far as is necessary for 
 preventing prejudice to previously acquired rights; but 
 save, as provided by such declaration, the International 
 Copyright Acts shall apply to every British possession, 
 as if it were part of the United Kingdom. 
 
 Those parts of the Statute of 188G which do not relate 
 specially to British possessions (other than the United 
 Kingdom) have been already stated, so far as necessary, 
 and the reader is referred to Chapter VI. for them, also to 
 the discussion of the Berne Convention in the same 
 chapter. 
 
 The order which sets forth the Berne Convention in 
 effect confers upon the composers of music first published 
 or performed in a country of the Copyright Union the 
 same right of copyright (sic), and for the same period, as
 
 COLONIAL COPY- AND PERFORMING RIGHT 97 
 
 if the work had been first produced in the United King- 
 dom, and this right is to have effect throughout all 
 British possessions. 
 
 Article 19 of the Berne Convention confers the right 
 for their colonies or foreign possessions to accede thereto 
 at any time upon all countries of the Union. 
 
 They may do this either by a general declaration 
 comprehending all their colonies or possessions within 
 the accession, or by specially naming those comprised 
 therein, or by simply indicating those which are excluded. 
 
 In the proces verbal of signature the British pleni- 
 potentiaries stated that the accession of Great Britain 
 comprised all the colonies and foreign possessions of the 
 Crown. 
 
 At the same time they reserved the power of announc- 
 ing the denunciation of the Convention at any time by 
 one or several of the following colonies or possessions, 
 viz., India, Canada, Newfoundland, the Cape, Natal, New 
 South Wales, Victoria, Queensland, Tasmania, South 
 Australia, Western Australia and New Zealand. 
 
 (5) These facts raise a question never before raised, 
 until it was suggested in the work so often before quoted sm^t^h and 
 on musical and dramatic copyright, viz., what is " the Weatheriy. 
 country of origin" of a work first published in, e.g., Mel- 
 bourne, and which it is desired to protect in Paris? In 
 popular parlance Victoria would be the country of origin, 
 but it may be argued that as she comes in passively under fjf|g^°4Pt]^ 
 the winiT of the mother country, the latter fills that edition, 
 
 1 , '^ •' p. 505. 
 
 character. 
 
 The Berne Convention (Article 2) subjects the enjoy- 
 ment of copy- and performing-right " to the accomplish- 
 ment of the conditions and formalities prescribed by law 
 in tlie country of origin.'' 
 
 In order to sue in France, must the author observe the 
 formalities required by British or Victorian law? 
 
 In the case of works having their origin in the United 
 Kingdom, the name and place of abode of the proprietor 
 is required to be entered on the register before suing ; the 
 place of abode of the publisher is not required. Suppose 
 the latter item to be necessary in Victoria and to be 
 omitted by accident. If the law be that the Victorian 
 forms must be followed, that is, that Victoria, and not 
 the United Kingdom, is the country of origin, the action 
 would fail in France, as the Victorian formalities had not 
 been complied with. 
 7
 
 98 
 
 MUSICAL COPTEIGHT LAW 
 
 Cutler, 
 
 Smith and 
 
 "Weatherly, 
 
 musical and 
 
 dramatic 
 
 copyrigM, 
 
 104. 
 
 See Cop- 
 
 inger, 4th. 
 edition, p. 
 505. 
 
 It will be seen that Section 8 of the International Copy- 
 right Act, 1886, has no application to a case of international 
 procedure, but only to cases arising between a colony and 
 the mother country. If the latter be held to be " the 
 country of origin " (which would be rather a far-fetched 
 conclusion in the case of a work first published so far off 
 as Australia), the registration would have to be according 
 to forms at Stationers' Hall, whether the colony m 
 question had the same forms, different forms, or no 
 registry at all. 
 
 Another question arises on the point of " origin." 
 Supposing any British possession to have passed a law 
 conferring on domestic authors copyright for a longer 
 period than that which prevails in the mother country, 
 say fifty years from death. ?The right of the colonial 
 author in a country of the Union is limited by Article 2 
 of the Berne Convention to a period not exceeding that 
 granted by the law of the country of origin. If Great 
 Britain is the country of origin the term of copy- and 
 performing-right in France is cut down to forty-two years 
 or seven years after the author's death ; if the colony 
 fills that character, the term will be that of France (and 
 also of the colony), viz., fifty years from the author's 
 death. 
 
 (6) The subject of piratical importation into the 
 Colonies of works enjoying copy- and performing-right 
 in the United Kingdom has been a fertile source of 
 heart-burning between British authors and the colonial 
 public, and the Legislature has made so many — in many 
 cases half-hearted— efforts to control abuses in this con- 
 nection that the matter deserves separate treatment, even 
 in a work of such modest dimensions as the present. 
 
 In collecting materials the writer has been largely aided 
 by a work published for the Copyright Association, and 
 containing the Colonial Statutes bearing on the subject 
 of importation ; and he has received valuable assist- 
 ance from the terse and admirable preface of the late 
 Mr. Frederick Daldy, who had consecrated a large part 
 of an active and intellectual life to the study of colonial 
 — especially of Canadian — legislation in the matter of 
 copyright, and had made himself one of the first authori- 
 ties on the subject. 
 
 In colonies with reference to which no Statute 
 authorising importation has been passed, and with refer-
 
 COLONIAL COPY- AND PERFORMING RIGHT 99 
 
 ence to which no Order in Council has been made, the 
 introduction without leave of the proprietor, of books 
 protected by British Copyright Statutes is defensible 
 by no principle of law, equity or justice. In the case 
 of many colonies, however, the Imperial Legislature 
 has interposed, and attempted to regulate the difticult 
 questions arising between British authors and the 
 colonial public, as to copyright in works published in 
 the United Kingdom. 
 
 The reader will remember that by Section 17 of the 
 Act of 1842 (in effect), importation was forbidden into 
 any part of the British dominions for sale or hire of any 
 printed copyright book first composed or written, or 
 printed and published, in the United Kingdom, and 
 reprinted out of the British dominions ; and if any 
 person, not being the proprietor or authorised, should 
 import for sale or hire, or should knowingly sell, publish 
 or expose for sale or let to hire, or have in his possession 
 for sale or hire, any such book, the same might be for- 
 feited, seized and destroyed by an officer of Customs, and 
 a penalty is imposed. 
 
 The prohibition in this Section, and the enactment 
 against injportation contained in the Customs Consolida- 
 tion Act, 1876, hereinafter stated, were practically ignored 
 in the colonies ; and foreign reprints of British books 
 were poured wholesale into the British possessions to the 
 great injury of the authors, who were made to supply 
 gratuitously the colonial public with literature to such 
 an extent that even the supineness of the British Govern- 
 ment where authors are concerned was somewhat shaken, 
 and plans were devised for remedying the evil. A para- 
 doxical one which has met with no greater success than 
 it deserved was put into execution by the Statute stated 
 in the next paragraph. 
 
 (7) This Statute is entitled: "An Act to amend the 
 law relating to the protection in the Colonies of works 
 entitled to copyright in the United Kingdom." This Act ch.'es^ ^^°*'' 
 empowered the Crown to pass Orders in Council declarmg 
 (in effect) that the prohibitions contained in any Imperial 
 Acts against the importing, selling, letting out to hire, 
 exposing for sale or hire, or possessing foreign reprints 
 of books composed, written, printed, or published in 
 the United Kingdom and entitled to copyright therein, 
 should be suspended as regards any given colony. This
 
 100 MUSICAL COPYRIGHT LAW 
 
 suspension was subject to a proviso that the colony in 
 question should pass a local law making due provision 
 for protection of the rights of British authors within its 
 limits, and should transmit the same in the proper 
 manner to the Secretary of State. The Statutes are in 
 many cases framed on the models of the home copyright 
 Acts, hut are nevertheless often rightly conceived in prin- 
 ciple ; and if properly administered would fairly protect 
 the copyright owners' rights, but the laxity with which 
 the law has been enforced, or rather neglected to be 
 enforced, has left matters much worse than they were 
 before legislation. 
 
 The general scheme of document which, with differ- 
 ences of form and detail, has been passed in the several 
 colonies, comprised in substance these items, viz., a 
 recital of the Statute of the 10th and 11th Vict., c. 95, 
 and the Order in Council applying to the case, and enact- 
 ments : (1) That "it shall be lawful to import into the 
 colony all books being reprints of works first composed 
 or written, or printed or published in the United 
 Kingdom " ; (2) that there shall be paid an ad valorem 
 duty therein specified in favour of the copyright owner 
 on every such importation ; (3) that it shall not be 
 lawful to import any reprint " hereby made liable to 
 duty, contrary to the true intent and meaning hereof, or 
 knowingly to sell, publish, or expose for sale, or let to 
 hire or have in his or her possession for use, sale or hire 
 any such reprint as aforesaid." 
 
 A further allusion to the Statute in each case will 
 be found later on, and this, it is hoped, will prove suf- 
 ficient for practical purposes. It would have been im- 
 possible to set out the whole of each Statute verbatim 
 from want of space ; and there are many clauses which 
 would be useless to the student of musical copyright law. 
 
 (8) In a few cases only are musical compositions brought 
 i7i terms within the purview of the local act ; in the 
 majority of instances, the term "books" is used without 
 any definition extending the sense to " sheets of music " 
 as is done in the Imperial Copyright Amendment Act, 
 1842 ; but the general policy and course of Imperial 
 legislation, and the references in the Colonial Acts to 
 the Act of 1842, make it sufficiently clear in most cases 
 that musical compositions would be construed to be 
 included as " books."
 
 COLONIAL COPY- AND PERFORMING RIGHT 101 
 
 The exceptional cases in which music is referred to in 
 terms are those of Newfoundland, Canada, Trinidad and 
 Victoria. 
 
 In the Statute applying to Saint Vincent some embar- 
 rassment is caused by the language of the interpretation 
 clause. "Book" is to mean " volume, sheet of letter 
 press and dramatic piece"; "dramatic piece " includes 
 " tragedy, comedy," &c., or "other musical or dramatic 
 entertainment." The definition of book in its enumera- 
 tion of items omits " sheet of music" (as if on purpose), 
 and " dramatic piece " nowhere occurs in the Act except 
 in the interpretation clause. A musical entertainment 
 has been judicially held not to include an isolated piece 
 of music. The special mention of " dramatic piece," and 
 the careful omission of any reference to "a sheet of 
 music," does look at first sight as if the latter subject- 
 matter had been forgotten by the Legislature, or pur- 
 posely excluded ; but the writer doubts whether this 
 difficulty would not be got over, and whether music 
 would not be treated as constructively brought within 
 the scope of the Act. 
 
 (9) In the case of seventeen colonies the local Statutes 
 require all copies legally imported into the colony to be 
 stamped, in order that all unstamped copies may bear 
 negative evidence of being contraband. This to some 
 extent operates as a check on smuggling. In the 
 Bahamas, Mauritius and Canada the Statutes contain no 
 enactment making stamping compulsory, and the absence 
 of this precaution has facilitated the unrestrained law- 
 lessness which in the Dominion robs the British author 
 of his just dues. 
 
 In all cases in which the Colonial Governments have 
 by imposing duties complied with the conditions required 
 to be fulfilled before the prohibition on importation is to 
 be suspended, those duties are not to be levied or col- 
 lected until the copyright to be protected is duly entered 
 at the London Custom House. 
 
 (10) Under the Customs Consolidation Acts of 1876 and 
 1889 : 
 
 (i.) Copyright books first composed or written gg ^ ^^ 
 or printed in the United Kingdoin, and printed and Vict., ch. 36, 
 reprinted in any other country, as to which the ^®° ' 
 proprietor or his agent " shall have given to the Com- 
 missioners of Customs a notice " in writing, duly
 
 102 MUSICAL COPYRIGHT LAW 
 
 declared, that such copyright exists, and stating when 
 it will expire. 
 part°!sec^t^i. (^i-) -I^ooks, first published in any State other 
 
 than the United Kingdom, copyrighted in the United 
 Kingdom under the International Copyright Act, 
 1886, or Orders in Council thereunder, printed or 
 reprinted in any State other than that in which they 
 were first published, and as to which the owner or 
 his agent shall have given such notice, with a 
 declaration subscribed before a collector of Customs 
 or a Justice of the Peace that the notice is true ; 
 
 are prohibited to be imported into the United 
 Kingdom. 
 
 8ect.°iVf^^' (^^^-^ -^^y copyi'igl^t books first composed, printed 
 
 or written in the United Kingdom, and printed or 
 reprinted in any other country, as to which the 
 owner or his agent shall have given such notice, 
 are prohibited to be imported into the British 
 possessions abroad ; if imported, all books 
 falling within classes (i.), (ii.), and (iii.), shall be 
 forfeited, and books falling within classes 
 (i.) and (ii.) may be destroyed, or otherwise 
 disposed of as the Commissioners may direct. 
 By Section 151 " The Customs Acts " including that 
 now being stated, are not to extend to any such posses- 
 sion as shall by local Act or ordinance have provided, or 
 may thereafter with the owners' sanction make entire 
 provision for the management and regulation of the 
 Customs of such possession. 
 
 Lists of copyright books as to which the notices shall 
 have been given are to be publicly exposed at the Custom 
 Houses in the several ports in Great Britain and in the 
 Colonies. 
 Sect. 45. The Act of 1876 contains machinery for dealing with 
 
 the complaint of any person who may be damnified by a 
 wrong insertion in a list. The Colonial Customs Officer 
 has under this regime to search a long and fragmentary 
 register made up of notices sent from London from time 
 to time which are unclassified, and not even alphabeti- 
 cally arranged. There is no machinery for giving the 
 copyright owner notice as to duties which may have been 
 levied for his benefit, and he is at the mercy of others 
 whose zeal and conscientiousness may or may not out- 
 weigh their natural supineness, and who may or may not
 
 COLONIAL COPY- AND PERFORMING RIGHT 103 
 
 spasmodically make an effort to do their duty by a person 
 — the J3ritish author — whom patriotism teaches them to 
 regard with a certain hostility. 
 
 (11) Moreover, under fourteen Colonial Statutes the See Mr. 
 duties have to be remitted to Her Majesty's Customs in Rce^U)\he^" 
 London. In two cases they are to be dealt with as the statutes^'^ °^ 
 Crown may direct, and the writer believes that no direc- PT'^'edfor 
 tions respecting them have been given. right^Ass'o- 
 
 In one case nine-tenths of the duties are to be held for i889?^ ^^ 
 the owner till claimed ; and the owner presumably does 
 not know when and what duties are held for him. 
 
 Under fourteen Statutes registration at Stationers' Hall 
 in London is a condition precedent to collection of any 
 duties, a wholly useless and expensive formality. 
 
 (12) Under these circumstances, forming a typical 
 instance of the manner " how not to do it," and a striking 
 example of the modus operandi of the circumlocution 
 office, the luckless British author has to put up with loss 
 of his just remuneration for the works which form the 
 staple of literary recreation for the colonials, whose 
 Statutes are referred to hereafter. In practice, when any 
 duties are levied, a lump sum is remitted to a publisher, 
 who has to dissect and apportion it as he can. 
 
 The above details are given on the authority of the late 
 Mr. Daldy, and of other experienced publishers, whose 
 knowledge of the facts is practical and melancholy. 
 
 (13) A suggestion has been made by Mr. Daldy which 
 is entitled to all the respect attaching to anything coming 
 from him, to the effect that matters might be less unsatis- 
 factory if the London Custom House were to transmit 
 to each colony an alphabetical register, made up to the 
 end of any given year, with annual supplements for the 
 use of Colonial Custom House officers. Every five years 
 this register should be rearranged and reprinted up to 
 date. This suggestion, which was published by the 
 maker in 1889, has not ever been adopted. At all events, 
 in the whole of the year 1903 one of the largest London 
 publishers states that he only received colonial duties to 
 the amount of a few shillings ; and unstamped copies 
 continue to be imported without any duties being levied, 
 much less paid over to the owners. 
 
 The list to be transmitted, as suggested by Mr. Daldy, 
 would hardly be a practical remedy, unless publishers 
 habitually registered their copyright at Stationers' Hall.
 
 104 MUSICAL COPYRIGHT LAW 
 
 That, at least, is the opinion of some very experienced 
 London publishers. 
 
 (14) The following is a sj'nopsis of the Colonial Statutes 
 purporting to provide for the payment of duties to British 
 authors, and so to satisfy the conditions required b}'' the 
 British legislation to be fuliilled as the price for the per- 
 mission to import into the British possessions. 
 
 In some important instances a short analysis of the 
 Statute is given ; in others, merely the title, general 
 object and the dates. 
 
 The writer hopes to be excused for inserting a resume 
 of the Indian and Victorian Copyright Statutes, on 
 account of their great importance and of the questions 
 arising on the former with reference to music ; moreover, 
 the Indian Statute is difficult to procure. He admits 
 that they do not fall strictly within the scope of this 
 paragraph, which is more particularly intended to deal 
 with the importation question. 
 the^CoHec^ Copyright in India is still governed mainly by an Act 
 tionofsta- passed by the Eight Honourable the Governor-General, 
 Sldforthe oil December 18, 1847. No mention is made of music, 
 Assoc'^aMon ^^^® subject-matter of copyright is simply described as 
 in 1889. a " book," undefined by any interpretation clause. It 
 appears to be the opinion of Mr. Copinger, in his 
 treatise (which is unequalled for research and pains in 
 collecting data), that music is unprotected in British 
 India, and no doubt there is much to be said in favour 
 tion.^p. 533! of this view from the legal side of the question, especially 
 as the Statute, with some apparent intention, omits every 
 section of the Statute of 1842 dealing with music and 
 regulating the rights and obligations of musical com- 
 posers. The present writer, however, inclines to the 
 opinion that the reference to the Imperial Act of 1842 
 (see infra) in a recital is sufficient to connect the Indian 
 Act with the course of Imperial copyright legislation, and 
 that the intention of the framers was to assimilate the 
 subject-matter to that of the home copyright Statutes. 
 It cannot, however, be said that there is anything point- 
 ing to an intention to confer exclusive performing right 
 over music. 
 
 The Statute recites that it is doubtful (1) whether the 
 right called "Copyright " can be enforced by the common 
 law of England in territories subject to the East India 
 Company into which the law has been introduced ; and
 
 COLONIAL COPY- AND PERFORMING RIGHT 105 
 
 (2) whether Copyright can be enforced by virtue of equity 
 in other parts of those territories ; (3) that it is desirable 
 that Copyright should be enforceable in those territories 
 universally ; and (4) that it is doubtful whether the 
 Copyright Amendment Act of 1842 has made provision 
 for the enforcement of the said right in every part of the 
 said territories subject to the Government of the East 
 India Company. 
 
 Section 1. The Copyright in every book published in 
 the author's lifetime shall endure for a term therein 
 mentioned being similar to that provided by the Imperial 
 Act of 1842 ; and in every book published after the 
 author's death for the term of forty-two years from first 
 publication. In the first case the right is to be the 
 author's property ; in the second case that of the pro- 
 prietor of the MS., from which such book is first 
 published. 
 
 Sections 3, 4, 5, and 6 deal with the registration 
 machinery, in a mode similar, mutatis mutandis, to the 
 analogous Sections in the Act of 1842 ; and Section 14 
 follows the useless British procedure making registration 
 previously to suing a condition precedent. 
 
 Section 5, moreover, perpetuates the discrepancy 
 between the body of the Statute and the scheduled form, 
 the one requiring the abode of the publisher to be 
 entered ; the other the place of publication. 
 
 Section 7 makes it a punishable offence to " print or 
 cause to be printed, either for sale or exportation, any 
 book in which there shall be subsisting Copyright " 
 without consent ; or to have in possession, for sale or 
 hire, any "such book so unlawfully printed" without 
 consent ; and the Section defines the nature of liability 
 to an action for damages according to the precise juris- 
 diction of the territory where the Act was committed. 
 
 Section 8 relates to procedure, and is similar to Section 
 26 of the Statute of 1842. 
 
 Under Section 12 piratical copies are to be the property 
 of the Copyright owner, see Section 23 of the Statute of 
 1842. 
 
 Section 16 limits the time for suing to twelve months 
 next after the offence is committed. 
 
 In the collection of Statutes published in 1889 from 
 which the above are copied, there is a note appended bj^ 
 Mr. Daldy expressing his belief that the above Act will
 
 106 MUSICAL COPYRIGHT LAW 
 
 soon be repealed, and a consolidation Act passed, a 
 prophecy wbich, however, has not been fulfilled. In an 
 Indian Act dated in 1867 (which does define " book " as 
 including music), and which regulates the press, it is 
 enacted, in Section 3, that the printer's name and place of 
 tuie more^' printing, and, if the book be published, the publisher's 
 fn Copfnger! name and residence, are to be printed on each copy ; and 
 4th edition,' in Section 9, that three printed or lithographed copies of 
 every book, printed or lithographed in British India, shall 
 be delivered by the printer within one calendar month 
 after the day in which any book shall be delivered out of 
 the press, notwithstanding any agreement between the 
 printer and publisher, at such place and to such officer as 
 the local government shall from time to time direct ; and 
 by Section 18, which deals with registration entries, 
 assignments of copyright by entry on the register, are 
 made free of duty by the Indian Stamp Act of 1879, 
 Schedule II. No. 5. 
 
 Injunctions to restrain infringement of Cop3''right 
 depend upon the civil procedure code of 1882. Law 
 number 14, of 1882. 
 
 Copyright in Victoria is governed by a Statute of that 
 colony, entitled " The Copyright Act, 1869," and which 
 came into operation December 1, 1869. 
 
 The word "book" in this Statute includes "sheet of 
 music." This Statute, which is very lengthy and verbose, 
 substantially resembles the Imperial one of 1842 in the 
 following particulars. 
 
 (i.) The definition of Copyright. 
 
 (ii.) The term of Copyright {verbatim). 
 
 (iii.) (Section 19.) The regulations as to keeping a book 
 of registry (nearly verbatim). The Section perpetuates 
 the discrepancy between the Section 13, of the Act of 
 1842, and the scheduled form. Section 13 requires the 
 "place of abode of the publisher" to be entered; the 
 schedule requires "place of publication." 
 
 (iv.) (Section 20.) The entries to be made in such 
 registry (nearly verbatim). 
 
 (v.) (Section 21.) The remedy for piracy : the offences 
 mentioned in Section 15 of the Act of 1842, printing, &c., 
 in any part of the British dominions, are by the Colonial 
 Act punishable where committed in the Colony of 
 Victoria, and entail a penalty of £10 for each offence 
 besides liability to damages.
 
 COLONIAL COPY- AND PERFORMING RIGHT 107 
 
 (vi.) (Section 22.) This is with a triflincj addition a 
 copy of Section 16 of the Act of 1842, and deals with a 
 question of practice in the action for damages. 
 
 (vii.) (Section 23.) This is a copy of Section 17 of the 
 Act of 1812, with the substitution of " the Colony of 
 Victoria" for the United Kingdom. It deals with the 
 offences of piratical importation, and consequential sale, 
 publication, and exposure for sale or hire of piratically 
 imported wares. 
 
 (Section 26.) No assignment of musical copyright is 
 to carry performing right without an entry in the registry. 
 See Section 22 of the Act of 1842. 
 
 (Section 27.) This is a copy of Section 23 of the Act 
 of 1842, and enacts that pirated books shall become the 
 property of the owner. 
 
 (Section 28.) This is in the same terms as Section 24 
 of the Act of 1842, and makes registration a condition 
 precedent to suing or taking any proceeding. 
 
 (Section 29.) This confers sole liberty of performance 
 in Victoria upon the author of a musical production, 
 whether printed and published or not, for the term pro- 
 vided for copyright in books. The provisions in the Act 
 in respect of copyright, where not inconsistent with 
 Sections 29 and 30, are to apply to performing right, save 
 that the first public performance is to be equivalent to 
 the first publication. 
 
 It is only to be necessary to register the title of the 
 piece, the name and place of abode of the publisher, the 
 composer and of the owner, and the time and place of 
 first publication. 
 
 (Section 30.) This enacts penalties for the infringe- 
 ment of performing right. 
 
 (Section 46.) This deals with the offence of making 
 false entries in a register book, and adds as punishment 
 imprisonment in addition to a section sinnlar to the 
 punitive clause in Section 12 of the Act of 1842. 
 
 (Section 47.) Assignments and licences are to be in 
 writing. 
 
 (Section 48.) Limitation of actions to twelve calendar 
 mouths next after the offence. 
 
 (Section 50.) This relates to the amendment of the 
 register. 
 
 (15) In the following cases only the dates or reference 
 numbers of the Statutes are given, with the dates of
 
 108 MUSICAL COPYRIGHT LAW 
 
 the Orders in Council made under the Foreign Eeprints 
 Act, and in effect reciting that the required conditions 
 have been fulfilled by the Colonial Statute. 
 
 Barbados, 
 
 "An Act to authorise the importation into this island 
 of books, being foreign reprints of books first composed 
 or written, or printed or published, in the United 
 Kingdom, and in which there shall be copyright." 
 No. 936. 
 
 Prohibition against importation suspended by Order 
 in Council of December 16, 1818. 
 
 Date of London Gazette, December 29, 1848. 
 
 Bermuda. 
 
 "An Act to regulate the importation of books, and 
 to protect the British author." No. 699. 
 
 Prohibition against importation suspended by Order in 
 Council of February 13, 1849. 
 
 Date of London Gazette, March 2, 1849. 
 
 Bahamas, 
 
 " An Act for protecting in the Bahamas the rights of 
 British authors." No. 1,208. 
 
 Prohibition against importation suspended by the 
 Crown by Order in Council of May 21, 1849 (see 
 London Gazette, June 5, 1849). 
 
 Date of London Gazette, June 5, 1849. 
 
 Newfoundland. 
 
 "An Act to regulate the importation of books into 
 this Colony and to protect the British author." No. 74. 
 
 Prohibition against importation suspended by Order in 
 Council, dated July 30th, 1849. 
 
 Date of London Gazette, August 7, 1849. 
 
 Saint Christopher. 
 
 " An Act to authorise the importation into this Island 
 of books, being foreign reprints of books first composed or 
 written, or printed or pubHshed, in the United Kmgdom, 
 and in which there shall be a copyright," 
 
 Prohibition against importation suspended by Order in 
 Council, dated November 6, 1849, 
 
 Date of London Gazette, November 20, 1849,
 
 colonial copy- and performing right 109 
 
 Antigua. 
 
 " An Act to authorise the nnportation into this Island 
 of foreign reprints of books entitled to copyright in the 
 United Kingdom." No. GOl. 
 
 Prohibition against importation suspended by Order in 
 Council of June 19, 1850. 
 
 Date of London Gazette, June 25, 1850. 
 
 St. Lucia. 
 
 " An ordinance authorising the importation of books, 
 being foreign reprints of books first composed or written, 
 or printed or published, in the United Kingdom, and in 
 which there shall be copyright." No. 8. 
 
 Prohibition against importation suspended by Order in 
 Council, dated November 18, 1850. 
 
 Date of London Gazette, November 19, 1850. 
 
 British Guiana. 
 
 "An ordinance to authorise the importation into the 
 Colony of British Guiana of books, being foreign reprints 
 of books first composed or written, or printed or published, 
 in the United Kingdom of Great Britain and Ireland, in 
 which there shall be copyright." No. 14, of 1851 
 (June 20, 1851). 
 
 Prohibition against importation suspended by the 
 Crown, by Order in Council, October 23, 1851. 
 
 Date of London Gazette, November 4, 1851. 
 
 St. Vincent. 
 
 " An Act to authorise the importation into the Govern- 
 ment of the Island of St. Vincent and its dependencies, 
 of books, being foreign reprints of books first composed 
 or written, or printed or reprinted, or published, in the 
 United Kingdom of Great Britain and Ireland, and in 
 which there may be any copyright." No. 602. 
 
 Prohibition against importation suspended by Order in 
 Council, dated August 18, 1852. 
 
 Date of London Gazette, August 27, 1852. 
 
 Mauritius and Dependencies. 
 
 " An ordinance for securing in this colony the rights 
 on works entitled to copyright in the United Kingdom." 
 No. 24 of 1851.
 
 110 MUSICAL COPYRIGHT LAW 
 
 Prohibition against importation suspended by Order in 
 Council, April 1, 1853. 
 
 Date of London Gazette, April 15, 1853. 
 
 Grenada. 
 
 "An Act to authorise the importation into Grenada of 
 books, being foreign reprints of books first composed or 
 written, or printed or published, in the United Kingdom 
 of Great Britain and Ireland, and in which there shall be 
 copyright." No. 477. 
 
 Prohibition against importation suspended by Order in 
 Council, dated December 29, 1853. 
 
 Date in London Gazette, January 13, 1854. 
 
 Cape of Good Hope. 
 
 " An Act for authorising the importation into the Colony 
 of the Cape of Good Hope of books, being foreign reprints 
 of books first composed or written, or printed or published, 
 in the United Kingdom, and inwbich there shall be copy- 
 right." No. 4 of 1854. 
 
 Prohibition against importation suspended by Order in 
 Council, dated March 10, 1855. 
 
 Date in London Gazette, March 16, 1855. 
 
 Nevis. 
 
 " An Act to authorise the importation into the Island 
 of Nevis of foreign reprints of British books wherein there 
 shall be copyright." No. 237. 
 
 Prohibition against importation suspended by Order in 
 Council, dated March 10, 1855. 
 
 Date of London Gazette, March 16, 1855. 
 
 Natal. 
 
 " An ordinance authorising importation into the Colony 
 of Natal of books, being foreign reprints of books first 
 composed or written, and printed or published, in the 
 United Kingdom, and in which there shall be copyright." 
 No. 14 of 1856. 
 
 Prohibition against importation suspended by Order in 
 Council, dated May 16, 1857. 
 
 Date of London Gazette, May 22, 1857. 
 
 Jamaica. 
 
 " An Act to secure and protect in this island the rights 
 of British authors, and for carrying into effect the pro-
 
 COLONIAL COPY- AND PERFORMING RIGHT 111 
 
 visions of the Act of the Imperial Parhament, passed in 
 the Session of Parhament holden in the tenth and 
 eleventh years of the reign of Her present Majesty." 
 Chapter 95. No. 3,924. 
 
 Prohibition against importation suspended by Order in 
 Council, dated May 29, 1853. 
 
 Date in London Gazette, January 13, 1853. 
 
 Trinidad. 
 
 " An Act to authorise the importation of certain foreign 
 reprints." No. 14, of October 1, 1874. 
 
 Prohibition against importation suspended by Order in 
 Council, dated March 17, 1875. 
 
 Canada. 
 
 (16) The questions raised during the last fifty years in 
 the matter of copyright between the mother country and 
 Canada have been so much more numerous and intricate 
 than in the case of the other British possessions, that 
 a separate class of paragraphs has been devoted to the 
 subject. Of course the first five paragraphs of this 
 chapter, stating generally the law as to colonial copy- 
 right, apply to Canada and are not repeated here, as 
 the reader may easily refer to them. The principle of 
 Koutledge versus Low regulates the area of protection 
 
 as to all British possessions. The Statute of 1886, 3 English 
 Section 8, cures the want of reciprocity between the ""^^ ir|f^ 
 
 TT -x 1 T-- T 1 /-. T • ii Appeals, 
 
 United Kingdom and Canada, in the same manner as p- loo- 
 
 that Section removed all ground of complaint in the case 
 
 of other British possessions. The foreign reprint question 
 
 has been more acute with Canada than in other cases, 
 
 and the bitterness increased to such an extent that the 
 
 Dominion Government found itself in a manner driven 
 
 to make some concession, and a local Statute was passed 
 
 in 1875, which is abridged in the following paragraph. 
 
 An Act of Canada, " the Copyright Act," was passed 
 
 subsequently which substantially re-enacts that of 1875. ss vict., ch. 
 
 A few differences of detail have been embodied here. ®® 
 
 (17) By the Canadian Statute of 1875 before alluded 
 to, and which comprises in terms musical compositions, 
 a remedy is given in damages against any person w^ho 
 prints or publishes any MS. whatever not before printed Sect. 3. 
 in Canada or elsewhere, ivitliout consent of the author or 
 legal proprietor. 
 
 It would seem that the words in italics, being un-
 
 112 
 
 MUSICAL COPYRIGHT LAW 
 
 restricted in their scope, would include authors of any 
 State and are not to be confined to Canadian authors. 
 Sect. 4. As to any musical compositions and translations printed 
 
 and published, or reprinted and republished in Canada, 
 whether so published for the first time, or contempora- 
 neously with, or subsequently to, " publication or produc- 
 tion " elsewhere, the sole right of printing, reprinting, 
 publishing, reproducing or vending for twenty-eight 
 years from the time of recording the work is conferred 
 in respect of: 
 
 Musical compositions and translations of which the 
 author is domiciled in a British possession, or is a 
 citizen of any country having a copyright treaty with 
 the United Kingdom. 
 Provided that : — 
 
 (i.) The work has been printed and published, 
 or reprinted or republished in Canada, whether it 
 has been so published for the first time, or contem- 
 poraneously with, or subsequently to, publication 
 elsewhere. 
 
 (ii.) Exclusive privilege shall not have expired 
 anywhere else. 
 
 (iii.) That two copies have been deposited in 
 the Department of Agriculture. 
 
 (iv.) That the words, " Entered according to 
 Act of ParHament of Canada in the year — by A. B. 
 — at the Department of Agriculture," be inserted 
 in the several copies of every edition pubHshed 
 during the term secured on the title page or the 
 page following. 
 
 The Minister of Agriculture is to cause the 
 copyright to be recorded. 
 Sect, 5. If at the expiration of the term of twent^'^-eight 
 
 years the author, or any of the authors if more than 
 one, be living, or, being dead, has (sic) left a widow 
 or a child or chiklren living, the copyright may be 
 renewed in favour of the author, or his widow, or his 
 child and children, as the case may be, for fourteen 
 years, as in the Act is mentioned. 
 
 Interim copyright may be obtained from date 
 Sect. 10. of original publication elsewhere, by causing certain 
 
 forms to be observed. 
 
 " Printing, publishing, reprinting or republish- 
 sects. 11 and ing, or importing" any copy or translation during 
 
 See "The 
 Copyright 
 Act" 
 (Canada), 
 38 Vict., ch. 
 88, sect. 31.
 
 COLONIAL COPY- AND PERFORMING RIGHT 113 
 
 the term of interim registration; and, printing or 
 reprinting or importing for sale after the recording, 
 without tlie consent of the proprietor, entail for- 
 feiture of copies and certain penalties. 
 
 Works entitled to protection in the United ^s°'-^^- 
 Kingdom, but not specially copyrighted under the 
 Canadian law shall be entitled to copyright in 
 Canada upon being printed and published there, but 
 nothing in the Act is to prevent importation from 
 the United Kingdom of such works legally printed 
 there. 
 
 Imported copies previously to such a work 
 becoming entitled to protection in Canada may be 
 sold or otherwise disposed of. 
 
 It is not easy to see the intended scope of this 
 Section, unless it is meant to take in works excluded 
 from Section 4 by reason of the author not falling 
 within the description of " any person domiciled in 
 Canada, or in any part of the British possessions, 
 or being a citizen of any country having an inter- 
 national treaty with the United Kingdom"; and if 
 it be so meant, then there would seem to be no 
 limit on the score of the nationality of the author 
 at all. 
 
 Section 15 does not do away with the necessity Sect. 7. 
 for recording copyright ; for without that formality 
 " no person is to be entitled to the benefit of the 
 Act." 
 
 In a clause, which might, mutatis mutandis, have Sect. 23. 
 been well introduced into some British Statutes, 
 the Act provides that any fraudulent assumption 
 of authority to register a work shall be punishable 
 by fine and imprisonment. 
 
 The Statute appears to ignore performing right 
 in a musical composition altogether, resembling in 
 this respect the law of the United States at that 
 time. 
 
 The burdensome provision in this Statute that 
 
 works were to be printed and published in Canada 
 
 prevents the Act being largely utilised. 
 
 (1») "The Canada Copyright Act, 1875" (Imperial), 
 
 was passed in order to empower the Crown to give the 
 
 assent (which was afterwards duly given) to the last 
 
 recited colonial Statute. It was further enacted that 
 
 8
 
 114 MUSICAL COPYEIGHT LAW 
 
 where any British copyright book becomes entitled to 
 copyright in Canada in pursuance of the last recited Act, 
 unauthorised importation into the United Kingdom of 
 any copies of such book reprinted and republished in 
 Canada is prohibited, and the 17th Section of the Copy- 
 right Amendment Act, 1842, is to apply to such books 
 as if they had been reprinted out of the British 
 Dominions. 
 
 (19) A question was raised in Canada by the local 
 publishers whether the Act of 1875 was not inconsistent 
 with the Copyright Amendment Act, 1842. 
 
 The later Act in that case, said they, must be para- 
 mount, and be taken to have repealed the earlier one 
 where the two did not harmonise. It would be useless 
 to follow in detail the hopeless arguments by which they 
 sought to establish this conclusion that a colonial Act 
 could over-rule an Imperial one. 
 
 Suffice it to say that they contended that as the local 
 Act required printing and publication in Canada, works 
 which had not complied with that condition were un- 
 protected in the Colony, although they purported to 
 have copyright there under the Act of 1842. 
 Smiles ferst/i A work Called " Thrift," first published and copyrighted 
 Tupp^App. in Great Britain, was piratically published in Canada 
 ^3^- by a house of publishers named Belford and Co. The 
 
 English proprietor had not availed himself of the Statute 
 of 1875 by reprinting and republishing in the Colony. 
 The British copyright owner sued the Belfords in Canada 
 to protect his copyright under the Act of 1842. 
 
 The Canadian Vice-Chancellor and Canadian Court of 
 Appeal decided in favour of the plaintiff. They held that 
 the author of a book entitled to copyright under the 
 Act of 1842 may sue to restrain a reprint of it in Canada, 
 but in order to restrain importation into Canada of foreign 
 reprints made without his consent, he must print and 
 publish, or reprint and republish, in Canada. 
 
 They also negatived the alleged right of the Dominion 
 to legislate as against the Imperial Statute book, and 
 held that the Dominion could only regulate domestic 
 questions by their home legislation. 
 
 They also held that there was no inconsistency between 
 the Acts of 1842 and 1875, a point, however, unnecessary 
 for disposal of the case, for as the book, the subject of 
 the action, was not reprinted or republished in Canada,
 
 COLONIAL COPY- AND PERFORMING RIGHT 115 
 
 it would have been impossible for the plaintiff to have 
 founded his case on the local Statute of 1875, and it 
 was necessary for him to rely on the Statute of 1842 
 (Imperial). 
 
 (20) The case of the Imperial Book Company versus 
 Adam and Charles Black and another was discussed by 
 the High Court of Justice for Ontario, where it was 
 
 held that the Imperial Statute of 1842 was still in force 5 & e vict., 
 in the Dominion, and an injunction was granted to 17; *^' ^®^'* 
 restrain importing and selling a British copyright book 
 (presumably not republished in Canada). The Court of 
 Appeal for Ontario, and afterwards the Supreme Court 
 of Canada by a judgment of January 31, 1905, affirmed 
 the decision. 
 
 The judgment of the Court, delivered by Mr. Justice 
 Sedgwick, contained a disclaimer of any intention to 
 negative the jurisdiction of the Canadian Parliament 
 "to over-ride legislation" (presumably Imperial legis- 
 lation) " antecedent to the British North American Act, 
 18G7 " ; but it is difficult to see the force of that dis- 
 claimer in the teeth of the fact that the injunction was 
 granted on the footing that the Imperial Act of 1842 
 was still in force, which was the ratio decidendi in Smiles 
 versus Belford. An application for leave to appeal to 
 the Imperial Privy Council was dismissed with costs on 
 May 24, 1905. The case in this stage is discussed again 
 infra, page 118. 
 
 (21) The flow of American reprints of British copy- 
 right works from the United States into Canada largely 
 exceeded the same abuse in other British possessions. As 
 has been recently stated, the Statute of 1847 was passed 
 
 by the Imperial Legislature enabling the Crown by Order ReprTnts^^'^ 
 in Council to suspend the prohibitions against importa- Act. io& u 
 tion into British Colonies of foreign reprints, provided 
 the Colonies respectively chose to accept its benefits 
 by passing a local law which made due provision for 
 protecting the rights of British authors there. 
 
 Canada accepted the benefits offered by the Act, and 
 in the year 1850 passed an Act by virtue of which the 
 local Government imposed an ad valorem duty of 12^ per 
 cent, on foreign reprints of British works for the benefit 
 of the authors. 
 
 By some intermediate legislation, culminating in a 
 Canadian Statute of 18G8, and an English Order in
 
 116 MUSICAL COPYRIGHT LAW 
 
 Council of the same year, the imposition of the duty 
 in question was confirmed, and the prohibition against 
 importation permanently suspended. 
 
 (22) The piratical importation, however, still continued 
 under a legal fiction that the author was recompensed by 
 the duty being properly collected and paid over, but this 
 was not done, and those British authors, who were not 
 willing to incur the trouble and expense of printing and 
 publishing in Canada, remained without legal remunera- 
 tion for the literature, the offspring of their intellect and 
 the mental food of the Canadians. It was, therefore, 
 little more than matter of form when, in April, 1894, the 
 
 Telegraph Canadian Government notified the British Colonial Office 
 newspaper Imperial authorities that the collection of the 122- per 
 18^?" ^^' cent, royalty on foreign reprints of British copyright 
 works for the benefit of the authors would cease. 
 
 (23) In the same year, 1894, the Canadian Parliament, 
 57 & 58 Vict., purporting to exercise the power conferred on it by the 
 loi.^^' ^*®°^' British North American Act, 1867, enacted the Custom's 
 
 tariff, 1894, regulating the importation into Canada of 
 foreign reprints of British copyright works. It contained 
 the following provisions : — 
 
 " (iv.) Subject to the provisions of this Act 
 and to the requirements of the Customs Act 
 (Chapter 32 of the revised Statutes, as amended), 
 there shall be levied, collected, and paid upon all 
 goods enumerated, or referred to as not enumerated, 
 in Schedule A to this Act, the several rates of duties 
 of Customs set forth and described in the said Sche- 
 dule, and set opposite to each item respectively, or 
 charged thereon, as not enumerated, when such 
 goods are imported into Canada or taken out of ware- 
 house for consumption therein." Schedule A contained 
 the following clause : " Goods subject to duties, books 
 and paper. 101. British copyright works, reprints, 
 of 6 cents, per lb. ; and, in addition thereto, 12^ per 
 cent, ad valorem, until the end of the next Session of 
 Parliament, and thereafter 6 cents, per lb." Sec- 
 tion 6 provided that " the importation into Canada 
 of any goods enumerated, described, or referred to 
 in Schedule C to this Act is prohibited, and any such 
 goods, if imported, shall thereby become forfeited to 
 the Crown and shall be destroyed, and any person 
 importing any such prohibited goods, or causing or
 
 COLONIAL COPY- AND PERFORMING RIGHT 117 
 
 permitting them to be imported, shall for each offence 
 incur a penalty of 200 dols." Schedule C con- 
 tained the following clause : " Prohibited goods. 
 Seven hundred and eighty reprints of Canadian copy- 
 right works and reprints of British copyright works, 
 which have been also copyrighted in Canada." The 
 above Sections were re-enacted in 1897 (60 and 
 61 Vict., c. 16) in substantially the same form, 
 except that item 101, in Schedule A, of the Act of 
 1894, was replaced in the Act of 1897 by item 125 
 reading as follows : " 125. Books printed, periodicals 
 and pamphlets, or parts thereof, not elsewhere speci- 
 fied, not to include blank account books, copybooks, 
 or books to be written or drawn up, 10 per cent. 
 ad valorem." 
 This Statute was merely passed for fiscal purposes in 
 Canada, and had no reference to the claims or remune- 
 ration of British authors. 
 
 (24) Until the above-mentioned notice of cesser it was 
 assumed in the Dominion that Section 152 of the Customs 
 Consolidation Act, 1876 (which, in terms, prohibited 
 importation into British possessions of foreign reprints 
 of British copyright works only on the condition that 
 notice was given to the Commissioners of Customs), 
 applied to Canada. In the case just cited on the question 
 of right (the Imperial Book Company versus Adam Black, 
 &c.) the question seems to have been raised for the first 
 time whether Canada, having made regulation for the 
 management of her Customs by the tariff of 1894, was 
 not, by Section 151 of the Customs Consolidation Act, 
 1876 (Imperial), exempted from the operation of Sec- 
 tion 152 of the same Act. 
 
 Section 151 of the Customs Consolidation Act, 
 1876, is as follows: " The Customs Act shall extend 
 to and be of full force and effect in the several 
 British possessions abroad, except where otherwise 
 expressly provided for by the said Acts, or limited 
 by express reference to the United Kingdom, or the 
 Channel Islands, and except also as to any such 
 possession as shall, by local Act or Ordinance have 
 provided, or may hereafter, with the sanction and 
 approbation of Her Majesty and her successors, make 
 entire provision for the management and regulation 
 of the Customs of any such possession, or make, in
 
 118 MUSICAL COPYBIGHT LAW 
 
 like manner, express provisions in lien or variation 
 of any of the clauses of the said Act for the purposes 
 of such possession." 
 In the case in question the Imperial Book Company 
 sued the defendants, Adam and Charles Black, and Clarke 
 Company, Limited, being an assignee or licensee from 
 Adam and Charles Black, to restrain importation into the 
 colony of foreign reprints (presumably not republished or 
 reprinted in Canada) of a British encyclopaedia. It was 
 held by the Court of first instance in Ontario, on 
 January 26, 1903, that the production of a certified copy 
 of the entry in the Book of Registry at Stationers' Hall was 
 all that was necessary to make out a prima facie pro- 
 prietorship ; that the agreement under which the Clarke 
 Company (Limited) claimed was a licence and not an 
 assignment and was not required to be registered ; that 
 39&40Vict., Section 152 of the Customs Consolidation Act, 1876, had, 
 ch. 36. ^^ virtue of Section 151 of the same Act, never been in 
 
 force in Canada, and that Section 17 of the Imperial 
 Copyright Act of 1842 was alone apphcable. 
 
 The significauce of the last point arose from the neces- 
 sity of giving notice, under Section 152, to the Commis- 
 sioners of Customs of the existence of copyright in the 
 work sought to be protected, and from the further obliga- 
 tion of stating when such notice will expire. It w^as 
 alleged in the case that the notice had been incorrectly 
 given, and it was argued by the defendants that this 
 omission destroyed the colonial copyright, or, at all 
 events, destroyed the right of the plaintiffs to restrain 
 importation. 
 
 The defendants also argued that Section 17 of the 
 the Copyright Amendment Act, 1842, must be read as 
 modified by Section 152 of the Customs Consolidation 
 Act ; or if that was not so, and if Section 152 was not in 
 force in Canada, that Section 17 of the Imperial Copyright 
 Act of 1842 was vahdly repealed by the Canadian Legis- 
 hiture by their Act of 1894. 
 
 The question whether Section 151 removed Canada 
 from the scope of SectioE 152 turned on the fact, had 
 she, or had she not, m^ae "entire provision for the 
 management and regulation for her customs." The 
 plaintiffs said tliat she had; the defendants could but 
 faintly deny it, and, indeed, practically admitted that she 
 had done so by her tariff of 1894, hereinbefore stated. The
 
 COLONIAL COPY- AND PERFORMING RIGHT 119 
 
 Court of Appeal in Canada granted an injunction against 
 importation. They considered that Section 17 appHed 
 simplicitcr, that the plaintiff was not hampered in the 
 case of Canada by any ne(;essity to observe the formali- 
 ties required by the Customs Act, 1876, Section 152. 
 
 An application to the Imperial Privy Council for leave 
 to appeal was refused with costs. 
 
 It does not seem to have been doubted by any of those 
 engaged in the case, that the necessity to give the notice 
 required by Section 152 being out of the way, the refusal 
 of Canada to levy further duties in favour of British 
 authors put an end to the suspense of prohibition against 
 importation and restored the law as it stood under the 
 Imperial Act of 1812, previously to the Foreign Keprints 
 Act. At all events, the contrary was not suggested m the 
 report, and this result may be taken for granted. British 
 authors, therefore, are now entitled to restrain importa- 
 tion into the Dominion of foreign reprints of their books, 
 whether reprinted or republished in Canada or not ; and, 
 as the case is ruled by the Act of 1842, the expression 
 " books " includes music.
 
 120 
 
 CHAPTER VIII. 
 
 1) How British, and other non-American authors can obtain copy- 
 right in the United States. (2) Residential proclamation in that 
 connection. (3) Terms of the Section conferring upon authors 
 American copyright. (4) Cases arising in connection with it. (5) 
 Performing right, how acquired. Cases in connection therewith. 
 (6) Term of copyright. (7) Prolongation of term. (8) Copy- 
 right, assignable. (9) Formalities to be observed as a necessary 
 condition to the existence of copyright. Cases arising in con- 
 nection with them. (10) Necessary fees. (11) Reservation of 
 right on each copy, penalty for wrongful insertion of such 
 a reservation. (12) Penalties for infringement. (13) Punish- 
 ment for piracy. (14) Simultaneous publication. (15) How 
 performing right arises in the United States, with reference to 
 the different state of law in Great Britain. 
 
 COPYRIGHT IN THE UNITED STATES. 
 
 (1) Before considering in detail the conditions under 
 which British composers are able to obtain copyright for 
 their compositions in the United States of America, it 
 would seem advisable to correct a misapprehension which 
 appears to be pretty generally entertained as to the 
 precise nature of the concessions made by the American 
 Government, when it decided in 1891 to admit foreigners 
 to the benefits of its new legislation on the subject. 
 Prior to July 1, 1891, American copyright was by the 
 law of that country reserved exclusively in favour of 
 American subjects and domiciled citizens. With a view, 
 however, to foster the native publishing and printing 
 industries, the American Government, on March 3, 1891, 
 passed a Statute which extended the protection of its 
 copyright laws to foreigners, under certain conditions, 
 which will be hereafter referred to in detail ; and on 
 July 1, 1891, as regards some countries, and on sub- 
 sequent dates as regards others, many foreign States 
 became entitled to enjoy the benefits of the copyright 
 laws which America afforded to her own citizens. It is 
 true that this extension of its copyright protection was
 
 COPYRIGHT IN THE UNITED STATES 121 
 
 based upon a reciprocity of treatment on the part of 
 each nation towards American citizens within their 
 respective territories. But there was in no case (except 
 that of Gnrmany) any preparatory bargaining as to terms 
 and conditions. And there was in no case (except 
 that of Germany) a treaty or convention containing 
 mutual concessions on the subject. Tlie copyright 
 therefore that certain foreigners now enjoy in America 
 is a purely American copyright, and is in no sense an 
 international one. In fact, there is little to distinguish 
 the copyright which British composers now enjoy in 
 America from the copyright which American subjects 
 do and always could enjoy ni Great Britain. As, for many 
 years, Americans could obtain copyriglit for their works in 
 Great Britain by conforming to the British law, so now 
 (since July 1, 1891) British and many other composers 
 can obtain American copyright by conforming to the 
 American law. 
 
 The consideration of this feature of the altered law of 
 America on the subject becomes of greater importance 
 than is at first sight obvious, because of frequent corre- 
 spondence in the British Press on the subject ; complaint 
 is made of the ^infairness of the American conditions 
 as contrasted with the British. The British Government 
 is accused of having made a bad bargain with America, 
 and retaliation is suggested, with the result that the 
 public, and especially the student who has not f(jllowed 
 the history of the development of the American law on 
 the subject very closely, are misled. The British Govern- 
 ment has really made no bargain of any sort ; retaliation, 
 now that America has become much more liberal than 
 she ever was before, seems somewhat ill-timed. The 
 American position merely amounts to this : that whereas 
 prior to July 1, 1891, she would not grant any copyright 
 at all to any foreigner, she has since that date so altered 
 her own laws on the subject, that many foreign States 
 have obtained, and all foreign States can, if they will, 
 obtain, a very large measure of protection for their authors 
 in American territory ; and that very large measure is 
 precisely as much as American citizens themselves can 
 obtain. 
 
 (2) Since July 1, 1891, authors not being American of the Act of 
 citizens are admitted to copyright, on the same basis as statelfof^'^ 
 to American citizens, in two cases. Firstly, when the ?i^^°^ ^'
 
 122 MUSICAL COPYRIGHT LAW 
 
 nation of the non-American author permits copyright 
 to American citizens on substantially the same terms as 
 to its own citizens ; secondly, when the nation of the 
 foreigner is a party to an international agreement pro- 
 viding for reciprocity in copyright, by the terms of which 
 the United States can become a party thereto at its 
 pleasure. The existence of either of these conditions 
 is to be determined by the President of the United States 
 by proclamation. 
 
 (3) On July 1, 1891, the President of the United States 
 issued a proclamation declaring that the first of the con- 
 ditions above-mentioned was fulfilled in respect of the 
 citizens or subjects of Great Britain and her possessions. 
 
 The following States have also been the subject of a 
 similar proclamation : — 
 
 July 1, 1891. — Belgium, France, Switzerland. 
 
 /Ipril 15, 1892. — Germany. 
 
 October 31, 1892.— Italy. 
 
 May 8, 1893.— Denmark. 
 
 July 20, 1893.— Portugal. 
 
 July 10, 1895.— Spain. 
 
 February 27, 1896.— Mexico. 
 
 May 25, 1896.— Chih. 
 
 October 19, 1899.— Costa Kica. 
 
 November 20, 1899. — The Netherlands and her posses- 
 sions. 
 
 November 17, 1903.— Cuba. 
 3;'i*89?'^sec?. (^) The enactment which gives copyright is to the 
 4952™^^^ following effect as regards music : That the author or 
 proprietor of any book or musical composition, and his 
 executors, administrators or assigns, should, upon com- 
 plying with the provisions of the now reciting chapter, 
 have the sole liberty of printing, reprinting, publishing, 
 completing, copying, executing, finishing and vending 
 the same. 
 Ushfng^com- The enactment granting copyright has not abrogated 
 MonroT"73 ^^^ common law right of an author to his unpublished 
 
 i<'ederal' MS. 
 
 epor 8, . ^^ author whose work has been published, but not 
 FeSnofioe"' Copyrighted, has no right to control the r jde in 
 FederaiBe- vvhicli any member of the public may reproduce it, 
 
 ports, 692. J i..i.l i. ■ rill • • / 
 
 as regards title, arrangement, or groupmg. This is not 
 inconsistent with the English decisions which (inde- 
 pendently of copyright) forbid any actual mutilation
 
 COPYRIGHT IN THE UNITED STATES 123 
 
 of a melody ; or any reproduction of it, in a form 
 which would tend to bring the composer's reputation 
 into contempt. 
 
 (5) Performing right in music was not protected by the sect. 4966 
 above-stated Section, but by an Act of January 6, 1897. sL^uter'^ 
 Any person publicly performing any nmsical composition, amended. 
 "'for whicli a copuriglit lias been obtained,'' without the 
 consent of the proprietor, shall be liable to damages, to 
 be assessed at such sum not less than 100 dols. for 
 the first, and 50 dols. for every subsequent performance, 
 as to the Court shall seem just. IE the performance be 
 wilful and for profit, such person shall be guilty of a 
 misdemeanour, and upon conviction be imprisoned for a 
 term not exceeding one year. 
 
 Under a New York Statute "any person who causes 
 to be publicly performed for profit any unpublished, 
 undedicated or copyrighted (dramatic composition or) p^^^^j ^^^^^ 
 musical composition known as an opera, without the section 729| 
 consent of its owner, or who, knowing that such (dramatic i899.'^c'. 475. 
 or) musical composition is unpublislied, undedicated, oi' ^g^^V uales • 
 copyrighted, and without the consent of its owner, per- Arthur s. 
 mits, aids, or takes part in such a performance, shall be 101°^ ^^' ^' 
 guilty of a misdemeanour." 
 
 It has been held by the Circuit Court that the following Bloom wrs^s 
 facts did not bring the defendant within the terms of the Federal Re- 
 first of these two enactments. ^°^ ^' 
 
 Miss Fay Templeton, playing in "The Runaways," 
 gave an imitation of Miss Faust singing a song called The author 
 "Sammy," the copyright of which was the property sisted by the 
 of the plaintiff. The' personality of Miss Faust, her ^^S on of 
 gestures and tones, were the main subject of the per- p"f|^ ^°°^" 
 formance ; and though a few lines of the test were Arthur s. 
 reproduced, and the chorus itself was repeated, the fact published by 
 that Miss Templeton did not sing it (this was presumably *^n p™b-"" 
 meant, as negativing her having sung it in the artistic lishers; 
 sense), but merely imitated the singing it by another, League, 
 induced the Court to find that the imitation was what 
 caused the interest of the performance, and the injunction 
 was refused. 
 
 In the case of Wagner versus Couried in the Circuit Keports^798 
 Court, southern district of New York, November, 1903, 
 the exclusive right of publication, and absolute possession 
 of the libretto, of Parsifal had been assigned by liichard 
 Wagner to B. Sehott and Sons (presumably for all
 
 124 
 
 MUSICAL COPYRIGHT LAW 
 
 Kevised 
 Statutes. 
 Sect. 4966. 
 
 Hevised 
 Statutes, 
 Sect. 4953. 
 
 Sect. 4954. 
 
 lands). The contract reserved the acting rights in regard 
 to theatres to Eichard Wagner, whose representatives 
 brought an action to restrain the defendant from pro- 
 ducing the work upon the stage in America. A notice 
 was printed in the pubHshed work purporting to effect 
 such reservation of acting rights. It was agreed that such 
 a notice would have been sufficient under the law of 
 Germany (where the contract was made) to protect the 
 author's performing right. An edition printed in 1902 
 had not been copyrighted in America, but copies had 
 been sold there. The reservation of right was treated 
 by the Court as a nullity. The effect of publication was 
 to dedicate the work to the public, and it was held that 
 such a notice was ineffective to protect performing right. 
 It is not easy to understand this case. If the work, as 
 is probable, had been copyrighted in America previously 
 to the edition of 1902 (which is not stated in the report), 
 that edition would not have destroyed the exclusive per- 
 forming right which the acquisition of copyright carried 
 with it. If the work had never been copyrighted in 
 America the case would not seem arguable at all events 
 as against a stranger to the contract ; it seems doubtful 
 whether the plaintiff could have succeeded even if the 
 question had arisen whether the reservation of right 
 could be enforced as between the parties to the contract 
 themselves; that is to say, supposing that B. Schott 
 and Sons, or persons claiming under them, had acted 
 in derogation of the reservation of acting right and 
 performed Parsifal in a theatre, it is difficult to see how 
 the American Court could have interfered to enforce 
 specific performance of the contract. 
 
 (6) Copyrights are granted in America for twenty-eight 
 years from the time of recording title. 
 
 The mode of recording is stated a few linos lower 
 down. 
 
 (7) The author "if he be still living, or his widow or 
 children if he be dead, shall have the same exclusive right 
 continued for the further term of fourteen years upon 
 recording the title of the work a second time, and com- 
 plying with all other regulations in regard to original 
 copyrights, within six months before the expiration of 
 the first term ; and such persons shall within two months 
 from the date of such renewal cause a copy of the record 
 thereof to bo published in one or more newspapers printed 
 in the United States for four weeks."
 
 COPYRIGHT IN THE UNITED STATES 125 
 
 (8) Copyrio[hts are assignable in law by any instrument Sect. 4955. 
 of writing (sic), and such assignment shall be recorded in 
 
 the office of the Librarian of the Congress within sixty 
 days after its execution ; in default of which it shall be 
 void against any subsequent purchaser or mortgagee for 
 a valuable consideration, without notice. 
 
 (9) No person shall be entitled to a copyright unless ^c°*of i89i 
 he shall, on or before the day of publication in the United 
 
 States or any other country, deliver at the office of the 
 Librarian of Congress, or deposit in the mail within the 
 United States, addressed to the Librarian of Congress at 
 Washington, District of Columbia, a printed copy of the 
 title of the "book or musical composition"; nor unless 
 he shall also, not later tJian the day of publication thereof 
 in the United States or any other country, deliver at 
 the ofhce of the Librarian of Congress aforesaid, or 
 deposit in the mail within the United States, addressed 
 as aforesaid, two copies of such copyright book or musical 
 composition. 
 
 It has been held in the United States that, in the Boucicauit 
 
 , f • 1 1 T • • 1 vtrsui. Hart : 
 
 absence of du'ect enactment, the publication must take i3 Biatch- 
 place within a reasonable time after recording the title ; Drone, 
 and the interval between October 24 and the following p- ^'*** 
 February was held to be an unreasonable time, and the 
 copyright was lost. 
 
 A case of some importance on the subject of publi- French i'«rsi« 
 cation was decided upon Farine's well-known operetta pedV^a?' ^^ 
 named "Falka." After publication of the musical score, Beport8,62i. 
 but before publication of the libretto, the defendants per- 
 formed the opera in California. In a suit for an account 
 of profits, defendant attempted to show that the work 
 had been published from the fact that the book had 
 been printed for the use of actors in learning their parts ; 
 it had never been put in circulation. 
 
 The judge held that this was not publication, and that 
 there had not been any dedication of the book by the 
 plaintiff to the use of the public, and the plaintiff's right 
 to an account was established. 
 
 It is not quite clear how the previous dedication to the 
 public by the plaintiff would have been a good defence ; 
 presumably the Court considered that that step would 
 h&Ye destroyed the common law right of protection ; ^^^^^^^^^^^^ 
 on the other hand, there would be no exclusive right of 4956. 
 performance under Statute law, as copyright had not
 
 126 MUSICAL COPYRIGHT LAW 
 
 been obtained by compliance with the enactments re- 
 quiring the deposit of copies and record of title. It is 
 shown infra that under American law exclusive perform- 
 ing right does not arise unless copyright has been 
 obtained. 
 Sect. 3 of the It is afterwards provided that in the case of a book the 
 Sect. 4956 of two copics required to be delivered or deposited shall be 
 statutlsf^*^ printed from type set within the limits of the United 
 States, or from plates made therefrom. During the exis- 
 tence of such copyright the importation into the United 
 States of any hook ... so copyrighted, or any edition 
 thereof, or of any plates of the same not made from type 
 set within the United States, shall be prohibited, except 
 in the cases mentioned below, viz. : — 
 Act of Con- Books printed and bound, or manufactured more than 
 i89cf,'sect. i, twenty years at the date of importation, 
 paras. 512- Books and pamphlets printed exclusively in languages 
 other than English ; also books ... in raised print 
 used exclusively by the blind. 
 
 Books imported " by authority" {sic), or for the use of 
 the United States {sic), or for the use of the library of 
 Congress. 
 
 Books . . . specially imported, not more than two 
 copies in one invoice, in good faith for the use of any 
 society established for educational, philosophical, literary, 
 or rehgious purposes, or the encouragement of the fine 
 arts, or for the use or by the order of any college, academy, 
 school, or seminary of learning in the United States, 
 subject to regulations prescribed by the Secretary of 
 State. 
 
 Books ... of persons of families from foreign 
 countries, if actually used abroad by them not less than 
 one year, and not intended for any other person or 
 persons, nor for sale. Except also the case of persons 
 purchasing for use and not for sale, who import, subject 
 to duty, not more than two copies of a book at any one 
 time. 
 
 The prohibition of importation is not to extend to 
 books in foreign languages, of which the translations 
 only are copyrighted, and is only to extend to such 
 translations. 
 
 A question arose upon this whether " book " included 
 "musical composition," in the absence of an interpreta- 
 tion clause similar to that contained in the Copyright
 
 COPYRIGHT IN THE UNITED STATES 127 
 
 Amendment Act, 1842 (Great Britain). This doubt has Littleton 
 been authoritatively set at rest by the American tribunals, Dit'son com- 
 who have decided, in accordance with the practice from S^ede'rai^ 
 the first in the liljrarian's office, that musical coraposi- Keports,597. 
 tions as such, and not bein^^ books in outward form, were 
 not included in the enactment as to printing from local 
 type, or from plates made therefrom. This decision has 
 been affirmed on appeal. 
 
 The proviso at the conclusion of Section 4956, as to 
 printing from type set up in America, or from plates 
 made therefrom, does not apply to music, but the writer 
 has nevertheless set out the proviso because it is of 
 importance where questions arise as to the words of 
 l3'rical works. The difficulty now about to be stated 
 with its solution, shows the nature of some of such 
 questions. 
 
 A large London musical firm wished to import into the 
 States a cantata, of which the words had been pre- 
 viously copyrighted in America, and in which the copy- 
 right was still subsisting. The copies desired to be 
 imported (and put on sale) contained vocal score, i.e., 
 words and music printed together. The music was copy- 
 righted in America. The proviso requires that in the case 
 of a book (as opposed to a musical composition) not only 
 must the two copies required to be deposited be printed 
 from type set in the United States, but ajuj copyright 
 book, or any plates of the same not made from type set 
 in the United States, are prohibited to be imported, with 
 the exceptions hereinbefore mentioned, which do not 
 apply to the case with which we are dealing. The music 
 being inseparable from the words in this case, in other 
 words, forming part of the same book, was practically, 
 though not legally, subject to the same disability, and the 
 whole would be subject to be seized at the Custom 
 House. 
 
 Under well-known American advice the would-be 
 importers determined to abandon the copyright of the 
 words, as there is no prohibition against importation of 
 a non-copyright book. This was purported to be done by 
 printing and publishing a few copies of the libretto alone, 
 without the insertion on the title page of the words 
 required by Section 49G2 of the revised Statutes, 
 "entered according to Act of Congress in 'the year* — , 
 &c., &c."
 
 128 
 
 MUSICAL COPYRIGHT LAW 
 
 Sect. 4962. 
 
 Henderson 
 versus Tom- 
 kins, 60 
 Federal Re- 
 ports, 758. 
 
 SeeBevised 
 
 Statutes, 
 
 4958. 
 
 Revised 
 
 Statutes, 
 
 4962. 
 
 It appears to have been considered that this removed 
 the copyright shackle, and the book consisting of words 
 and music has been imported without let or hindrance. 
 
 Nothing succeeds hke success, but the writer cannot 
 help suggesting that the soundness of the advice so given 
 was open to doubt. 
 
 The Section relied upon, as annihilating the copyright 
 in the words, only enacts that " no person shall maintain 
 an action for the infringement of his copyright unless 
 he shall give notice thereof by inserting in the several 
 copies of every edition " the words " entered according," 
 &c. This enactment would not seem to resemble in its 
 effect the other Sections which make the compliance 
 with certain requirements a necessary condition to the 
 existence of Copyright Section 496'2, but only imposes a 
 condition on the person wishing to sue and does not 
 affect the other incidents of copyright. 
 
 It would seem safer on a future occasion to adopt some 
 other mode of purging a book from its copyright, as by 
 public advertisement m the newspapers, or execution of 
 a deed poll. That course at all events is effective in 
 the United Kingdom. 
 
 It has been decided that in suing for infringement of 
 copyright the plaintiff must distinguish between the 
 words and the music, and state in his pleadings whether 
 he claims the right in respect of the one, or the other, 
 or both. 
 
 (10) The Act of 1891 deals with the fees payable to 
 the Librarian of Congress ; in respect of recording the 
 title of any article 50 cents, are payable. 
 
 For a copy of such record under seal, 50 cents. 
 
 For recording and certifying any instrument of writing 
 for the assignment of a copyright, one dollar. 
 
 The charge for recording the title of any production 
 of a person not a citizen or resident of the United States 
 is one dollar. 
 
 (11) No person is to maintain an action for the 
 infringement of his "copyright" unless he shall give 
 notice thereof by inserting in the several copies of every 
 edition published of a musical composition, by inscribing 
 on some visible portion thereof the words: "Entered 
 according to Act of Congress in the year — , by 
 A. B., in the ofiice of the Librarian of Congress, at 
 Washington," or at his option, the word " copyright,"
 
 COPYRIGHT IN THE UNITED STATES 129 
 
 together with the year the copyright was entered, and 
 the name of the party hy whom it was taken, thus 
 " copyright 18 — (sic) by A. B." The latter form is most 
 commonly used. 
 
 Music publishers sometimes put the notice on the 
 title-page. This, however, would hardly seem to be 
 the right course, as it would be more appropriately 
 inscribed on one of the music plates.* 
 
 It has been held in the Circuit Court, southern district Scribner 
 of New York, that the direction above stated, to enter aTiien^^ 
 " the name of the jjcwti/ " by whom the copyright is taken 49'peder4i 
 out, is satisfied by giving the name of his business firm. Heport8,854. 
 The copyright was taken out in the name of " Charles 
 Scribner's Sons." This was held sufticient, though 
 that name was a fictitious one, Charles Scribner being 
 the sole person interested. 
 
 It has also been held that it was sufficient to enter Boiies versw 
 a notice which was as follows : " Copyright 93, by Bolles ?a''ny"^7°°'" 
 of Brooklyn." It was not shown by defendant that there ^I'^o^ts 966 
 was more than one person named " Bolles," and the 
 omission of the first name was considered immaterial. 
 
 The actual words of this Section (4962) do not extend Sect. 4966 
 to performing right, but as the Section which annexed jan. I, "1897. 
 penalty to performing right infringed is limited to 
 musical compositions, for which "a copyright has been 
 obtained," it would seem probable that it would be held 
 that such penalty cannot be enforced without the notice 
 being inscribed on some visible portion of the musical 
 composition, as hereinbefore stated. Every person who 
 shall insert or impress such notice, or words of the sect. 6 of the 
 
 , • ^ ' • 1 .,• Act of 1891 
 
 same purport, m or upon any musical composition, amended by 
 whether subject to copyright or otherwise, for which ^arch*, 1897, 
 he has not obtained a copyright, is liable to a penalty |963 of 
 of 100 dollars, recoverable, one-half for the person who statutes, 
 shall sue for such penalty, and one-half to the use of the 
 United States. 
 
 (12) An enactment in the revised Statutes as amended, sect. 4965 
 provides that if any person after the recording of the the^Actof ^ 
 title " of any musical composition, shall, contrary to the 1^95:^ ^' 
 provisions of this act, within the term limited, and with- 
 
 * This suggestion was made to the writer by Mr. Henry Clayton, a 
 Member of the EngUsh Bar, and of the firm of Novello and Co., to 
 whom the writer is under deep obhgations for valuable assistance. 
 
 9
 
 130 
 
 MUSICAL COPYRIGHT LAW 
 
 Bolles versus 
 Outing Com 
 pany, 77 
 Federal Re- 
 ports, 966. 
 
 17 Appeals 
 District of 
 Columbia, 
 562. 
 
 Sect. 9 of the 
 Act of 1891, 
 amending 
 Act 4967 of 
 the Revised 
 Statutes. 
 
 Wall vertui 
 Gordon ; 
 Drone, 296. 
 
 out consent of the proprietor, in writing, signed in the 
 presence of two or more witnesses, copy, print, publish or 
 import, either in the whole or in part, or knowing the 
 same to be so printed, published, or imported, shall sell 
 or expose to sale any copy thereof, he shall forfeit to 
 such proprietor all the plates on which the same shall be 
 copied, and every sheet thereof, either copied or printed 
 and shall farther forfeit one dollar for every sheet of the 
 same found in his possession, either printed, copied, pub- 
 lished, imported, sold or exposed for sale," one-half thereof 
 to the proprietor, and the other half to the use of the 
 United States. 
 
 It has been held on Section 4965 of the revised Statutes 
 that the penal clause of the forfeiture of one dollar per 
 sheet "found in the possession " of the defendant, must 
 be strictly construed, and is hmited to such copies as are 
 literally " found in his possession," and does not extend 
 to copies put into circulation, but which may be traced 
 as having been in his possession. 
 
 In the case of Stern versus Kosey, heard in the Court 
 of Appeals District of Columbia, in February, 1901, the 
 defendant had taken tw^o songs (copyright) : " Take back 
 your Gold," and " Whisper your Mother's Name," and 
 had procured them to be sung into a phonograph, thereby 
 obtaining a "master-record," from which other records 
 were made. Plaintiff contended that this was " copying " 
 his song under the section last stated. 
 
 It was held that the records did not effect a copy, 
 as the marks upon the wax cyhnders conveyed no mean- 
 ing to the eye, even of an expert musician, and were only 
 part of a machine. There was no substantial difference 
 between them and the metal cylinder of the ancient 
 musical box. 
 
 The grounds of this decision are very similar to those 
 upon which Lord Justice (then Mr. Justice) Stirling 
 decided the English case of Boosey versus Whight. 
 
 (13) Every person w^ho shall print or publish any MS. 
 whatever, without the consent of the author or proprietor 
 first obtained, shall be liable to the author or proprietor 
 for all damages occasioned by such injury. 
 
 (14) As in Great Britain, so in the United States, first 
 publication must not be abroad ; if it is, the author cannot 
 acquire copyright. Also, as in Great Britain, simulta- 
 neous publication is considered sufficient to estabhsh the
 
 COPYRIGHT IN THE UNITED STATES 131 
 
 author's right. See this subject treated of in the former 
 chapter on " Rights after Pubhcation." In order, there- 
 fore to obtain copyright in the two countries it is usual 
 for British pubhshors to dehver copies of title, and of the 
 work previously to publication, but within a reasonable 
 time before that step, and to arrange by telegrams or 
 otherwise that publication shall take place simulta- 
 neously in Great Britain and the States. 
 
 (15) An important divergence between British and 
 American copyright law occurs in the case of performing 
 right. In Great Britain a prior performance by order 
 of the proprietor of a musical work abroad destroys 
 exclusive performing right in Great Britain, as has been 
 already seen. It would seem clear that prior performance Bevised 
 abroad would not have that effect in the United States, amended by 
 The section which relates to this right, and which alone t)ie Act of 
 confers it, imposes a penalty on unauthorised pubHc per- 4966. ' 
 formance of any musical composition " for which a copy- 
 right has been obtained." There is nothing restricting 
 the operation of the section to works not previously 
 performed abroad.
 
 APPENDIX A. 
 
 THE RETROSPECTIVE EFFECT OF THE INTER- 
 NATIONAL COPYRIGHT ACT, 1886. 
 
 It has been stated in the body of this work that the most 
 diOicult points have arisen in connection with Section 6 of 
 the Statute of 1886. These points are more important in 
 connection with musical copy- or performing-right tlian with 
 any other subject-matter. This arises partly from the fact 
 that many musical works of foreign origin (especially lyrico- 
 dramatic ones) have fallen into the public domain, the title 
 to protection under conventions between Great Britain and 
 other States having lapsed through non-compliance with the 
 necessity for registration arising on those documents. 
 
 It has been asserted by some that it was the intention of 
 the Legislature to " stretch backwards " (to use the homelj^ 
 but vigorous phrase of a late eminent judge) the scope of the 
 Convention of Berne so as to benefit authors who had lost 
 their right by negligence ; and to wake up again copyrights 
 forty years old, it may be, a strange exemplification of the 
 French proverb, " Lc Men vient en dormant." 
 
 There are several difi"erent periods to which, it may be 
 argued, the statutory scope ought to be carried back, as will 
 be hereafter seen. In the case of conventions with States 
 which do not wish to join that of Berne, there must be some 
 limit in point of antiquity to the claim of works to be swept 
 in ; and what that limit is to be under every combination of 
 circumstances is not finally decided. Indeed, this doubt is 
 not entirely set at rest even with reference to the Berne 
 Convention itself, though there has been already considerable 
 litigation. 
 
 Section G of the Statute is as follows : — 
 
 "Where an order is made under the International Copy- 
 right Acts with respect to any foreign country, the author and 
 publisher of any literary or artistic work first produced before 
 the date at lohicli such order comes into operation shall be
 
 11. MUSICAL COPYRIGHT LAW 
 
 entitled to the same rights and remedies as if the said Acts, 
 and this Act, and the said order, had applied to the said 
 foreign country at the date of such production, provided that 
 where any person has before the date of the publication of an 
 Order in Council lawfully produced any work in the United 
 Kingdom, nothing in this Section shall diminish or prejudice 
 any rights or interests arising from or in connection with 
 such production which are subsisting and valuable at the 
 said date." 
 
 By Section 10 — (1) Power is given " to make Orders in 
 Council for the purpose of the International Acts, and this Act 
 for revoking or altering any Order in Council previously made 
 in pursuance of the said Acts or any of them. 
 
 (2) " Any such Order in Council shall not affect prejudicially 
 any rights acquired or accrued at the date of such order coming 
 into 02}eration, and shall provide for the protection of such 
 riglits." 
 
 Section 12. — (a) " Where an Order in Council has been 
 made before the passing of this Act, under the said Acts, as 
 respects any foreign country, the enactments by the now 
 reciting Act repealed shall continue in full force as respects 
 that country until the said order is revoked. 
 
 {b) " The said repeal and revocation shall not prejudice any 
 rights acquired previously to such repeal or revocation, and 
 such rights shall continue and may be enforced in like manner 
 as if the said repeal or revocation had not been enacted or 
 made." 
 
 The Order in Council of December G, 1887, has the following 
 provision : — 
 
 Section 3. — " The author of any " . . . " artistic work " 
 (which includes musical composition) " first produced before 
 the commencement of this order shall have the rights and 
 remedies to which he is entitled under Section 6 of the 
 International Copyright Act, 1886." 
 
 Section 7 provides (in effect) that the orders under which 
 the conventions previously existing with foreign States took 
 their force be revoked ; and the order continued as follows : 
 " Provided that neither such revocation nor anything else in 
 this order shall prejudicially affect any right acquired or 
 accrued l)efore the commencement of this order by virtue of 
 any order hereby revoked ; and any person entitled to such 
 right shall continue entitled thereto, and to the remedies for 
 the same, in like manner as if this order had not been made." 
 
 The now reciting order is to be construed as if it formed 
 part of the International Copyright Act, 1886. 
 
 The Borne Convention, Article 14 : — 
 
 " Under the reserves and conditions to be determined by 
 common agreement the present Convention applies to all
 
 APPENDIX iii. 
 
 works which at the moment of its coming into force 
 have not yet fallen into the public domain in the country of 
 origin." 
 
 And the protocol de cloture, Article 4 : — 
 " The common agreement alluded to in Article 14 of the 
 Convention as modified by the Additional Act of Paris, 1896, 
 Article 2, Placitum 2, is as follows : — 
 
 " The application of the Convention to works which have 
 not fallen into the public domain in the country of origin at 
 the time when the convention and Act came into force shall 
 operate according to the stipulations on this head which may 
 be contained in special conventions either actually existing, 
 or to be concluded hereafter. 
 
 " In the absence of such stipulations between any countries 
 of the Union, the respective countries shall regulate, each for 
 itself, by its domestic legislation, the manner in which the 
 principle contained in Article 14, is to be applied." 
 
 Article 11, No. 4, of the additional act of Paris adds : " The 
 temporary stipulations noted above shall be applicable to 
 countries which may hereafter accede to the Union." 
 
 It will have been seen that the most important of the 
 existing copyright treaties with other nations are revoked by 
 the order of December, 1887, but the rights acquired under 
 them, where still subsisting, are continued by the saving-clauses 
 in Section 10 and 12 of the Statute of 188G, and in Section 7 of 
 the Order in Council of December 6, 1887, and are recognised 
 by the protocol, and the status of the parties interested would 
 continue to be regulated by the orders and treaties as if they 
 had not been revoked. 
 
 Many works which would otherwise have been entitled to 
 protection in Great Britain by virtue of those treaties have 
 long since fallen into the public domain through neglect to 
 register within the prescribed time. 
 
 What, then, is the retrospective scope of Section 6 of the 
 Statute of 1886 ? Does it sweep in all copyright works pro- 
 duced in countries of the Union, even though the copyright 
 has expired by effluxion of time, or the work has been thrown 
 into the public domain as aforesaid by neglect of formalities 
 within the prescribed time, on the one hand (the v/idest 
 possible construction), or does it include no work except those 
 produced after the date of the Statute, and of the Order in 
 Council affecting the state in question, which would be the 
 narrowest scope possible? Of these two extreme views, the 
 first would seem extravagant, and would cause the greatest 
 confusion among parties who had entered into contracts and 
 regulated their affairs, and mounted plays, &c., on the faith of 
 the works being public property. The narrowest view is 
 equally impossible, as it would make useless the proviso in
 
 IV. MUSICAL COPYRIGHT LAW 
 
 Section 6 purporting to save interests arising from production 
 of any work. There is a third middle view (which has received 
 judicial sanction), namely, that Section 6 of the Act only 
 applies to works produced between the date of the Act of 
 1886 coming into operation and that of an Order in Council 
 to be made under the International Copyright Acts. 
 
 The hopeless character of some of the arguments adduced 
 by those who support the first or ultra-retrospective view looks 
 as if they thought that, if their construction were not adopted, 
 many existing copyrights would come to an untimely end, as 
 falling between two Statutes, and not being protected by either. 
 The clauses saving right hereinbefore stated are an answer to 
 this. No vested right would be injured by the middle view. 
 Nothing else could account for the strenuous efforts of the 
 retro-activists, some of them men of undoubted ability, who 
 simply reiterate their opinion that things are as they say, 
 without a word of reasoning to prove it. 
 
 There is not a word in Section 6, nor indeed in the other 
 Sections of the Statute of 1886, nor in the Order in Council 
 made thereunder, which militates against the " middle view " ; 
 and there is a firmly settled rule of law, and a decision of the 
 Court of Appeal in favour of it. 
 
 The rule of law is that " words in a Statute shall not be 
 held to be retrospective unless that meaning is tJie only one 
 which the words tvill hear" ; and that "if some retrospective 
 meaning is imperative, that meaning shall be limited to the 
 extent which the language actually requires " ; in other words, 
 that the description of matters to be affected by an Act will 
 not include past items, unless that description admits of no 
 other construction. 
 
 If the 6th Section be read following this rule, the words 
 *' a work first produced before the date at which such order 
 comes into operation " will be taken to refer, not to works pi'O- 
 duced before the date of the Statute becoming latv, but only to 
 works produced after that date. 
 
 (a) According to (somewhat inaccurate) English phraseology 
 " a work first produced," &c., may have either a past or future 
 scope; in the first part of the Section the words "where an 
 Order in Council is made," &c., must, from tlie necessity of 
 the case, be future, 
 
 (b) The Legislature is quite consistent with the rule above 
 stated, when it uses the words " the author " . . . of " any 
 work first produced before the date at which such order comes 
 into operation, shall be entitled to the same rights and remedies 
 as if the said Acts and this Act (sic) and the said order, had 
 applied to the said foreign country at the date of the said 
 production." 
 
 Those words, no doubt, suppose the possibility of their corre-
 
 APPENDIX V. 
 
 spending negative, viz., of a period when, subsequently to 
 production, a given foreign country will not have become 
 subject to the Acts in question ; hut the phrase creates no 
 difiiculty. 
 
 That period will occur in every case where an Order in 
 Council is made under the International Acts ; for those Acts 
 do not apply to any country (except, indeed, potentially, if at 
 all) until the order is made with reference to it. 
 
 (c) That "the said order" will not apply to the foreign 
 country till it is itself made, is, perhaps, a useless truism, but 
 is as consistent with one construction of the clause as with 
 another. 
 
 (d) The indemnity proviso which concludes Section G fails to 
 adjust the rights of parties on the ultra-retrospective theory, 
 and is practically inconsistent with any but the middle view. 
 
 If works in which copyright had expired long before the date 
 of the Statute, either through effluxion of time, or through the 
 neglect to register under the old conventions, were held to be 
 revived, persons, who on the faith of that expiry, had expended 
 large sums on staging operas, printing and preparing costly 
 books, &c., would have no redress for their loss if the works 
 were not actually produced (i.e., produced in the country of 
 the forum), for the j^^oviso strictly confines its indemnity to the 
 case of a produced work ; and this, although the person 
 expending the money would have no constructive knowledge, 
 and very probably no actual knowledge, that a Statute was 
 going to pass which would prevent production, and, ex post 
 facto, render his expenditure useless. The Legislature would 
 have come down upon him with an unexpected stroke and 
 punish him for acting on a state of law and fact which he was 
 entitled to consider finally settled, and which had brought the 
 woik within the public domain, so that he was free to deal 
 with it as he pleased. 
 
 On the other hand, if the scope of the Section be held only 
 to include works subsequent in date of production to that of 
 the Statute being promulgated there would be no injustice 
 and the proviso would be suflicient for all purposes. 
 
 They would know that they would spend their money in 
 preparing the way for production, at their peril, with the 
 Statute of 1886 hanging over them. 
 
 Provisos for indemnity are often thrown in by draftsmen with- 
 out any very definite idea of the precise case in which they will 
 be required, but with an intention of covering every possible 
 case of hardship, foreseen or otherwise. It is unprecedented 
 that the legislator should, going into the opposite extreme, have 
 intended to produce a case of such injustice as that which would 
 occur if the Statute of 1886 were held to resuscitate dead copy- 
 rights, without making the indemnity clause large enough to
 
 VI. MUSICAL COPYRIGHT LAW 
 
 cover all reasonable loss, not merely loss on production of a 
 work, but also loss in respect of expenditure reasonably 
 incurred (though without actual production of the piece), on 
 the faith of a tacit assurance by Parliament that a dead mono- 
 poly will not be revived by a sensational and unnecessary 
 alteration of the Statute Book. 
 
 A concrete example makes this reasoning clear. The follow- 
 ing facts resemble substantially a case which occurred, the 
 dates only are somewhat altered. 
 
 Assume " Faust " (Gounod) produced in France, in January, 
 1860. 
 
 The right to British protection expired in April, 1860, for 
 want of registration within three months. 
 
 Mr. Mapleson spends £5,000 in preparing a revival in 1885. 
 The Statute passes in 1886 before he has produced the toorh. 
 
 Gounod's assignees could, if the Statute is to receive the 
 ultra-retrospective construction, restrain production, and the 
 indemnity clause would not apply. Yet Mr. Mapleson would 
 have been rightly relying on the Statute of 1844, and orders 
 under it, which entitled him to consider British protection gone 
 for ever, qua Faust. No legal adviser, however learned, no 
 foresight, could have saved him from taking a course, not even 
 imprudent, far less illegal. 
 
 On the other hand, the proviso would be amply sufficient 
 to meet all cases which might arise, if the Statute of 1886 be 
 held to apply to works published after its date. 
 
 Taking the facts already stated, Mr. Mapleson could reap 
 the fruits of his labour and expenditure before the passing of 
 the Statute, by producing after that date Gounod's work in 
 England, as the work would remain public property, not being 
 comprised in the scope of the Statute of 1886, the proviso then 
 would not be wanted. From the time of that Statute passing 
 impresarios and publishers would be fixed with notice that the 
 Statute Book contained clauses, under which, without any 
 alteration of the law of the land, a mere interchange of diplo- 
 matic notes with a given State, would put the Privy Council in 
 motion to pass an order giving protection in Great Britain. If, 
 after having that notice, they were to risk money in preparing 
 "Faust" for production, they would have only themselves to 
 thank when such production was restrained. 
 
 (e) It is not unworthy of comment that special emphasis 
 is more than once laid by both Statute and Order on the 
 interval " before the date of the Order coming into operation," 
 and it is natural to ask why, if matters prior in date to the 
 passing of the Statute are to be brought in, are the words 
 " produced before the date of this Act becoming law," or some 
 similar words, never to be found in either the Statute or the 
 Order ? Such words would avoid all question and would not
 
 APPENDIX Vll. 
 
 have been omitted by a draftsman, presumably acquainted 
 with the rule of law above stated, viz. : — 
 
 That " a Statute is not to be construed retrospectively 
 unless and to a greater extent than the words require." 
 
 The present writer in the first edition of a work frequently Cutler, 
 herein referred to, before any judicial or other notice of the we^atheri^y 
 question had been taken, suggested as a sound construction, first (not 
 and one making the whole Statute consistent with this rule edition, 
 of law and with itself, the middle view noticed already ; chapter^' p°*^ 
 namely, that "the retrospective clause was only iutended to 75,et scquUur. 
 apply to works produced between the date of the Statute of Lauri imi..,- 
 1886 coming into operation, and that of any Order in Council ^?^'^' 1892, 
 (that of December, 1887, or any future ones) being issued " ; 402. ' ' 
 and the Court of Appeal held that this was the right view. 
 
 It is said, however, by objectors that this decision clashes 
 with the Berne Convention, Article 14, which purports to 
 bring in all the works not yet fallen " into the imhlic domain 
 in the country of origin "; that this clause must outweigh any 
 construction of Section 6 which militates with it, without 
 reference to what might have been held the right construc- 
 tion if the Berne Convention had not been on the tapis : that 
 the Berne Convention and no future ones are to be the guide ; 
 and that Section 6 is to be taken to bring in all works alive 
 in the country of origin whatever their date, whatever the 
 circumstances which may have deprived them of any right to 
 protection. 
 
 There are obvious answers to this : — 
 
 (1) The protocol, which is so undeservedly ignored by the 
 champions of the ultra - retrospective view, provides that 
 Article 14 shall " operate according to the stipulations which 
 may be contained in special conventions either existing or 
 to be concluded." It is doing no violence to language to hold 
 that a convention revoked in form, but kept alive in substance, 
 is contemplated by this phrase, especially when it is not shown 
 that any conventions unrevoked were in existence to account 
 for the words. 
 
 Now the old convection with France of 1852 (to take one 
 country as an illustration) made registration within three 
 months a condition of obtaining copyright in Great Britain. 
 This convention (like many others) was kept alive iji substance 
 by Section 12, Placitum B, of the Statute of 1886. It would 
 seem that in each case the terms of the " special convention " 
 applying to it ought to be considered in construing Article 14. 
 At all events, that Article ought not to be read without due 
 weight being given to the protocol which forms part of it. 
 
 (2) The Statute must be construed according to the well- 
 settled rules of construction ; and its scope cannot be widened
 
 vm. MUSICAL COPYRIGHT LAW 
 
 even if the Privy Council, purporting to Act under the Statute, 
 have exceeded their powers. 
 
 (3) All those who oppose the writer's view seem to forget 
 that the Berne Convention is by no means the only one which 
 is contemplated by the Statutes of 1844 and 1886. Many 
 others may follow, and some have followed, but Section 6 will 
 remain. Supposing that a convention with Eussia or America 
 contained a clause differing from Article 14 of the Berne 
 Convention, and in terms excluding works fallen into the 
 public domain in the country of the forum ! "Would the 
 objectors veer round and give a totally different meaning to 
 the inflexible Section 6, by a sort of opportimisme ? It is said 
 by those whose arguments are only applicable to the case of 
 one convention, that the writer's view would give too in- 
 significant a scope in point of time and importance to the 
 proviso at the end of Section 6 ; but this is disposed of by 
 the fact that there may be an interval of thirty years, or 
 perhaps much more, between the date of the Statute of 1886 
 and future Orders in Council to be made under that Statute 
 and the one of 1844; and that many important "rights and 
 interests " may arise in the interim and call for protection. 
 
 (4) It is by no means certain that the draft convention, as 
 referred to by the Act, may not have been modified in some 
 details after the Statute became law ; and in this connection 
 it is worthy of notice that the Statute of 1886 only speaks of 
 a " draft " having been agreed to, that is to say, a thing m 
 fieri and incomplete in its nature ; and what is still more 
 pertinent, the Order confirming the Berne Convention and 
 giving it force did not come into operation till December 6, 
 1887, and refers to the Berne Convention as made on 
 " the 5th September, 1887," till which date it was only an 
 inchoate instrument. 
 
 Hanf- It is true that in one case Lord Esher declined to look into 
 
 wr^vfAmeri- the point whether the draft of the Berne Convention differed 
 
 can Tobacco fi-Qm the document which was signed, but he evidently was 
 
 1895, ^ ignormg the fact that tiie Berne Convention is only one of 
 
 Benclf.^'ia. many which may occur, not under the Act of 1886 alone, but 
 
 under that Act in conjunction with the Statute of 1844. 
 
 Indeed, the whole case seems to have been argued and to have 
 
 proceeded on the same fallacy; viz., that the Act of 1886 and 
 
 the Berne Convention were co-extensive and inseparable, and 
 
 that were that convention out of the way, the Statute would 
 
 have no raison cVetre : so far, however, from this being so, 
 
 Section 8 (the enactment applying the Copyright Acts to 
 
 works produced in the Colonies) is at least as important a 
 
 factor in the necessity for passing the Act as the international 
 
 subject-matter. 
 
 The Berne Convention takes its validity from the Act of
 
 APPENDIX IX. 
 
 1844 ; the Act of 1886 supplies some matters of detail by way 
 of supplement ; and no doubt the convention containing those 
 details " could not be carried into effect without the authority 
 of Parliament," but this is no reason why the Statute should 
 be moulded to suit the Berne Convention, rather than the 
 Austrian Convention or any future ones. 
 
 It would be interesting to see how far Lord Esher would 
 have carried his doctrine that the Statute must yield to the 
 Convention. Would he have adhered to it not merely where 
 the rule of law requires a particular construction, but also 
 where the words of the Statute are hopelessly inconsistent with 
 those of the Convention, which is actually the case with 
 reference to copyright in translations. 
 
 (5) The Article 14, moreover, is not final in its form and 
 contemplates future " reserves and conditions," and the manner 
 in which it is to be applied is to be regulated by domestic 
 legislation. 
 
 This is a very different case from the short abridgment of 
 Article 14, usually put prominently forward in argument, and 
 which wholly ignores the final protocol, Section 4. 
 
 The case of Lauri versus Kenad dealt with a right of trans- J,^^^' ^ 
 lation arising in 1879, under the Statute 15 and 16 Vict., 402.^°^'^^' 
 chapter 12, Sections 4 and 11, and the Order in Council of 
 November 3, 1851, which is confirmed by that Statute. The 
 joint effect of these instruments was to give dramatic authors a 
 right of translation for five years, and no more, from the date 
 of publication. This right was subject to an obligation to 
 register within three months from the publication of such 
 translation, which had not been done. 
 
 After the right of translation had expired, the plaintiff 
 (the well-known acrobat, Lauri) sued for an injunction to 
 restrain performance (and incidentally, infringement of copy- 
 right) of the piece "Le voyage en Suisse," the subject of the 
 translation in question. 
 
 The Master of the Eolls, Sir N. Lindley, and Lords Justices 
 Bowen and Kay, held unanimously after full argument and a 
 long and careful hearing, that the term of exclusive translation 
 right having expired could not be revived by the Statute of 
 1886, and Order in Council ; that a copyright no longer in 
 force at the date of the Statute coming into operation could 
 not be resuscitated ; and that the operation of the 6th Section 
 was confined to the interval between the date of the Statute of 
 1886 and that of any Order in Council to be made under it, 
 or rather under the Statutes of 1844 and 1886 combined. 
 
 A clearer enunciation of the principle confining the scope of 
 Section 6 to " the middle view," or a stronger Court pronounc- 
 ing it, cannot be conceived ; but Mr. Justice Charles, profess-
 
 X. 
 
 MUSICAL COPYBIGHT LAW 
 
 mg 
 
 Hanf- 
 staengle 
 versus Hol- 
 loway, 1893, 
 2 Queen's 
 Bench Divi- 
 sion, 1. 
 
 4th edition. 
 
 to act in accordauce with that principle, gave a decision 
 flatly in contradiction with it. 
 
 The case before him was one of International Copyright in a 
 painting made in 1881, and first published in Germany in 1886. 
 The defendants had it photographed. The painting having 
 been made and published before the passing of the Statute 
 of 1886, Mr. Justice Charles held that Section 6 applied "to 
 all works produced before the Order in Council came into 
 operation, whether they were produced before or after the 
 passing of the Act." 
 
 This is the actual language of the learned judge. 
 
 In his valuable treatise Mr. Scrutton comments on Lauri 
 versus Eenad as follows : " It is respectfully submitted that 
 the decision was wrong. The piece in question had not in 
 1887 fallen into the public domain in France, its country of 
 origin ; the fact that it could in 1886 have been translated 
 in England, which was not its country of origin, appears 
 immaterial, except to justify the proviso to Section 6 of the 
 Act of 1886, which was not applicable in Lauri versus Eenad. 
 It appears from the same reasoning to be immaterial that the 
 author of a work produced before 1886, had not acquired 
 English copyright by failing to register within a year of first 
 publication, as required by the earlier Copyright Act and 
 Orders in Council ; provided that in 1887 his work was the 
 subject of copja'ight in the country of origin, so as to come 
 within Section 14 of the Convention. This, indeed, was the 
 state of facts in Hanfstaengie versus HoUoway, 1893, 2 Q. B., 1." 
 
 It will be seen that Mr. Scrutton simply lays down the law 
 as to w^hat facts were "immaterial," without a scrap of argu- 
 ment to show why. He tells us what " appears from the 
 same reasoning " without having reasoned at all about the 
 matter. The writer has humbly endeavoured to show that 
 reasoning points in the other direction. 
 
 Lauri versus Eenad was a case of effluxion of time : to say 
 " the decision was wrong," therefore, amounts to saying that, 
 even in the case of copyrights expired by effluxion of time in 
 the countr}'^ of the forum, Section 6 would apply, and give a 
 renewed term ; but, even admitting for a moment that Article 
 14 controls Section 6, and that the Convention applies to 
 everything alive in the country of origin, the result would only 
 be that an author so favoured would enjoy the rights given to 
 natives (i.e., of the country of the forum), and the right of a 
 native of Great Britain to a copyriglit dating from say forty- 
 two years back would be probably 7iiL 
 
 Lauri versus Eenad was a case of the term given to authors 
 as a limit of exclusive translating right. But let us take a 
 case like Gounod's Opera of Mireille, which we will suppose 
 to have been produced about 1860, in Paris at the Opera
 
 APPENDIX XI. 
 
 Comique. The right would not be yet expired in the country 
 of origin, where the protection lasts, rouglily speaking, fifty 
 years from the death of the author. The right of " a native " 
 of Great Britain, however, would have expired by efliuxion of 
 time since 1860, and he could take nothing under Article 2 of 
 the Convention, unless some ingenious mode can be suggested 
 of inventing or conferring a period less in duration than the 
 whole term of British Copyright repeated over again (if the 
 term granted by the country of origin lasted so long), for it is 
 hardly conceivable that the author should be benefited to this 
 extent without having done anything to deserve it. 
 
 In Lauri versus Eeuad no doubt, the period at issue was so 
 much shorter than in the case last supposed, that the result of 
 holding the retrospective view was less startling. 
 
 The view, however, of the eminent judges who decided that 
 case was unequivocally " to negative the idea that the Berne 
 Convention could revive a copy- or performing-right which 
 had come to a termination by any mode." An ingenious 
 distinction between effluxion of time and loss of right by 
 omission to register, has been suggested by those who wish 
 to escape from the decision, but no one who was engaged in the 
 case (except perhaps a disappointed litigant) could l)lind 
 themselves so completely as to suppose that the principle 
 meant to be enunciated would not cover the case of a copy- 
 right allowed to expire for want of compliance with the 
 formalities required by the early convention to be completed 
 within a given time. The distinction sought to be established 
 between the word "expired" used by their Lordships, and 
 dead from neglect or "allowed to lapse" has no foundation, 
 except in the wish w^hich is father to the thought. 
 
 A question, which has never been noticed in any treatise, 
 arises upon the construction of the convention with France, in 
 1852,* and of some others framed on the same model. That 
 convention imposed as a condition to the attainment of copy- 
 right in the United Kingdom for a French work, that it should 
 be registered at Stationers' Hall within three months of first 
 publication abroad. The point that arises upon the language 
 of the document is, whether this formality is, what is called 
 in legal phraseology, a condition subsequent, or a condition 
 precedent ; in other words, does the copyright arise auto- 
 matically on publication, subject to be destroyed if no registra- 
 tion occurs during the delay of three months, or is there no 
 protection for the work until registration ? This question is 
 
 * It was found impossible to set out this documont in a work of this 
 size. It will be found set out z?i extenso in the second edition of Copiuger, 
 and in other works on copyright of a date previous to 188G.
 
 XU. MUSICAL COPYRIGHT LAW 
 
 only of importance now, because it has been suggested, 
 in favour of the view that dead copyrights can be revived by 
 the Act of 1886, that French works which have been omitted 
 to be registered are not the subject of expired copyright, and 
 that the condition is precedent, and no copyright ever arose. 
 It is difficult to see, however, how, even should the convention 
 receive tliis construction, the case would be rendered more 
 favourable for the first view. The reasoning seems a two-edged 
 one, which may tell for either side. 
 
 It will be seen that the principle involved in Hanfstaengle 
 versus Holloway, is identical with that in Lauri versus Eenad ; 
 and this is admitted even by Mr. Scrutton, the most ardent 
 champion of the ultra-retrospective theory. 
 
 Mr. Justice Charles, in his judgment, never sought to dis- 
 tinguish the two cases, on the ground of the subject-matter 
 not being actually identical, or otherwise ; but he, neverthe- 
 less, while professing to decide in accordance with Laurie 
 versus Renad, used language the exact contradictory of that of 
 the Court of Appeal. Lauri versus Renad raised neatly the 
 point, " Can — yes or no — a copyright, defunct at the date 
 of the Statute of 1886, come into renewed vigour by the 
 effect of Section 6?" and the Court said unanimously that it 
 could not, and that Section 6 only revived works produced 
 since the date of the Statute, and which expire between that 
 date and the date of any Order in Council under the Statutes 
 of 1844 and 1886. 
 
 Mr. Justice Charles, on the contrary, said distinctly that he 
 considered that " the Section 6 covered all works of whatever 
 date, whether alive or dead at the date of the Statute com- 
 mencing." 
 
 Agaiu, the Court in Lauri versus Renad said that to hold 
 Section 6 retrospective, so as to bring in copyrights dead at 
 the statutory date, would be to violate the maxim that ^' nova 
 constitutio futuris formam debet imponere, non prateritls. 
 
 Mr. Justice Charles said, to give the Section that effect 
 violated no maxim of the sort. 
 
 If it could be suggested that the difference between the subject- 
 matters of the two cases was one affecting the principle of law 
 applying to them, that suggestion did not occur to Mr. Scrut- 
 ton, who, in his able work, is forced to deny the validity of 
 Lauri versus Renad in order to support his view that Section 6 
 is retrospective as to everything, and (the writer supposes) his 
 opinion tliat the Latin rule relied on by the Court of Appeal 
 as to retrospective effect of Statutes is obsolete and to be 
 disregarded. 
 
 To recapitulate briefly, the fallacy lying at the root of all 
 the arguments against Lauri versus Renad is the supposition 
 that the International Copyright Act, 1886, is to be moulded,
 
 APPENDIX Xin. 
 
 and the legal construction varied, to bring it into harmony 
 with one particular convention, to the exclusion of all others, 
 which may be wholly dill'erent in their terms, because, for- 
 sooth, the Statute contains an allusion to the one favoured 
 document, and that a document, which was then only in draft 
 and not in operation for months afterwards. 
 
 But even if it be held that the Berne Convention ought to 
 control the construction of the Statute of 1886, and impose 
 upon that Statute a meaning which may be inconsistent with 
 future conventions, it is by no means clear that Article 14 does 
 necessitate the ultra-retrospective view, if the protocol have its 
 due weight. The effect of the protocol, then, would be that 
 interests acquired by the public through the lapse of copy- or 
 performing-right by failure to observe the formalities required 
 under the old conventions would not be allowed to be com- 
 promised, through the suggested retrospective effect given to 
 Section 6 by Mr. Justice Charles, in opposition to the words 
 of Lord Justice Lindley and Kay. 
 
 Mr. Justice Charles said that "the words did not oblige" 
 him to hold that the Section was not retrospective. 
 
 That was not sufficient. Mr. Justice Lindley had laid down 
 the converse in Lauri versus Kenad, viz., that the Courts 
 cannot hold a Section retrospective unless the language plainly 
 requires such a construction. 
 
 It can hardly be said by the keenest retro-activist, that there 
 is no doubt on Section 6, nor does even Mr. Justice Charles 
 say so ; he only says (in effect) that it was inconvenient not to 
 take in prior works in date, and that the words did not force 
 him to hold the contrary of what seemed convenient, and that 
 is just what the Court of Appeal said was not a legitimate 
 ratio decidendi. 
 
 It is to be hoped that the whole subject will be dealt with 
 by the Court of Final Appeal. 
 
 The clause relating to scope, qud date, of the Austro- 
 Hungarian Convention with Great Britain (which came into 
 operation on May 11, 1894), is subject to the same question as 
 to retrospective operation as the Berne Convention. The ^*^° ® ' 
 description of works " prior to the date of the convention 
 coming into effect," occurring frequently, seems to contem- 
 plate the construction which would admit works produced 
 between the date of the Statute of 1886 becoming law and 
 that of the Order in Council. 
 
 In the case of Moul versus Gronings, after the Berne Con- Moul wrju* 
 vention had been signed, the owner of a French work sued a isGi, 2, 
 Brighton chef d'orchestre for performing that work, although Bench Divi- 
 it had fallen into the pubhc domain for w^ant of registration sion, 443. 
 under the convention of 1852. The writer, who was counsel 
 for the defendant, argued that the Statute of 1886 did not bring 
 10
 
 XIV. 
 
 MUSICAL COPYRIGHT LAW 
 
 in and revive the expired work ; but it became unnecessary to 
 Section 6 of decide the point, as the Court held that, tlie ivork having been 
 of^lsl!^*^ P'^'odticed, the proviso in Section 6 indemnified the defendant 
 and freed him from all liability to the plaintiff, whether the 
 Statute was retrospective or not. The short point that the 
 defendant had "an interest which was of value" was a 
 tempting one to seize upon as a ratio decidendi, and their 
 Lordships escaped embarking upon the wider question of the 
 statutory scope, wisely, as the length of this essay upon it 
 clearly shows. 
 
 The limits of this ivork preclude the possibility of setting out in 
 extenso all the statutes affecting copyright ; a selection has been 
 made of those which are recent in date, or are difficult to obtain. 
 
 APPENDIX B. 
 
 A.D. 1882. 
 
 Printed 
 notice re- 
 straining 
 ublic per- 
 ormance. 
 
 ?c 
 
 [45 & 46 Vict.] Copyright {Musical Compositions) [Ch. 40.] 
 
 Act, 1882. 
 
 An Act to amend the law of Copyright relating to Musical 
 Compositions. [August 10, 1882.] 
 
 WHEEEAS it is expedient to amend the law relating to 
 copyright in musical compositions, and to protect the public 
 from vexatious proceedings for the recovery of penalties for 
 the unauthorised performance of the same : — 
 
 Be it therefore enacted by the Queen's most Excellent 
 Majesty, by and with the advice and consent of the Lords 
 Spiritual and Temporal, and Commons, in this present 
 Parliament assembled, and by the authority of the same, 
 as follows : — 
 
 (1) On and after the passing of this Act the proprietor of 
 the copyright in any musical composition first published after 
 the passing of this Act, or his assignee, who shall be entitled 
 to and be desirous of retaining in his own hands exclusively 
 the right of public representation or performance of the same, 
 shall print or cause to be printed upon the title-page of every 
 published copy of such musical composition a notice to the 
 effect that the right of public representation or performance 
 is reserved. 
 
 (2) In case, after the passing of this Act, the right of public 
 representation or performance of, and the copyright in, any
 
 APPENDIX XV. 
 
 musical composition shall be or become vested before publica- Provision 
 tion of any copy thereof in ditTerent owners, then, if the owner ^p^rform- 
 of the right of public representation or perfornianco shall desire ai^ce and^ 
 to retain the same, he shall, before any such publicaiiou of are vested 
 any copy of such musical composition, give to the owner of o^n'^iy®"^^ 
 the copyright therein notice in writing requiring him to print 
 upon every copy of such musical composition a notice to the 
 effect that the right of public representation or performance 
 is reserved ; but in case the right of public repi'esentation or 
 performance of, and the copyright in, any musical composition 
 shall, after publication of any copy thereof subsequently to the 
 passing of this Act, first become vested in different owners, 
 and such notice as aforesaid shall have been duly printed on 
 all copies published after the passing of this Act previously to 
 such vesting, then, if the owner of the right of performance 
 and representation shall desire to retain the same, he shall, 
 before the publication of any further copies of such musical 
 composition, give notice in writing to the person in whom the 
 copyright shall be then vested, requiring him to print such 
 notice as aforesaid on every copy of such musical composition 
 to be thereafter published. 
 
 (3) If the owner for the time being of the copyright in any Penalty on 
 musical composition shall, after due notice being given to him °opy1-^ght 
 or bis predecessor in title at the time, and generally in accord- for non-com- 
 ance with the last preceding section, neglect or fail to print notice^from 
 legibly and conspicuously upon every copy of such composition °j^£f^f*^g 
 published by him or by his authority, or by any person law- formance. 
 fully entitled to publish the same, and claiming through or 
 
 under him, a note or memorandum stating that the right of 
 public representation or performance is reserved, then and in 
 such case the owner of the copyright at the time of the 
 happening of such neglect or default, shall forfeit and pay to 
 the owner of the right of public representation or performance 
 of such composition the sum of twenty pounds, to be recovered 
 in any Court of competent jurisdiction. 
 
 (4) Notwithstanding the provisions of the Act passed in the 9^^*fw-ii 
 third and fourth years of His Majesty King William the Fourth, iv., o. 15^ 
 to amend the laws relating to dramatic literary property, or 
 
 any other Act in which those provisions are incorporated, the 
 costs of any action or proceedings for penalties or damages in 
 respect of the unauthorised representation or performance of 
 any musical composition published before the passing of this 
 Act shall, in cases in which the plaintiff shall not recover more 
 than forty shillings as penalty or damages, be in the discretion 
 of the Court or judge before whom such action or proceedings 
 shall be tried. 
 
 (5) This Act may be cited as the Copyright (Musical ^^°^* ***^®- 
 Compositions) Act, 1882.
 
 XVI. MUSICAL COPYRIGHT LAW 
 
 [51 & 52 Vict.] Copyright {Musical Compositions) [Ch. 17.] 
 
 Act, 1888. 
 
 An Act to amend the Law relating to the Eecovery of 
 Penalties for the unauthorised Performance of Copyright 
 Musical Compositions. [July 5, 1888.] 
 
 WHEREAS it is expedient to further amend the law 
 aelating to copyright in musical compositions, and to further 
 protect the public from vexatious proceedings for the recovery 
 of penalties for the unauthorised performance of the same : — 
 A.D. 1888. Be it therefore enacted by the Queen's most Excellent 
 
 Majesty, by and with the advice and consent of the Lords 
 Spiritual, Temporal, and Commons, in this present Parliament 
 assembled, and by the authority of the same, as follov^s : — 
 Provision (1) Notwithstanding the provisions of the Act of the Session 
 
 ^ *° held in the third and fourth years of His Majesty King William 
 
 the Fourth, chapter fifteen, to amend the laws relating to 
 dramatic literary property, or any other Act in which those 
 provisions are incorporated, the penalty or damages to be 
 awarded upon any action or proceedings in respect of each 
 and every unauthorised representation or performance of any 
 musical composition, whether published before or after the 
 passing of this Act shall be such a sum or sums as shall, 
 in the discretion of the Court or judge before whom such 
 action or proceedings shall be tried, be reasonable, and the 
 Court or judge before whom such action or proceedings shall 
 be tried may award a less sum than forty shillings in respect 
 of each and every such unauthorised representation or per- 
 formance as aforesaid, or a nominal penalty or nominal 
 damages as the justice of the case may require. 
 Costs to be (2) The costs of all such actions or proceedings as aforesaid 
 o?iudge.*^°^ shall be in the absolute discretion of the judge before whom 
 45&46Vict., such actions and proceedings shall be tried, and Section 4 of 
 the Copyright (Musical Compositions) Act, 1882, is hereby 
 repealed. 
 Proprietor (3) The proprietor, tenant, or occupier of any place of 
 perm/tting'^ dramatic entertainment, or other place at which any un- 
 such per- authorised representation or performance of any musical 
 be exempt, composition, whether published before or after the passing 
 of this Act, shall take place, shall not by reason of such 
 representation or performance be liable to any penalty or 
 damages in respect thereof, unless he shall wilfully cause 
 or permit such unauthorised representation or performance, 
 knowing it to be unauthorised. 
 Saving for (4) The provisions of this Act shall not apply to any action 
 pfjfy^^ ^^^ or proceedings in respect of a representation or performance
 
 APPENDIX XVll. 
 
 of any opera or stage play in any theatre or other place of 
 public entertainment duly licensed in that respect. 
 
 (5) This Act may be cited as the Copyright (Musical Short title. 
 Compositions) Act, 1888. 
 
 [2 Edw. 7.] Musical {Summary Proceedings) [Ch. 15.] 
 
 Co pyright Act, 1902. 
 
 An Act to amend the Law relating to Musical Copyright, a.d. 1902. 
 
 [July 22, 1902.] 
 BE it enacted by the King's most Excellent Majesty, by 
 and with the advice and consent of the Lords Spiritual and 
 Temporal, and Commons, in this present Parliament assembled, 
 and by the authority of the same, as follows : — 
 
 (1) A court of summary jurisdiction , upon the apphcation of Seizure, &c., 
 the owner of the copyrignt in any musical work, may act copies. 
 
 as follows : If satisfied by evidence that there is reasonable 
 ground for believing that pirated copies of such musical work 
 are being hawked, carri ed ab out, sold, or of fered for sal e, may, 
 by order, auttiorise a constable to seize such copies without 
 warrant and to bring them before the court, and the court, on 
 proof that the copies are p irate d, may order them to be 
 destroyed or to be delivere d up to the owner of the copyright 
 if he makes~iappli cation for that delivery. 
 
 (2) If any person shall hawk, carry about, se l l, or o ffer for Power to 
 sale a ny pirated co py of any musical work, ev ery such pirated on ifawkers^. 
 copy may be seized by a ny cons table without warrant, on the 
 
 request in writmg of the apparent owner of the copyright in 
 8uch^work7or of his agent thereto authorised in writing, and 
 at the risk of such owner. 
 
 On sei zure of any such copies, they shall be conveyed by 
 such constable befo re a c ourt of summary jurisdiction, and on 
 proof that they ar e infring ements of copyri ght, shall be 
 foiTeited or destroyed, or otherwise dealt with as the court 
 may think fit. 
 
 (3) "Musical copyright" means t he exclusive right of the Deflnitions. 
 nwnfir of snc.h popvright u nder the Copyright Acts in force for 
 
 I Tie time being to do or to authorise another person to do air 
 or any of the toUowing things in respect of a musical work : — 
 
 (1) To ma ke pop ies by writing or otherwise of such musical 
 work. 
 
 (2) To abridge such musical work. 
 
 (3) To make any new ada ptation, arrangement, or setting of 
 such musical work, or of the melody thereof, in any notation 
 or system, 
 
 " Musical work " means any combination of melody and
 
 Xviii. MUSICAL COPYRIGHT LAW 
 
 harmony, or either of them, printed, reduced to writing, or 
 otherwise graphically produced or reproduced. 
 
 " Pirated mnsinal wo rk " means any musical work written, 
 printed, or otherwise reproduced, without the consent lawfull y 
 given by the owner of the copvrip; ht in such musical work. 
 Short title (4) I'his act may be cited as the Musical (Summary Pro- 
 
 o„^ ceedings) Copyright Act, 1902, and shall come into operation 
 
 on the first day of October one thousand nine hundred and two, 
 and shall apply only to the United Kingdom. 
 
 and com 
 mencement 
 
 APPENDIX C. 
 
 THE BERNE CONVENTION. 
 
 Akticle 1. 
 
 The Contracting States are constituted into an Union for the 
 protection of the rights of authors over their literary and artistic 
 works. 
 
 Article 2. 
 
 Authors of any of the countries of the Union, or their lawful 
 representatives, shall enjoy in the other countries for their works, 
 whether published in one of those countries or unpublished, the 
 rights which the respective laws do now or may hereafter grant 
 to natives. 
 
 The enjoyment of these rights is subject to the accomplish- 
 ment of the conditions and formalities prescribed by law in the 
 country of origin of the work, and cannot exceed in the other 
 countries the term of protection granted in the said country of 
 origin. 
 
 The country of origin of the work is that in which the work 
 is first published, or if such publication takes place simul- 
 taneously in several countries of the Union, that one of them 
 in which the shortest term of protection is granted by law. 
 
 For unpublished works the country to which the author 
 belongs is considered the country of origin of the work. 
 
 Article 3. 
 
 The stipulations of the present Convention apply equally to 
 the publishers of literary and artistic works published in one 
 of the countries of the Union, but ol which the authors belong 
 to a country which is not a party to the Union.
 
 APPENDIX - XIX. 
 
 Article 4. 
 
 The expression "literary and artistic works" comprehends 
 books, pamphlets, and all other writings; dramatic or dramatico- 
 musical works, musical compositions with or without words; 
 works of design, painting, sculpture, and engraving; lithographs, 
 illustrations, geographical cliarts ; plans, sketches, and plastic 
 works relative to geography, topograpliy, architecture, or science 
 in general ; in fact, every production whatsoever in the literary, 
 scientific, or artistic domain which can be published by any 
 mode of impression or reproduction. 
 
 Article 5. 
 
 Authors of any of the countries of the Union, or their lawful 
 representatives, shall enjoy in the other countries the exclusive 
 right of making or authorising the translation of their works 
 until the expiration of ten years from the publication of the 
 original work in one of the countries of the Union. 
 
 For works published in incomplete parts {livraisons) the 
 period of ten years commences from the date of publication of 
 the last part of the original work. 
 
 For works composed of several volumes published at intervals, 
 as well as for bulletins or collections (caJners) published by 
 literary or scientific societies, or by private persons, each 
 volume, bulletin, or collection is, with regard to the period of 
 ten years, considered as a separate work. 
 
 In the cases provided for by the present Article, and for the 
 calculation of the period of protection, December 31 of the year 
 in which the work was pubhshed is admitted as the date of 
 publication. 
 
 Article 6. 
 
 Authorised translations are protected as original works. They 
 consequently enjoy the protection stipulated in Articles 2 and 3 
 as regards their unauthorised reproduction in the countries of 
 the Union. 
 
 It is understood that, in the case of a work for w^hich the 
 translating right has fallen into the public domain, the trans- 
 lator cannot oppose the translation of the same work by other 
 writers. 
 
 Article 7. 
 
 Articles from newspapers or periodicals published in any of 
 the countries of the Union may be reproduced in original or in 
 translation in the other countries of the Union, unless the 
 authors or publishers have expressly forbidden it. For periodi- 
 cals it is sufficient if the prohibition is made in a general manner 
 at the beginning of each number of the periodical. 
 
 This prohibition cannot in any case apply to articles of
 
 XX. MUSICAL COPYRIGHT LAW 
 
 political discussion, or to the reproduction of news of the day 
 or current topics. 
 
 Article 8. 
 
 As regards the liberty of extracting portions from literary or 
 artistic works for use in publications destined for educational 
 or scientific purposes, or for chrestomathies, the matter is to 
 be decided by the legislation of the different countries of the 
 Union, or by special arrangements existing or to be concluded 
 between them. 
 
 Article 9. 
 
 The stipulations of Article 2 apply to the public representa- 
 tion of dramatic or dramatico-musical works, whether such 
 works be published or not. 
 
 Authors of dramatic or dramatico-musical works, or their 
 lawful representatives, are, during the existence of their exclu- 
 sive right of translation, equally protected against the un- 
 authorised public representation of translations of their works. 
 
 The stipulations of Article 2 apply equally to the public 
 performance of unpublished musical works, or of published 
 works in which the author has expressly declared on the title- 
 page or commencement of the work that he forbids the public 
 performance. 
 
 Article 10. 
 
 Unauthorised indirect appropriations of a literary or artistic 
 work, of various kinds, such as adaptations, arrangements of 
 music, &c., are specially included amongst the illicit reproduc- 
 tions to which the present Convention applies, when they are 
 only the reproduction of a particular work, in the same form, 
 or in another form, with non-essential alterations, additions, 
 or abridgments, so made as not to confer the character of a 
 new original work. 
 
 It is agreed that, in the application of the present Article, 
 the Tribunals of the various countries of the Union will, if 
 there is occasion, conform themselves to the provisions of their 
 respective laws. 
 
 Article 11. 
 
 In order that the authors of works protected by the present 
 Convention shall, in the absence of proof to the contrary, be 
 considered as such, and be consequently admitted to institute 
 proceedings against pirates befoi'e the Courts of the various 
 countries of the Union, it will be sufficient that their name be 
 indicated on the work in the accustomed manner. 
 
 For anonymous or pseudonymous works, the publisher 
 whose name is indicated on the work is entitled to protect 
 the rights belonging to tlio author. He is, without other
 
 APPENDIX XXI. 
 
 proof, reputed the lawful representative of the anonymous or 
 pseudonymous author. 
 
 It is, nevertheless, agreed that the Tribunals may, if 
 necessary, require the production of a certificate from the 
 competent authority to the effect that the formalities pre- 
 scribed by law in the country of origin have been accomplished, 
 as contemplated in Article 2. 
 
 Article 12. 
 
 Pirated works may be seized on importation into those 
 countries of the Union where the original work enjoys legal 
 protection. 
 
 The seizure shall take place conformably to the domestic 
 law of each State. 
 
 Article 13. 
 
 It is understood that the provisions of the present Conven- 
 tion cannot in any way derogate from the right belonging to 
 the Government of each country of the Union to permit, to 
 control, or to prohibit, by measures of domestic legislation or 
 police, the circulation, representation, or exhibition of any 
 works or productions in regard to which the competent 
 authority may find it necessary to exercise that right. 
 
 Article 14. 
 
 Under the reserves and conditions to be determined by 
 common agreement,* the present Convention applies to all 
 works which at the moment of its coming into force have not 
 yet fallen into the public domain in the country of origin. 
 
 Article 15. 
 
 It is understood that the governments of the countries of 
 the Union reserve to themselves respectively the right to enter 
 into separate and particular arrangements between each other, 
 provided always that such arrangements confer upon authors 
 or their lawful representatives more extended rights than those 
 granted by the Union, or embody other stipulations not con- 
 trary to the present Convention. 
 
 Article 16. 
 
 An international oflKce is established, under the name of 
 " Office of the International Union for the Protection of 
 Literary and Artistic Works." 
 
 This office, of which the expenses will be borne by the 
 Administrations of all the countries of the Union, is placed 
 
 See paragraph 4 of Final Protocol, p. 15.
 
 XXll. MUSICAL COPYRIGHT LAW 
 
 under the high authority of the Superior Administration of the 
 Swiss Confederation, and works under its direction. The 
 functions of this office are determined by common accord be- 
 tween the countries oi the Union. 
 
 Akticle 17. 
 
 The present Convention may be submitted to revisions in 
 order to introduce therein amendments calculated to perfect 
 the system of the Union. 
 
 Questions of this kind, as well as those which are of interest 
 to the Union in other respects, will be considered in Con- 
 ferences to be held successively in the countries of the Union 
 by delegates of the said countries. 
 
 It is understood that no alteration in the present Convention 
 shall be binding on the Union except by the unanimous con- 
 sent of the countries composing it. 
 
 Article 18. 
 
 Countries which have not become parties to the present 
 Convention, and which grant by their domestic law the pro- 
 tection of rights secured by this Convention, shall be admitted 
 to accede thereto on request to that effect. 
 
 Such accession shall be notified in writing to the Govern- 
 ment of the Swiss Confederation, who will communicate it to 
 all the other countries of the Union. 
 
 Such accession shall imply full adhesion to all the clauses 
 and admission to all the advantages provided by the present 
 Convention. 
 
 Article 19. 
 
 Countries acceding to the present Convention shall also have 
 the right to accede thereto at any time for their Colonies 
 or foreign possessions. 
 
 They may do this either by a general declaration compre- 
 hending all their Colonies or possessions within the accession, 
 or by specially naming those comprised therein, or by simply 
 indicating those whicla are excluded. 
 
 Article 20. 
 
 The present Convention shall be put in force three months 
 after the exchange of the ratifications, and shall remain in 
 effect for an indefinite period until the termination of a year 
 from the day on which it may have been denounced. 
 
 Such denunciation shall be made to the Government 
 authorised to receive accessions, and shall only be effective 
 as regards the country making it, the Convention remaining 
 in full force and effect for the other countries of the Union.
 
 appendix xxiu. 
 
 Article 21. 
 
 The present Convention shall be ratified, and the ratifications 
 exchanged at Berne, within the space of one year at tlie 
 latest. 
 
 In witness whereof, the respective Plenipotentiaries have 
 signed the same, and have afQxed thei'eto the seal of their 
 arms. 
 
 Done at Berne, the 7th day of September, 1886. 
 
 ADDITIONAL ARTICLE. 
 
 The Plenipotentiaries assembled to sign the Convention con- 
 cerning the creation of an International Union for the pro- 
 tection of literary and artistic works have agreed upon the 
 following Additional Article, which shall be ratified together 
 with the Convention to wdiich it relates : — 
 
 The Convention concluded this day in no wise affects the 
 maintenance of existing conventions between the Contracting 
 States, provided always that such conventions confer on 
 authors, or their lawful repx'esentatives, rights more extended 
 than those secured by the Union, or contaiu other stipulations 
 which are not contrary to the said Convention. 
 
 In witness whereof, the respective Plenipotentiaries have 
 signed the present Additional Article. 
 
 Done at Berne, the 9th day of September, 1886. 
 
 FINAL PROTOCOL. 
 
 (2) As regards Article 9, it is agreed that those countries of 
 the Union whose legislation implicitly includes choiegraphic 
 works amongst dramatico-musical works, expressly admit the 
 former works to the benefits of the Convention concluded this 
 day. 
 
 It is, however, understood that questions which may arise 
 on the application of this clause shall rest within the com- 
 petence of tlie respective tribunals to decide. 
 
 (3) It is understood that the manufacture and sale of instru- 
 ments for the mechanical reproduction of musical airs which 
 are copyright, shall not be considered as constituting an 
 infringement of musical copyright. 
 
 (4) The common agreement alluded to in Article 14 of the 
 Convention is established as follows : — 
 
 The application of the Convention to works which have not 
 fallen into the public domain at the time when it comes into 
 force, shall operate according to the stipulations on this head, 
 which may be contained in special conventions, either existing 
 or to be coucluiled. 
 
 In the absence of such stipulations, between any countries
 
 XXIV. MUSICAL COPYRIGHT LAW 
 
 of the Union, the respective countries shall regulate, each for 
 itself, by its domestic legislation, the manner in which the 
 principle contained in Article 14 is to be applied. 
 
 (1) With reference to the accession of the colonies or foreign 
 possessions provided for by Article 19 of the Convention. 
 
 The Plenipotentiaries of His Catholic Majesty the King of 
 Spain reserve to the Government the power of making known 
 His Majesty's decision at the time of the exchange of 
 ratifications. 
 
 The Plenipotentiary of the French Eepublic states that the 
 accession of his country carries with it that of all the French 
 Colonies. 
 
 The Plenipotentaries of Her Britannic Majesty state that 
 the accession of Great Britain to the Convention for the pro- 
 tection of literary and artistic works comprises the United 
 Kingdom of Great Britain and Ireland, and all the colonies 
 and foreign possessions of Her Britannic Majesty. 
 
 At the same time they reserve to the Government of Her 
 Britannic Majesty the power of announcing at any time the 
 separate denunciation of the Convention by one or several of 
 the following Colonies or possessions, in the manner provided 
 for by Article 20 of the Convention, namely : — 
 
 India, the Dominion of Canada, Newfoundland, the Cape, 
 Natal, New South Wales, Victoria, Queensland, Tasmania, 
 South Australia, Western Australia, and New Zealand. 
 
 OEDER IN COUNCIL GIVING VALIDITY TO THE 
 BERNE CONVENTION. 
 
 At the Court at Windsor, November 28, 1887. 
 
 Convention Whereas the Convention, of which an English translation is 
 itself is prac- set out in the first schedule to this Order, has been concluded 
 ouf, so far between Her Majesty the Queen of the United Kingdom of 
 Sfinoff^r?^ Great Britain and Ireland and the foreign countries named in 
 p. 77 etseq., this Order, with respect to the protection to be given by way 
 wifh'com'-' o^ copyright to the authors of literary and artistic works, 
 ments on And whereas the ratifications of the said Convention were 
 
 questions, exchanged on September 5, one thousand eight hundred and 
 eighty-seven, between Her Majesty the Queen and the Govern- 
 ments of the foreign countries following, that is to say : — 
 
 Belgium, France, Germany, Haiti, Italy, Spain, Switzerland, 
 Tunis. 
 
 And whereas Her Majesty in Council is satisfied that the 
 foreign countries named in tliis Order have made such provi- 
 sions as it appears to Her Majesty expedient to require for 
 the protection of authors of works first produced in Her 
 Majesty's dominions.
 
 APPENDIX XXV. 
 
 Now, therefore, Her Majesty, by and with the advice of 
 her Privy Council, and by virtue of the authority committed 
 to her by the International Copyrij^'ht Acts, 1844 to 1886, 
 doth order, and it is hereby ordered as follows : — 
 
 (1) The Convention, as set forth in the first schedule to 
 this Order, shall as from the commencement of this Order, 
 have full effect throughout Her Majesty's dominions, and all 
 persons are enjoined to observe the same. 
 
 (2) This Order shall extend to the foreign countries follow- 
 ing, that is to say : — 
 
 Belgium, France, Germany, Haiti, Italy, Spain, Switzerland, 
 Tunis. 
 
 And the above countries are in this Order referred to as 
 the foreign countries of the Copyright Union, and these foreign 
 countries, together with Her Majesty's dominions, are in this 
 Order referred to as " the countries of the Copyright Union." 
 
 (3) The author of a literary or artistic work, which on or 
 after the commencement of this Order is first produced in one 
 of the foreign countries of the Copyright Union shall, subject 
 as in this Order, and in the International Copyright Acts, 
 1844 to 1886, mentioned, have as respects that work through- 
 out Her Majesty's dominions the same right of copyright {sic), 
 including any right capable of being conferred by an Order in 
 Council under Section 2 or Section 5 of the International 
 Copyright Act, 1844, or under any other enactment, as if the 
 wrork had been first produced in the United Kingdom, and 
 shall have such rights during the same period. 
 
 Provided that the author of a literary or artistic work shall 
 not have any greater right or longer term of copyright therein 
 than that which he enjoys in the country in which the work 
 is first produced. 
 
 The author of any literary or artistic work first produced 
 before the commencement of this Order shall have the rights 
 and remedies to which he is entitled under Section 6 of the 
 International Copyright Act, 1886. 
 
 (4) The rights conferred by the International Copyright 
 Acts, 1844 to 1886, shall, in the case of a literary or artistic 
 work first produced in one of the foreign countries of the 
 Copyright Union by an author who is not a subject or citizen 
 of any of the said foreign countries, be limited as follows : 
 that is to say, the author shall not be entitled to take legal 
 proceedings in Her Majesty's dominions for protecting any 
 copyright in such work, but the publisher of such work shall, 
 for the purpose of any legal proceedings in Her Majesty's 
 dominions for protecting any copyright in such work, be 
 deemed to be entitled to such copyright as if he were the 
 author, but without prejudice to the rights of such author and 
 publisher as between themselves.
 
 XXVI. MUSICAL COPYRIGHT LAW 
 
 (5) A literary or artistic work first produced simultaneously 
 in two or more countries of the Copyright Union shall be 
 deemed for the purpose of copyright to have been first produced 
 in that one of those countries in which the term of copyright 
 in the work is shortest. 
 
 (6) Section 6 of the International Copyright Act, 1852, 
 shall not apply to any dramatic piece to which protection is 
 extended by virtue of this Order. 
 
 (7) The orders mentioned in the second schedule to this 
 Order are hereby revoked. 
 
 Provided that neither such revocation nor anything else in 
 this Order shall prejudicially affect any right acquired or 
 accrued before the commencement of this Order by virtue of 
 any Order hereby revoked ; and any person entitled to such 
 right shall continue entitled thereto, and to the remedies for 
 the same, in like manner as if the Order had not been made. 
 
 (8) This Order shall be construed as if it formed part of 
 the International Copyright Act, 1886. 
 
 (9) This Order shall come into operation on December 6, 
 one thousand eight hundred and eighty-seven, which day is 
 in this Order referred to as the commencement of this Order. 
 
 And the Lords Commissioners of Her Majesty's Treasury 
 are to give the necessary orders herein accordingly. 
 
 ORDER IN COUNCIL, MARCH 7, 1898. 
 
 (1) The additional Act to the Berne Convention set forth in 
 the Schedule to this Order shall, as from the commencement of 
 this Order have full effect throughout Her Majesty's dominions, 
 and all persons are enjoined to observe the same : — 
 
 (2) This Order shall extend to the foreign countries following, 
 that to say : — 
 
 Germany, Luxembourg, 
 
 Belgium, Monaco, 
 
 Spain, Montenegro, 
 
 France, Switzerland, and 
 
 Italy, Tunis. 
 
 (3) The fourth Article of the hereinbefore recited Order in 
 Council of the twenty-eighth day of November, one thousand 
 eight hundred and eighty-seven, shall as from the commence- 
 ment of this Order cease to apply to the foreign countries to 
 which this Order extends : — 
 
 (4) The hereintofore I'ecited Order in Council of the twenty- 
 eighth day of November, one thousand eight hundred and 
 eighty-seven, shall continue to be of full force and effect, save 
 in so far as the same is varied by this Order ; — 
 
 (5) Nothing contained in this Order shall prejudicially
 
 APPENDIX XXVll. 
 
 affect any right acquired or accrued before the commencement 
 of this Order by virtue of the said Order in Council of the 
 twenty- eighth day of November, one thousand eight hundred 
 and eighty-seven, or otherwise, and any person entitled to such 
 right shall continue entitled thereto, and to the remedies for 
 the same in like manner as if this Order had not been made. 
 
 (6) The author of any literary or artistic work first pro- 
 duced before the commencement of this Order shall have the 
 rights and remedies to which he is entitled under Section 6 of 
 "The International Copyright Act, 1886." 
 
 (7) This Order shall be construed as if it formed part of 
 " The International Copyright Act, 1886." 
 
 (8) This Order shall come into operation on the date hereof 
 which day is in this Order referred to as the commencement 
 of this Order. 
 
 And the Lords Commissioners of Her Majesty's Treasury 
 are to give the necessary order herein accordingly. 
 
 C. L. Peel. 
 
 SCHEDULE. 
 Additional Act. 
 
 The following is an English translation of the Additional 
 Act with the omission of the formal beginning and end : — 
 
 Aeticle I. 
 
 The International Convention of September 9, 1886, is 
 modified as follows : — 
 
 (1) Article II. — The first paragraph of Article II. shall 
 run as follows : — 
 
 " Authors belonging to any one of the countries of the 
 Union, or their lawful representatives, shall enjoy in 
 the other countries for their works, whether unpub- 
 lished, or published for the first time in one of those 
 countries, the rights which the respective laws do 
 now or shall hereafter grant to nationals." 
 A fifth paragraph is added in these terms : — 
 " Posthumous uwrks are included among those to he pro- 
 tected:' 
 
 (2) Article III. — Article III. shall run as follows : — 
 
 " Authors not belonging to one of the countries of the 
 Union, who shall have published or caused to be 
 published for tlio first time their literary or artistic 
 works in a country which is a party to the Union, 
 shall enjoy, in respect of such works, the protection 
 accorded by the Berne Convention, and by the present 
 Additional Act."
 
 XXVlll. MUSICAL COPYRIGHT LAW 
 
 (3) Article V. — The first paragraph of Article V. shall run 
 as follows : — 
 
 " Authors belonging to any one of the countries of the 
 Union, or their lawful representatives, shall enjoy in 
 the other countries the exclusive right of making or 
 authorising the translation of their works clurhig the 
 entire period of their right over the original work. 
 Nevertheless, the exclusive right of translation shall 
 cease to exist if the author shall not have availed 
 himself of it, during a period of ten years from the 
 date of the first publication of the original work, by 
 publishing or causing to be pubhshed in one of the 
 countries of the Union, a translation in the language 
 for which protection is to be claimed." 
 
 (5) Article XII. — Article XII. shall run as follows : — 
 
 " Pirated works may be seized by the competent authorities 
 of the countries of the Union where the original work 
 is entitled to legal protection. 
 
 " The seizure shall take place conformably to the domestic 
 law of each State." 
 
 (6) Article XX. — The second paragraph of Article XX. 
 shall run as follows : — 
 
 " Such denunciation shall be made to the Government of 
 the Swiss Confederation. It shall only be effective as 
 regards the country making it, the Convention remain- 
 ing in full force and effect for the other countries of 
 the Union." 
 
 Article II. 
 
 The Final Protocol annexed to the Convention of September 
 9, 1896, is modified as follows : — 
 
 (2) No. 4. — This clause shall run as follows : — 
 
 " The common agreement contemplated in Article XIV. of 
 the Convention is established as follows : — 
 
 " The application of the Berne Convention and of the 
 present Additional Act to works which have not fallen 
 into the public domain within the country of origin 
 at the time when these engagements come into force, 
 shall operate according to such stipulations on this 
 bead as may be contained in special conventions, 
 either actually existing or to be concluded hereafter. 
 
 " In the absence of such stipulations between any of the 
 countries of the Union, the respective countries shall 
 regulate, each for itself, by its domestic legislation, 
 the manner in which the principle contained in 
 Article XIV. is to bo applied. 
 
 "The stipulations of Article XIV. of the Berne Conven-
 
 APPENDIX XXIX. 
 
 tion and of the present clause of the Final Protocol 
 shall apply equally to the exclusive right of transla- 
 tion, in so far as such right is established by the 
 present Additional Act. 
 " The temporary stipulations noted above shall be applic- 
 able to countries which may hereafter accede to the 
 Union." 
 
 Article III. 
 
 The couutries of the Union which are not parties to the 
 present Additional Act, shall at any time bo allowed to accede 
 thereto on their request to that effect. This stipulation shall 
 apply equally to countries which may hereafter accede to the 
 Convention of September 9, 1886. It will suffice for this pur- 
 pose that such accession should be notified in writing to the 
 Swiss Federal Council, who shall in turn communicate it to 
 the other Governments. 
 
 Article IV. 
 
 The present Additional Act shall have the same force and 
 duration as the Convention of September 9, 1886. 
 
 It shall be ratified, and the ratifications shall be exchanged 
 at Paris, in the manner adopted in the case of that Convention, 
 as soon as possible, and within the space of one year at the 
 latest. 
 
 It shall come into force as regards those countries which 
 shall have ratified it three months after such exchange of 
 ratifications. 
 
 CONVENTION BETWEEN GREAT BRITAIN AND 
 AUSTRIA-HUNGARY FOR THE ESTABLISHMENT 
 OF INTERNATIONAL COPYRIGHT. 
 
 Signed at Vienna, April 24, 1893. 
 
 [Batifications exchanged at Vienna, April 14, 1894.] 
 
 [A Hungarian version was also attached to the Convention 
 
 as signed.] 
 
 Article I. 
 
 Authors of literary or artistic works and their legal 
 representatives, including publishers, shall enjoy reciprocally, 
 in the dominions of the High Contracting Parties, the advan- 
 tages which are, or may be, granted by law there for the 
 protection of works of literature or art. 
 
 Consequently, authors of literary or artistic works which 
 have been first published in the dominions of one of the High 
 Contracting Parties, as well as their legal representatives, 
 
 11
 
 XXX. MUSICAL COPYRIGHT LAW 
 
 shall have in the dominions of the other High Contracting 
 Party the same protection and the same legal remedy against 
 all infringement Of their rights as if the work had been first 
 published in the country where the infringement may have 
 taken place. 
 
 In the same manner, the authors of literary or artistic 
 works, and their legal representatives, who are subjects of 
 one of the High Contracting Parties, or who reside within its 
 dominions, shall in the dominions of the other Contracting 
 Party enjoy the same protection and the same legal remedies 
 against all infringements of their rights as though they were 
 subjects of or residents in the State in which the infringement 
 may have taken place. 
 
 These advantages shall only be reciprocally guaranteed to 
 authors and their legal representatives when the work in 
 question is also protected by the laws of the State where the 
 work was first published, and the duration of protection in 
 the other country shall not exceed that which is granted to 
 authors and their legal representatives in the country whei'S 
 the work was first pubHshed. 
 
 Akticle II. 
 
 The right of translation forming part of the copyright, the 
 protection of the right of translation is assured under the 
 conditions laid down by this Convention. If ten years after 
 the expiry of the year in which a work to be protected in 
 Her Majesty's dominions on the basis of this Convention has 
 appeared, no translation in English has been published the 
 right of translating the work into English shall no longer 
 within those dominions exclusively beloug to the author. 
 
 Article III. 
 
 Authorised translations are protected as original works. 
 They consequently enjoy the full protection granted by this 
 Convention against the unauthorised reproduction of original 
 works. 
 
 It is understood that in the case of a work for which the 
 translating right has fallen into the public domain, the trans- 
 lator cannot oppose the translation of the same work by other 
 writers. 
 
 Article IV. 
 
 The expression "literary or artistic works" comprehends 
 books, pamphlets, and all other writings ; dramatic or 
 dramatico-musical works, musical compositions, with or with- 
 out words ; works of design, painting, sculpture, and engrav- 
 ing, lithographs, illustrations, geographical charts, plans, 
 sketches, and plastic works relating to geography, topography,
 
 APPENDIX XXXI. 
 
 architecture, or science ia general ; in fact, every production 
 whatsoever in the literary, scientific, or artistic domain which 
 can be published by any mode of impression or reproduction. 
 
 Article V. 
 
 In the British Empire, and in the Kingdoms and States 
 represented in the Austrian Reichsratb, the enjoyment of the 
 rights secured by the present Convention is subject only to 
 the accomplishment of the conditions and formalities pre- 
 scribed by the law of that State in which the work is hrst 
 published ; and no further formalities or conditions shall be 
 rcquh-ed in the other country. 
 
 Consequently, it shall not be necessary that a work which 
 has obtained legal protection in one country should be 
 registered, or copies thereof deposited in the other country, 
 in order that the remedies against infringement may be 
 obtained which are granted in the other country to works 
 first published there. 
 
 In the dominions of the Hungarian Crown the enjoyment 
 of these rights is subject, however, to the accomplishment of 
 the conditions and formalities prescribed by the Laws and 
 Regulations both of Great Britain and of Hungary. 
 
 Article VI. 
 
 In order that the authors of works protected by the present 
 Convention shall, in the absence of proof to the contrary, be 
 considered as such, and be, consequently, admitted to institute 
 proceedings in respect of the infringement of copyright before 
 the Courts of the other State, it will suffice that their name be 
 indicated on the work in the accustomed manner. 
 
 The Tribunals may, however, in cases of doubt, require the 
 production of such further evidence as may be I'equired by the 
 Laws of the respective countries. 
 
 For anonymous or pseudonymous works, the publisher 
 whose name is indicated on the work is entitled to protect 
 the rights belonging to the author. He is, without other 
 proof, reputed the legal representative of the anonymous or 
 pseudonymous author, until the latter or his legal repre- 
 sentative has declared and proved his rights. 
 
 Article VII. 
 
 The provisions of the present Convention cannot in any way 
 derogate from the right of each of the High Contracting Parties 
 to control, or to prohibit by measures of domestic legislation 
 or police, the circulation, representation, exhibition, or sale of 
 any work or production. 
 
 Each of the High Contracting Parties reserves also its right
 
 XXXll. MUSICAL COPYRIGHT LAW 
 
 to prohibit the importation into its own territory of works 
 which, according to its internal Laws, or to the stipulations 
 of treaties with other States, are or may be declared to be 
 illicit reproductions. 
 
 Article VIII. 
 
 The provisions of the present Convention shall be applied to 
 literature or artistic works produced prior to the date of its 
 coming into effect, subject, however, to the limitations pre- 
 scribed by the following regulations : — 
 
 (a) In the Austro-Hungarian Monarchy — 
 
 Copies completed before the coming into force of the present 
 Convention, the production of w^hich has been hitherto allowed, 
 can also be circulated in future. 
 
 In the same manner, appliances for the reproduction of 
 works, such as stereotypes, woodblocks, and engraved plates 
 of every description, such as lithographers' stones, if their 
 production has not hitherto been prohibited may continue to 
 be used during a period of four years from the coming into 
 force of the present Convention. 
 
 The distribution of such copies, and the use of the said 
 appliances, is, however, only permitted if an inventory of the 
 said copies and appliances is taken by the Government in 
 question, in consequence of an application of the interested 
 party, wnthin three months from the coming into force of the 
 present Convention, and if these copies and appliances are 
 marked with a special stamp. 
 
 Dramatic and dramatico-musical works, or musical com- 
 positions legally performed before the coming into force of 
 the present Convention, can also be performed m the future. 
 
 (b) In the United Kingdom of Great Britain and Ireland — 
 The author and publisher of any literary or artistic work 
 
 first produced before the date at which this Convention comes 
 into effect shall be entitled to all legal remedies against in- 
 fringement ; provided that where any person has, before the 
 date of the publication of the Order in Council putting this 
 Convention into effect, lawfully produced any work in the 
 United Kingdom, any rights or interests arising from or in 
 connection with such production, which arc subsisting and 
 valuable at the said date, shall not be diminished or prejudiced. 
 
 Akticle IX. 
 
 The provisions of the present Convention shall apply to all 
 the colonies and foi'eign possessions of Her Britannic Majest)^ 
 excepting to those hereinafter named, that is to say, except 
 to—
 
 APPENDIX XXXUl. 
 
 India. Victoria. 
 
 The Dominion of Canada. Queensland. 
 
 Newfoundland. Tasmania. 
 
 The Cape. South Australia. 
 
 Natal. Western Australia. 
 
 New South Wales. New Zealand. 
 
 Provided always that the provisions of the present Conven- 
 tions shall apply to any of the above-named colonies or foreign 
 possessions on whose behalf notice to that effect shall have 
 been given by Her Britannic Majesty's Representative at the 
 Court of His Imperial and Royal Apostolic Majesty within 
 two years from the date of the exchange of ratifications of the 
 present Convention. 
 
 Article X. 
 
 The present Convention shall remain in force for ten years 
 from the day on which the ratifications are exchanged ; and 
 in case neither of the two High Contracting Parties shall have 
 given notice twelve months before the expiration of tiie said 
 period of ten years of their intention of terminating the present 
 Convention, it shall remain in force until the expiration of one 
 year from the day on which either of the High Contracting 
 Parties shall have given such notice. 
 
 Her Britannic Majesty's Government shall also have the 
 right to denounce the Convention in the same manner, on 
 behalf of any of the colonies or foreign possessions mentioned 
 in Article IX., separately. 
 
 Article XI. 
 
 The present Convention shall be ratified, and the ratifica- 
 tions shall be exchanged at Vienna as soon as possible. It 
 shall come into effect ten days after its publication in con- 
 formity with the forms prescribed by the Laws of the High 
 Contracting Parties respectively. 
 
 In witness whereof, the respective Plenipotentiaries have 
 signed this Convention, and have hereunto affixed their seals. 
 
 Done at Vienna, April 24, in the year of our Lord one 
 thousand eight hundred and ninety-three.
 
 XXXIV. 
 
 MUSICAL COPYRIGHT LAW 
 
 APPENDIX D. 
 
 Begisters of 
 Copyrights, 
 
 Penalty for 
 printing 
 MSS. with- 
 out owner's 
 consent. 
 
 "Who may 
 have copy- 
 right. 
 
 Condition of 
 
 obtaining 
 
 copyright. 
 
 Exception. 
 
 CANADA. 
 
 An Act eespecting Copyright. 
 
 (1) The Minister of Agriculture shall cause to be kept in 
 his office books to be called the "Eegisters of Copyrights," 
 in which proprietors of literary, scientific, and artistic works 
 or compositions may have the same registered in accordance 
 with the provisions of this Act. 
 
 (3) If any person prints or publishes, or causes to be printed 
 or published, any manuscript whatever, the said manuscript 
 having not yet been printed in Canada or elsew^here, wathout 
 the consent of the author or legal proprietor first obtained, 
 such person shall be liable to the author or proprietor for all 
 damages occasioned by such publication, to be recovered in 
 any court of competent jurisdiction. 
 
 (4) Any person domiciled in Canada, or in any part of the 
 British possessions, or being a citizen of any country having 
 an international copyright treaty with the United Kingdom, 
 who is the author of any book, map, chart, or musical com- 
 position, or of any original painting, drawing, statue, 
 sculpture, or photograph, or who invents, designs, etches, 
 engraves, or causes to be engraved, etched, or made fi'om his 
 own design, any print or engraving, and the legal represen- 
 tatives of such person, shall have the sole right and liberty 
 of printing, reprinting, publishing, reproducing and vending 
 such literary, scientific, or artistic works or compositions, in 
 whole or in part, and of allowing translations to be printed 
 or reprinted and sold, of such literary works from one lan- 
 guage into other languages, for the term of twenty-eight 
 years from the time of recording the copyright thereof in the 
 manner hereinafter directed ; 
 
 (ii.) The condition for obtaining such copyright shall 
 be that the said literary, scientific, or artistic works be 
 printed and published, or reprinted or repubhshed in 
 Canada, or in the case of works of art that it (sic) be pro- 
 duced or reproduced in Canada, whether they be so pub- 
 lished or produced for the first time or contemporaneously 
 with or subsequently to publication or production else- 
 where ; provided tliat in no case the exclusive privilege 
 in Canada shall continue to exist after it has expired 
 anywhere else. 
 
 (iii.) No immoral, or licentious, or irreligious, or 
 treasonable, or seditious, literary, scientific, or artistic 
 work shall be the legitimate subject of such registration 
 or copyiight.
 
 APPENDIX XXXV. 
 
 (5) If at the expiration of the afoi'esaid term of twentv-eicht Renewal of 
 years, such author, or any of the authors when the work has 
 
 been originally composed and made by more than one person, 
 be still living, or being dead has left a widow, or a child, or 
 children living, the same exclusive right shall be continued to 
 such author, or, if dead, then to such widow and child or 
 children (as the case may be) for the further term of fourteen 
 years ; but in such case within one year after the expiration 
 of the lirst term the title of the work secured shall be a second 
 time recorded, and all other regulations herein required to be 
 observed in regard to original copyrights shall be compiled 
 with in respect to such renewed copyright. 
 
 (6) In all cases of renewal of copyright under this Act the Record of 
 author or proprietor shall, within two months from the date be^pub^ *° 
 of such renewal, cause a copy of the record thereof to be li^iied. 
 published once in the Canada Gazette. 
 
 (7) No person shall be entitled to the benefit of this Act Deposit of 
 unless he has deposited in the office of the Minister of in the^'^ms- 
 
 Agriculture two copies of such book, map, chart, viusical,^^^°^' -^sri- 
 
 ■,• 1,1 • i. i. • J • culture's 
 
 covipositioUy pliotograph, print, cut, or engiavmg, and in case office. 
 
 of paintings, drawings, statuary, and sculpture, unless he has 
 
 furnished a written description of such works of art, and the 
 
 Minister of Agriculture shall cause the copyright of the same 
 
 to be recorded forthwith in a book to be kept for that purpose, 
 
 in the manner adopted by the Minister of Agriculture, or 
 
 prescribed by the rules and forms which may be made from 
 
 time to time as hereinbefore provided. 
 
 (8) The Minister of Agriculture shall cause one of the two O^e to be 
 copies of such book, map, chart, musical composition, photo- Library of 
 graph, print, cut, or engraving aforesaid, to be deposited in the Parliament. 
 Library of the Parliament of Canada. 
 
 (9) No person shall be entitled to the benefit of this Act, Notice of 
 unless he gives information of the copyright being secured, to appear*in 
 by causing to be inserted in the several copies of every edition work, 
 published during the term secured, on the title page, or the 
 
 page immediately following, if it be a book, or if a map, chart, 
 musical composition, print, cut, engraving, or photograph, by 
 causing to be impressed on the face thereof, or if a volume of 
 maps, charts, music, engravings, or photographs, upon the 
 title page or frontispiece thereof, the following words, that is 
 to say : " Entered according to Act of Parliament of Canada, 
 in the year by A. B., in the ollice of the Minister of 
 
 Agriculture." But as regards paintings, drawings, statuary, Exception, 
 and sculptures, the signature of the artist shall be deemed a 
 sufficient notice of such proprietorship. 
 
 (10) Pending the publication or republication in Canada of 
 a literary, scientific, or artistic work, the author, or his legal
 
 XXXVl. MUSICAL COPYRIGHT LAW 
 
 Interim representatives or assigns, may obtain an interim copyright by 
 for'o"^ depositing in the office of the Minister of Agriculture a copy 
 
 month from of the title, or a designation of such work intended for pub- 
 original pub- lication or republication in Canada, the said title or desigua- 
 where^nfay^ tion to be registered in an interim copyright register in the 
 be obtained said office, to secure to the author aforesaid, or his legal repre- 
 ing.^&c'.^ ^^ sentatives or assigns, the exclusive rights recognised by this 
 Act, previous to publication or republication in Canada ; the 
 said interim registration, however, not to endure for more 
 than one month from the date of the original publication else- 
 where, within which period the work shall be printed or re- 
 printed and published in Canada, 
 reeistratio (^^*) ^^ ^^^ cases of interim registration under this 
 
 to be pub- Act, the author or proprietor shall cause notice of such 
 
 iished. registration to be inserted once in the Canada Gazette. 
 
 Penalty for (11) If any other person after the wi^erm registration of the 
 menTof title of any book according to this Act within the term herein 
 
 copyright of limited, or after the copyright is secured, and for the term or 
 terms of its duration, prints, publishes, or reprints or repub- 
 lishes, or imports, or causes to be so printed, published, or 
 imported, any copy or any translation of such book without the 
 consent of the person legally entitled to the copyright thereof 
 first had and obtained by assignment, or knowing tbe same to 
 be so printed or imported publishes, sells, or exposes for sale, 
 or causes to be published, sold, or exposed for sale, any copy 
 of such book without such consent, such offender shall forfeit 
 every copy of such book to the person then legally entitled to 
 the copyright thereof ; and shall forfeit and pay for every such 
 copy which may be found in his possession, either printed or 
 printing (s/c), published, imported, or exposed for sale, contrary 
 to the intent of this Act, such sum not being less than ten 
 cents, nor more than one dollar as the court shall determine ; of 
 which penalty one moiety shall be to the use of Her Majesty, 
 and the other to the legal owner of such copyright, and such 
 penalty may be recovered in any court of competent juris- 
 diction.* 
 Or of a (13) If any person, after the recording of any print, cut, or 
 
 print, &c. engraving, map, chart, musical composition, or photograph, 
 according to the provisions of this Act, within the term or 
 terms limited by this Act, engraves, etches, or works, sells or 
 copies, or causes to be engraved, etched, or copied, made or 
 sold, either in the whole or by varying, adding to, or dimin- 
 ishing the main design with intent to evade the law, or prints, 
 or reprints, or imports for sale, or causes to be so printed or 
 imported for sale, any such map, chart, musical comjoosition, 
 print, cut, or engraving, or any part thereof, without the con- 
 sent of the proprietor or proprietors of the copyright thereof, 
 
 * Section 12, 14 and 20 have no bearing on music.
 
 APPENDIX XXXVll. 
 
 first obtained as aforesaid, or knowing the same to be so printed 
 or imported without such consent, publishes, sells, or exposes 
 for sale, or in any manner disposes of any such map, chart, 
 musical composition, engraving, cut, photograph, or print with- 
 out such consent as aforesaid, such offender or offenders shall 
 forfeit the plate or plates on which such map, chart, musical 
 co77ipositio7i, engraving, cut, photograph, or prmt has been 
 copied, and also every sheet thereof so copied or printed as 
 aforesaid, to the proprietor or proprietors of the copyright 
 thereof, and shall further forfeit for every sheet of such map, 
 musical composition, print, cut, or engraving which may be 
 found in his or their possession, printed or published or exposed 
 for sale contrary to the true intent and meaning of this Act, 
 such sum not being less than ten cents nor more than one 
 dollar, as the Court shall determine ; and one moiety of such 
 forfeiture shall go to the proprietor or proprietors, and the 
 other moiety to the use of Her Majesty, and such forfeiture 
 may be recovered in any court of competent jurisdiction. 
 
 (15) Works of which the copyright has been granted and is Conditions 
 subsisting in the United Kingdom, and copyright of which is canadian.^^^ 
 not secured or subsisting in Canada under any Canadian or copyright 
 
 . lOr rsiDriiits 
 
 Provincial Act, shall upon being printed and published or at any time, 
 reprinted and republished in Canada, be entitled to copyright 
 under this Act ; but nothing in this Act shall be held to pro- 
 hibit the importation from the United Kingdom of copies of 
 such works legally printed there. 
 
 (ii.) In the case of the reprinting of any such copyright Jf ^°^f ^ 
 work subsequent to its publication in the United Kingdom, reprints 
 any person who may have, previous {sic) to the date of be^°e''r^gis- 
 entry of such work upon the registers of copyright, tration of 
 imported any foreign reprints, shall have the privilege ^°^^^^^ 
 of disposing of such reprints by sale or otherwise, the 
 burden of proof, however, in such a case will lie with 
 such person to establish the extent and regularity of the 
 transaction. 
 
 (16) Whenever the author of a literary, scientific, or artistic Copyright 
 work or composition which may be the subject of copyright fl-anted to 
 has executed the same for another person, or has sold the same assignee of 
 to another person for due consideration, such author shall not copyright, 
 be entitled to obtain or retain the proprietorship of such copy- 
 right, which is by the said transaction virtually transferred 
 
 to the purchaser, who may avail himself of such privilege, 
 unless a reserve of the said privilege is specially made by the 
 author or artist in a deed duly executed. 
 
 (17) If any person, not having legally acquired the copyright Penalty for 
 of a literary, scientific, or artistic work, inserts in any copy assumption 
 thereof printed, produced, reproduced, or imported, or iuj. oi copyright, 
 presses on any such copy that the same hath been entered
 
 xxxvin. 
 
 MUSICAL COPYRIGHT LAW 
 
 Penalty for 
 non-publica- 
 tion after 
 interim 
 registration. 
 
 Copyright 
 assignaole. 
 
 Conflicting 
 claims in 
 respect of 
 copyright to 
 be settled 
 before a 
 Court. 
 
 Copies or 
 extracts to 
 be evidence, 
 
 Provision 
 for the case 
 of a copy- 
 righted 
 •work being 
 out of print. 
 
 according to this Act, or ^Yords purporting to assert the exis- 
 tence of a Canadian Copyright in relation thereto, every person 
 so offending shall incur a penalty not exceeding three hundred 
 dollars (one moiety thereof shall be paid to the person who 
 sues for the same, and the other moiety to the use of Her 
 Majesty), to be recovered in any court of competent juris- 
 diction. 
 
 (2) If any person causes any work to be inserted in 
 the Eegister of Interim Copyright, and fails to print and 
 publish or i-eprint and republish the same within the 
 time prescribed, he shall incur a penalty not exceeding 
 one hundred dollars (one moiety whereof shall bo paid to 
 the person who sueth [sic) for the same, and the other 
 moiety to the use of Her Majesty), to be recovered in any 
 court of competent jurisdiction. 
 
 (18) The right of an author of a literary, scientific, or 
 artistic work to obtain a copyright, and the copyright when 
 obtained, shall be assignable in law, either as to the whole 
 interest or any part thereof, by an instrument in writing made 
 in duplicate, and to be recorded in the office of the Minister of 
 Agriculture, on production of both duplicates and payment of 
 the fee hereinafter provided. One of the duplicates shall be 
 retained in the office of the Minister of Agriculture, and the 
 other returned, with the certificate of registration, to the party 
 depositing it. 
 
 (19) In case of any person making application to register 
 as his own the copyright of a literary, scientific, or artistic 
 work already registered in another person's name, or in case 
 of simultaneous conflicting applications, or of an application 
 made by any person other than the person entered as pro- 
 prietor of a registered copyright, to cancel the said copyright, 
 the party so applying shall be notified that the question is to 
 be settled before a court of competent jurisdiction, and no 
 further proceedings shall be had concerning the subject before 
 a judgment is produced, maintaining, cancelling, or otherwise 
 setthng the matter; and this registration, or cancellation, or 
 adjustment of the said right shall then be made by the 
 Minister of Agriculture in accordance with such decision. 
 
 (21) All copies or extracts certified from the otlice of the 
 Minister of Agriculture shall be received in evidence without 
 further proof, and without production of the originals. 
 
 (22) Should a work copyrighted in Canada become out of 
 print, a complaint may be lodged by any person with tbe 
 Minister of Agriculture, who, on the fact being ascertained to 
 his satisfaction, shall notify the copyright owner of the com- 
 plaint and of the fact ; and if, within a reasonable time, no 
 remedy is applied {sic) by such ow^ner, the Minister of Agricul- 
 ture may grant a licence to any person to publish a new edition
 
 APPENDIX XXXIX. 
 
 or to import the work, specifying the number of copies, and 
 the royalty to be paid on each to the copyright owner. 
 
 (23) The appUcation for the registration of an i'^terim ReRistra- ^^ 
 copyright, of a temporary copyright, and of a copyright may through an 
 be made in the name of the author or of his legal representa- afs^umpUon^ 
 tive by any person purporting to be the agent of the said of agency- 
 author, and any fraudulent assumption of such authority shall p^"^^ 
 
 be a misdemeanour and shall be punished by fine and im- 
 prisonment accordingly ; and any damage caused by a fraudu- 
 lent or an erroneous assumption of such authority shall be 
 recoverable before any court of competent jurisdiction. 
 
 (24) If any person shall wilfully make or cause to be made Penalty for 
 
 ^ .', / . ,1 ■ ^ 1 1 f . 1 T\T- • i. f \ ■ 1 making false 
 
 any false entry in the register books of the Mmister or Agricui- entries, &c. 
 
 ture, or shall wilfully produce or cause to be tendered in 
 
 evidence any paper falsely purporting to be a copy of an entry 
 
 in the said books, he shall be guilty of a misdemeanour, and 
 
 shall be punished accordingly. 
 
 (25) If a book be published anonymously it shall be sufficient Anonymous 
 
 to enter it in the name of the first publisher thereof, either be°ent™ed 
 
 on behalf of the unnamed author or on behalf of such first ip name of 
 
 , ,. , ., , first pub- 
 
 publisher, as tlie case may be. lisher. 
 
 (26) It shall not be requisite to deliver any printed copy of second and 
 the second or of any subsequent edition of any book or books subsequent 
 unless the same shall contain very important alterations or ^^^^tio^s. 
 additions. 
 
 (27) No act or prosecution for the recovery of any penalty Limitation 
 under this Act shall be commenced more than two years after °^ actions, 
 the cause of action arose. 
 
 The following fees shall be payable to the Minister of Fees payable 
 Agriculture before an application for any of the pui'poses here- Act. 
 inafter mentioned shall be entertained ; that is to say, 
 
 On registering a copyright 
 
 On registering an interim copyright . . 
 
 On registering a temporary copyright 
 
 On recording an assignment . . 
 
 On certified copy of registration 
 
 On registering any decision of a Court of Justice for every 
 
 folio 50 
 
 On office copies of documents not above mentioned, the 
 following charges shall be made : — 
 
 Dol. c. 
 
 For every single or first folio certified copy. . . . . . 50 
 
 For every subsequent 100 words (fractions from and 
 under 50 being not counted, and over 50 being counted 
 for 100) 25 
 
 (2) The said fees shall be full (sic) of all service performed 
 under this Act by the Minister of Agriculture, or by any person 
 employed by him in pursuance of this Act. 
 
 Dol. 
 
 c. 
 
 .. 1 
 
 00 
 
 .. 
 
 50 
 
 .. 
 
 50 
 
 .. 1 
 
 00 
 
 .. 
 
 50
 
 xl. 
 
 MUSICAL COPYRIGHT LAW 
 
 Repeal of 
 
 inconsistent 
 
 Acts. 
 
 Unexpired 
 copyrights 
 to continue 
 unimpaired. 
 
 Short title. 
 
 (3) All fees received under this Act shall be paid oyer to 
 the Eeceiver- General and form part of the Consolidated 
 Revenue Fund of Canada. No fees shall be made the subject 
 of exemption in favour of any person, and no fee exacted by 
 this Act, once paid, shall be returned to the person who 
 paid it. 
 
 (28) "The Copyright Act of 1868," being the Act tbn-ty- 
 first Victoria, chapter fifty-four, and all other Acts or parts of 
 Acts inconsistent with the provisions of this Act, are hereby 
 repealed, subject to the provisions of the next following 
 section. 
 
 (29) All copyrights heretofore acquired under the Acts or 
 parts of Acts repealed shall, in respect of the unexpired terms 
 thereof, continue unimpaired, and shall have the same force 
 and effect as regards the province or provinces to which they 
 now extend, and shall be assignable and renewable, and all 
 penalties and forfeitures incurred and to be incurred under 
 the same may be sued for and enforced, and all prosecutions 
 commenced before the passing of this Act for any such 
 penalties or forfeitures already incurred, may be continued and 
 completed as if such Acts were not repealed. 
 
 (30) In citing this Act it shall be sufficient to call it " The 
 Cop>Tigbt Act of 1875." 
 
 This Statute is copied from the collection of Colonial 
 Statutes made by Mr. F. Daldy for the Copyright Association 
 in 1889. 
 
 An Act to give effect to an Act of the ParHament of the 
 Dominion of Canada respecting Copyright. 
 
 [August 2, 1875.] 
 
 WHEEEAS by an Order of Her Majesty in Council, dated 
 July 7, 1868, it was ordered that all prohibitions contained 
 in Acts of the Imperial Parliament against the importing into 
 the Province of Canada, or against the selling, letting out_ to 
 hire, exposing for sale or hire, or possessing therein foreign 
 reprints of books first composed, written, printed or published 
 in the United Kingdom, and entitled to copyright therein, 
 should be suspended so far as regarded Canada : 
 
 And whereas the Senate and House of Commons of Canada 
 did, in the second session of the third Parliament of the 
 Dominion of Canada, held in the thirty-eighth year of Her 
 Majesty's reign, pass a Bill intitled " An Act respecting Copy- 
 he°/e1nbefore rights," which Bill has been reserved by the Governor- 
 stated. General for the signification of Her Majesty's pleasure 
 thereon : 
 
 And whereas by the said reserved Bill provision is made, 
 subject to such conditions as in the said Bill are mentioned, 
 
 This Bill 
 passed into 
 law in the 
 words last
 
 APPENDIX xli. 
 
 for secui-ing in Canada the rights of authors in respect of 
 matters of copyright, and for prohibiting the importation into 
 Canada of any work for which copyright under the said re- 
 served Bill has been secured ; and whereas doubts have arisen 
 whether the said reserved Bill may not be repugnant to the 
 said Order in Council, and it is expedient to remove such 
 doubts and to confirm the said Bill : 
 
 Be it enacted by the Queen's most Excellent Majesty, by 
 and with the advice and consent of the Lords Spiritual and 
 Temporal, and Commons, in this present Parliament 
 assembled, and by the authority of the same as follows : 
 if (1) This Act may be cited for all purposes as " The Canada Short title 
 Copyright Act, 1875." °^ ^°*- 
 
 (2) In the construction of this Act the word "book" and I'efinition 
 " copyright " shall have respectively the same meaning as in 
 
 the Act of the fifth and sixth years of Her Majesty's reign, 
 chapter forty-five, intituled " An Act to amend the Law of 
 Copyright." 
 
 (3) It shall be lawful for Her Majesty in Council to assent Her Majesty 
 to the said reserved Bill, as contained in the Schedule to this to the Bill 
 Act annexed, and if Her Majesty shall be pleased to signify ^^ ■°^®^^^®- 
 Her assent thereto, the said Bill shall come into operation at 
 
 such time and such manner as Her Majesty may by Order in 
 Council direct ; anything in the Act of the twenty-eighth and 
 twenty-ninth years of the reign of Her Majesty, chapter 
 ninety-three, or in any other Act to the contrary notwith- 
 standing. 
 
 (4) Where any book in which, at the time when the said Colonial 
 reserved Bill comes into operation, there is copyright in the no^^o be 
 United Kingdom, or any book in which thereafter there shall -^to^unu d 
 be such copyright, becomes entitled to copyright in Canada in Kingdom, 
 pursuance of the provisions of the said reserved Bill, it shall 
 
 be unlawful for any person not being the ownei', in the United 
 Kingdom, of the copyright in such book, or some person 
 authorised by him, to import into the United Kingdom any 
 copies of such book reprinted and republished in Canada ; and 
 for the purpose of such importation the seventeenth section of 
 the said Act of the fifth and sixth years of the reign of Her 
 Majesty, chapter forty-five, shall apply to all such books in 
 the same manner as if they had been reprinted out of the 
 British Dominions. 
 
 (5) The said Order in Council, dated the seventh day of July, Order in 
 one thousand eight hundred and sixty-eight, shall continue in jSiy^7,^i868 
 force so far as relates to books which are not entitled to copy- 1° ^;ontinue * 
 right for the time being in pursuance of the said reserved ject to thu 
 Bill. ^°*- 
 
 Copied from the collection of Statutes pubhshed by the 
 Copyright Association in 1889.
 
 xlii. MUSICAL COPYRIGHT LATV 
 
 APPENDIX E. 
 
 INDIA. 
 
 Act No. 20 of 1847. 
 
 Passed by the Right Honourable the Governor-General of 
 
 India, in Council, on December 18, 1847. 
 An Act for the Encouragement of Learning in the Territories 
 
 subject to the Government of the East India Company, 
 
 by defining and providing for the enforcement of the right 
 
 called copyright therein. 
 
 WHEEEAS doubts may exist whether the right called 
 copyright can be enforced by the Common Law of England 
 in those parts of the territories subject to the Government of 
 the East India Company into which the Common Law of 
 England has been introduced. 
 
 And whereas doubts may exist whether the said right can be 
 enforced by virbue of the principles of equity and good con- 
 science in the other parts of the territories subject to the 
 Government of the East India Company. 
 
 And whereas, for the encouragement of learning, it is desir- 
 able that the existence of the said right should be placed 
 beyond doubt, and that the said right should be made capable 
 of easy enforcement in every part of the said territories. 
 
 And whereas it is doubtful whether the Act of Parliament 
 5 and 6 Vict., c. 45, entitled "An Act to Amend the Law of 
 Copyright," although such Act extend to every part of the 
 British dominions, has made appropriate and sufficient pro- 
 vision for the enforcement in every part of the said territories 
 subject to the Government of the East India Company of the 
 said right by proprietors thereof ; and whether the said Act of 
 Parliament has made provision for the enforcement of the said 
 right by or against any persons not being subject to the 
 jurisdiction of the Courts established by Her Majesty's 
 Charter. 
 
 I. It is, therefore hereby enacted, that the copyright in 
 every book published in the lifetime of its author within the 
 said territories after the passing of the Act of Parliament 3 and 
 4 Wm. IV., c. 85, entitled, " An Act for Effecting an Arrange- 
 ment with the East India Company, and for the better Govern- 
 ment of His Majesty's Indian Territories till the 30th day of 
 April, 1854," shall endure for the natural life of such author, 
 and for the further term of seven years commencing at the 
 time of his death, and shall be the property of such author 
 and his assigns. Provided always, tliat if the said term of
 
 APPENDIX xliii. 
 
 seven years shall expire before the end of forty-two years from 
 the publication of such book, the copyright shall in that case 
 endure for such period of forty-two years ; and that the copy- 
 right in every book published after the death of its author and 
 after the passing of the Act of Parliament last aforesaid shall 
 endure for the term of forty-two years from the first publication 
 thereof ; and shall be the property of the proprietor of the 
 author's manuscript from which such book shall be first 
 published, and his assigns. 
 
 II. And whereas it is expedient to provide against the sup- 
 pression of books of importance to the public. It is enacted, 
 and it shall be lawful for the Governor-General in Council, 
 on complaint made to them that the proprietor of the copy- 
 right in any book published after the passing of this Act 
 within the said territories has, after the death of its author, 
 refused to republish or to allow the republication of the same, 
 and that by reason of such refusal such book may be with- 
 held from the public, to grant a licence to such complainant 
 to publish such book, in such manner and subject to such 
 conditions as they may think fit ; and it shall be lawful for 
 such conplainant to publish such book according to such 
 licence. 
 
 III.^ And it is hereby enacted, that a Book of Eegistry 
 wherein may be registered, as hereinafter enacted, the pro- 
 prietorship in the copyright of books and assignments thereof, 
 and licences affecting such copyright, shall be kept in the 
 ofiice of the Secretary to the Government of India for the 
 Home Department, and shall at all convenient times be opened 
 to the inspection of any person on the payment of eight annas 
 for every entry which shall be searched for or inspected in 
 the said book ; and that such officer shall, whenever thereunto 
 reasonably required, give a copy of any entry in such book, 
 certified under his hand, to any person requiring the same, on 
 payment to him of the sum of two rupees ; and such copies 
 so certified shall be received in evidence in all courts, and in 
 all summary proceedings, and shall be prima facie proof of 
 the proprietorship or assignment of copyright or licence as 
 therein expressed, but subject to be rebutted by other evidence. 
 
 IV. And it is enacted, that if any person shall wilfully make 
 or cause to be made any false entry in the Eegistry Book 
 aforesaid, or shall wilfully produce or cause to be tendered 
 in evidence any paper falsely purporting to be a copy of any 
 entry in the said book, he shall be guilty of a misdemeanour. 
 
 ' All the emendations and alterations made since this Act became law 
 have been printed iu italics, as they arc embodied in several subsequent 
 Acts.
 
 xliv. MUSICAL COPYRIGHT LAW 
 
 and shall be punished with imprisonment with or without hard 
 labour for a term not exceeding three years. 
 
 V. And it is enacted that, after the passing of this Act, it 
 
 shall be lawful for the proprietor of copyright in any book 
 
 published after the passing of the said Act of Parliament 3 
 
 and 4 Wm. IV., c. 85, to make entry in the Eegistry Book of 
 
 the title of such book, the time of the first publication, and 
 
 the name and place of abode of the publisher thereof, and the 
 
 name and place of abode of the proprietor of the copyright of 
 
 the said book, or of any portion of such copyright, in the form 
 
 in that behalf given in the schedule to this Act annexed,, upon 
 
 payment of the sum of two rupees to the said secretary ; and 
 
 that it shall be lawful for every such registered proprietor to 
 
 assign his interest or any portion of his interest therein by 
 
 making entry in the said Book of Eegistry of such assignment, 
 
 and of the name and place of abode of the assignee thereof, 
 
 in the form given in that behalf in the said schedule, on 
 
 payment of the like sum ; and such assignment so entered 
 
 shall be effectual in law to all intents and purposes whatsoever 
 
 without being subject to any stamp or duty, and shall be of 
 
 the same force and effect as if such assignment had been 
 
 made by deed. 
 
 VI. And it is enacted, that if any person shall deem himself 
 aggrieved by any entry made under colour of this Act in the 
 said Book of Eegistry, it shall be lawful for such person to 
 apply by motion to the Supreme Court of Calcutta, or if the 
 Court shall not be then sitting to any judge of such Court 
 sitting in chambers, for an order that such entry may be 
 expunged or varied ; and that upon any such application to 
 the said Court, or to a judge as aforesaid, such Court or judge 
 shall make such order for expunging, varying, or confirming 
 such entry, either with or without costs, as to such Court or 
 judge shall seem just ; and the said secretary shall, on the 
 production to him of any such order for expunging or varying 
 any such entry, expunge or vary the same according to the 
 requisitions of such order. 
 
 VII. And it is enacted, that if any person shall, after the 
 passing of this Act, print or cause to be printed, either foi- 
 sale or exportation, any l)ook in which there shall be sub- 
 sisting copyright without the consent in writing of the pro- 
 prietor thereof, or shall have in his possession for sale or 
 hire any such book so unlawfully printed without such consent 
 as aforesaid, such offender, if he shall have so offended 
 within the local limits of the jurisdiction of any of the Courts 
 of Judicature established by Her Majesty's Charter, shall be 
 liable to a special action on the case in such Court, and if he 
 shall have so offended in any other part of the Territories 
 subject to the Government of the East India Company, to a
 
 APPENDIX xlv, 
 
 suit in the Zillah Court within the jurisdiction of which he 
 shall have so offended, which shall and may be prosecuted in 
 the same manner in which any other action of damages may 
 be brought and prosecuted there ; and if he shall have so 
 offended in any such last-mentioned part of the Territories 
 subject to the Government of the East India Company in 
 which there is no Zillah Court, to a suit in the highest local 
 Court exercising original civil jurisdiction in such part of the 
 said Territories. 
 
 VIII. And it is hereby enacted, that after the passing of 
 this Act, in any suit or action brought in any of the Courts 
 of Judicature established by Her Majesty's Charter under 
 the provisions of this Act against any person for printing 
 any such book for sale, hire, or exportation, or for selling, 
 publishing, or exposing to sale or hire, or causing to be sold, 
 published, or exposed to sale or hire, or for having in his 
 possession for sale or hire any such book so unlawfully 
 printed, the defendant, on pleading thereto shall give to the 
 plaintiff a notice in writing of any objections on which he 
 means to rely on the trial of such action, and if the nature of 
 his defence be that the plaintiff in such action was not the 
 author or first pubUsher of the book in which he shall by such 
 action claim copyright, or is not the proprietor of the copy- 
 right therein, or that some other person than the plaintiff 
 was the author or first publisher of such book, or is the pro- 
 prietor of the copyright therein, then the defendant shall 
 specify in such notice the name of the person who he alleges 
 to have been the author or first publisher of such book, or the 
 proprietor of the copyright therein, together with the title of 
 such book, and the time when, and the place where such book 
 was first published, otherwise the defendant in such action 
 shall not, at the trial or hearing of such action, be allowed to 
 give any evidence that the plaintiff in such action was not the 
 author or first publisher of the book in wliich he claims such 
 copyright as aforesaid, or that he was not the proprietor of 
 the copyright therein ; and at such trial or hearing no other 
 objection shall be allowed to be made on behalf of such 
 defendant than the objections stated in such notice, or that 
 any other person was the author or first publisher of such 
 book, or the proprietor of the copyright therein than the 
 person specified in such notice, or give (sic) in evidence in 
 support of his defence any other book than one substantially 
 corresponding in title, time, and place of publication with the 
 title, time, and place specified in such notice. 
 
 IX. And it is hereby enacted, that after the passing of this 
 Act, in any such suit or action as last aforesaid, brought in 
 any Zillah Court or other local Court as aforesaid, the de- 
 fendant shall state in his answer all such matters as he means 
 
 12
 
 xlvi. MUSICAL COPYRIGHT LAW 
 
 to rely on, and which by the last preceding Section the de- 
 fendant in any suit or action brought in any of the Courts of 
 Judicature established by Her Majesty's charter is required to 
 give notice of in writing, otherwise such defendant shall be 
 subject to the same consequences for any ornission in his 
 answer as a defendant is made subject to by the last preceding 
 Section for any omission in his notice. 
 
 Sections X. and XI. have no bearing on the subject of 
 music. 
 
 XII. And it is enacted, that all copies of any book wherein 
 there shall be copyright, and of which entry shall have been 
 made in the said Eegistry Book, and which shall have been 
 unlawfully printed without the consent of the registered pro- 
 prietor of such copyright in writing under his hand first 
 obtained, shall be deemed to be the property of the proprietor 
 of such copyright, and who shall be registered as such, and 
 such registered proprietor shall, after demand thereof in 
 writing, be entitled to sue for and recover the same, or damages 
 for the retention thereof. 
 
 XIII. And it is enacted, that if the case be within the juris- 
 diction of any of the Courts of Judicature established by Her 
 Majesty's Charter, such registered proprietor shall be entitled 
 to sue for and recover such copies or damages for the detention 
 thereof in an action of Detinue, from any party who shall 
 detain the same, or to sue for and recover damages for the 
 conversion thereof in an action of Trover, and that if the case 
 be within the jurisdiction of any Zillah Court or other local 
 Court as aforesaid, the registered proprietor shall be entitled 
 to sue for and recover such copies or damages for the detention 
 or conversion thereof, in such form as is in use in the said 
 Zillah or other local Courts for the recovery of specific personal 
 property or damages for the detention or conversion thereof. 
 
 XIV. And it is enacted, that no proprietor of copyright in 
 any book first published after the passing of the said Act of 
 Parliament, 3 and 4 Wm. IV., c. 85, shall maintain under the 
 provisions of this Act any action or suit at law or in equity, or 
 any summary proceeding in respect of any infringement of 
 such copyright, unless he shall before commencing such action, 
 suit, or proceeding, have caused an entry to be made in the 
 Book of Eegistry at the office of the said Secretary, of such 
 book pursuant to this Act. Provided always, that the omission 
 to make such entry shall not affect the copyright in any book, 
 nor the right to sue or proceed in respect of the Infringement 
 thereof, except tlie right to sue or proceed in respect of the 
 infringement thereof under the provisions of this Act. 
 
 Section XV. is obsolete. 
 
 XVI. And it is enacted, that all actions, suits, bills, indict- 
 ments, informations, and other criminal proceedings for any
 
 APPENDIX 
 
 xlvii. 
 
 offence which shall be committed against this Act shall be 
 brought, sued, and commenced witliin twelve calendar months 
 next after such oiTence committed, or else the same shall be 
 void and of none effect. 
 
 XVII. Provided always and it is enacted, that nothing in 
 this Act contained shall affect, alter, or vary any right subsist- 
 ing at the time of passing this Act, except as herein expressly 
 enacted ; and all contracts, agreements, and obligations made 
 and entered into before the passing of this Act, and all remedies 
 relating thereto, shall remain in full force, anything herein 
 contained to the contrary notwithstanding. 
 
 SCHEDULE. 
 
 No. 1. 
 
 Original Entry of Proprietorship of Copyriglit of a Book. 
 
 Time of making 
 llie Entry 
 
 Title of Book 
 
 Name of the 
 
 Publisher and Place 
 
 of Publication 
 
 Name and Place of 
 
 Abode of the 
 
 Proprietor of the 
 
 Copyright 
 
 Date of First 
 Publication 
 
 No. 2. 
 
 Form of Entry of Assignment of Copyright in any Booh previously 
 
 Registered. 
 
 Date of Entry 
 
 Title of Book 
 
 Assignor of the 
 Copyright 
 
 Assignee of the 
 Copyright 
 
 (Set out the title of the 
 book and refer to the 
 page of the Registry 
 Book in which the origi- 
 nal entry of the copy- 
 right thereof is made) 
 
 This Statute is copied from the collection of Statutes printed for the 
 Copyright Association in 1889.
 
 xlviii. MUSICAL COPYRIGHT LAW 
 
 APPENDIX E. 
 
 THE COPYEIGHT LAW OF THE UNITED STATES 
 IN FOECE ON JANUiVRY 1, 1904. 
 
 . Section 4952. The author, inventor, designer, or proprietor 
 of any book, map, chart, dramatic or musical composition, 
 engraving, cut, print, or photograph or negative thereof, or of 
 a painting, drawing, chromo, statue, statuary, and of models 
 or designs intended to be perfected as works of the fine arts, 
 and the executors, administrators, or assigns of any such 
 person shall, upon complying with the provisions of this 
 chapter, have the sole liberty of printing, reprinting, publish- 
 ing, completing, copying, executing, finishing, and vending the 
 same ; and in the case of a dramatic coniposition, of publicly 
 performing or representing it, or causing it to be performed 
 or represented by others. And authors or their assigns shall 
 have exclusive right to dramatise or translate any of their 
 works, for which copyright shall have been obtained under 
 the laws of the United States. 
 
 Section 4953. Copyrights shall be granted for the term of 
 twenty-eight years from the time of recording the title thereof, 
 in the manner hereinafter directed. 
 
 Section 4954. The author, inventor, or designer, if he be still 
 living, or his widow or children, if he be dead, shall have the 
 same exclusive right continued for the further term of fourteen 
 years, upon recording the title of the work or description of 
 the article so secured a second time, and complying with all 
 other regulations in regard to original copyrights, within six 
 months before the expiration of the first term. And such 
 persons shall, within two months from the date of said 
 renewal cause a copy of the record thereof to be published 
 in one or more newspapers, printed in the United States, for 
 the space of four weeks. 
 
 Section 4955. Copyrights shall be assignable in law by 
 any instrument of writing, and such assignment shall be re- 
 corded in the office of tlie Librarian of Congress within sixty 
 days after its execution ; in default of which it shall be void 
 as against any subsequent purchaser or mortgagee for a valu- 
 able consideration, without notice. 
 
 Section 4956. No person shall be entitled to a copyright 
 unless he shall, on or before the day of publication, in this or 
 any foreign country, deliver at the office of the Librarian of 
 Congress, or deposit in the mail, within the United States, 
 addressed to the Librarian of Congress, at Washington, Dis- 
 trict of Columbia, a printed copy of the title of the book
 
 APPENDIX xlix. 
 
 map, chart, dramatic or musical composition, engi*aving, cut, 
 priat, photograph, or chromo, or a descriptiou of the painting, 
 drawing, statue, statuary, or a model or design, for a work of 
 the fine arts, for which he desires a copyright ; uor unless he 
 shall also, not later than the day of the publication thereof, in 
 this or any foreign country, deliver at the office of the 
 Librarian of Congress, at Washington, District of Columbia, 
 or deposit in the mail, within the United States, addressed to 
 the Librarian of Congress, at Washington, District of 
 Columbia, two copies of such copyright jjook, map, chart, 
 dramatic or musical composition, engraving, chromo, cut, 
 print, or photograph, or in case of a painting, drawing, statue, 
 statuary, model, or design for a work of the fine arts, a 
 photograph of the same. 
 
 Section 4957. The Lil:)rarian of Congress shall record the 
 name of such copyright book, or other article, forthwith in a 
 book to be kept for that purpose, in the words following : 
 " Library of Congress, to wit : Be it remembered that on the 
 day of A. B., of hath deposited 
 
 in this office the title of a book (map, chart, or otherwise, as 
 the case may be, or description of the article), the title or 
 description of which is in the following words, to wit ; (here 
 insert the title or description), the right whereof he claims as 
 author (originator, or proprietor, as the case may be), in con- 
 formity with the laws of the United States respecting copy- 
 rights. CD., Librarian of Congress." And he shall give a 
 copy of the title, or description, under the seal of the Librarian 
 of Congress, to the proprietor, whenever he shall require it. 
 
 Section 4958. The Librarian of Congress shall receive from 
 the persons to whom the services designated are rendered, the 
 following fees : (1) For recording the title or description of any 
 copyright book or other article, fifty cents. (2) For every 
 copy under seal of such record actually given to the person 
 claiming the copyright, or his assigns, fifty cents. (3) For 
 recording and certifying any instrument of writing for the 
 assignment of a copyright, one dollar. (4) For every copy of 
 an assignment, one dollar. All fees so received shall be paid 
 into the treasury of the United States : Provided that the 
 charge for recording the title or description of any article 
 entered for copyright, the production of a person not a citizen 
 or a resident of the United States, shall be one dollar, to be 
 paid as above into the treasury of the United States, to defray 
 the expenses of lists of copyrighted articles as hereinafter 
 provided for. 
 
 Section 4959. The proprietor of every copyright book or 
 other article shall deliver at the office of the Librarian of 
 Congress, or deposit in the mail, addressed to the Librarian of 
 Congress, at Washington, District of Columbia, a copy of
 
 1. MUSICAL COPYRIGHT LAW 
 
 every subsequent edition wherein any substantial changes 
 shall be made. Provided, however, that the alterations, 
 revisions, and additions made to books by foreign authors, 
 heretofore published, of which new editions shall appear sub- 
 sequently to the taking effect of this act, shall be held and 
 deemed capable of being copyrighted as above provided for in 
 this act, unless they form a part of the series in course of 
 publication at the time this Act shall take effect. 
 
 Section 4960. For every failure on the part of the pro- 
 prietor of any copyright to deliver, or deposit in the mail, 
 either of the published copies, or description, or photograph, 
 required by Sections 4956 and 4959, the proprietor of the 
 copyright shall l)e liable to a penalty of twenty-five dollars, 
 to be recovered by the Librarian of Congress, in the name of 
 the United States, in an action in the nature of an action of 
 debt, in any district court of the United States within the 
 jurisdiction of which the delinquent may reside or be found. 
 
 The following Act in relation to the deposit of copies was 
 approved March 3, 1893 : " That any author, inventor, 
 designer, or proprietor of any book, or other article entitled to 
 copyright, who has heretofore failed to deliver in the office of 
 the Librarian of Congress, or in the mail addressed to the 
 Librarian of Congress, two complete copies of such book, or 
 description, or photograph of such article, within the time 
 limited by title sixty, chapter three, of the Eevised Statutes 
 relating to copyrights, and the Acts in amendment thereof, 
 and has complied with all other provisions thereof, who has, 
 before the first day of March, anno Domini eighteen hundred 
 and ninety-three, delivered at the office of the Librarian of 
 Congress, or deposited in the mail addressed to the Librarian 
 of Congress, two complete printed copies of such book, or 
 description, or photograph of such article, shall be entitled to 
 all the rights and privileges of said title sixty, chapter three, 
 of the Revised Statutes and the Acts in amendment thereof." 
 
 Section 4962. No person shall maintain an action for the 
 infringement of his copyright unless he shall give notice 
 thereof by inserting in the several copies of every edition 
 published, on the title-page, or the page immediately following, 
 if it be a book ; or if a map, chart, musical composition, 
 print, cut, engraving, photograph, painting, drawing, chrorao, 
 statue, statuary, or model, or design, intended to be perfected 
 and completed as a work of the fine arts, by inscribing upon 
 some visible portion thereof, or of the substance on which the 
 same shall bo mounted, the following words, viz., " Entered 
 according to act of Congress, in the year , by A.B., in 
 
 the office of the Librarian of Congi'ess, at Washington," or, 
 at his option, the word " Copyright," together with the year
 
 APPENDIX li. 
 
 the copyright was entered, and the name of the party by 
 whom it was taken out, thus : " Copyright, 18 , by A.B." 
 
 Section 4963. Every person who shall insert or impress such 
 notice, or words of the same purport, in or upon any book, 
 map, chart, dramatic or musical coviposition, print, cut, engrav- 
 ing or photograph, or other article, whether such article be 
 subject to copyright or otherwise, for which he has nob 
 obtained a copyright, or shall knowingly issue or sell any 
 article bearing a notice of a United States copyright which 
 has not been copyrighted in this country ; or shall import any 
 book, photograph, chrorao, or lithograph, or other article bear- 
 ing such notice of copyright or words of the same purport, 
 which is not copyrighted in this country, shall be liable to a 
 penalty of one hundred dollars, recoverable one half for the 
 person who shall sue for such penalty and one-half to the use 
 of the United States ; and the importation into the United 
 States of any book, chromo, lithograph, or photograph, or 
 other article bearing such notice of copyright, when there is 
 no existing copyright thereon in the United States, is pro- 
 hibited ; and the circuit courts of the United States sitting in 
 equity are hereby authorised to enjoin the issuing, publishing, 
 or selling of any article marked or imported in violation of 
 the United States copyright laws, at the suit of any person 
 complaining of violation : Provided, that this Act shall not 
 apply to any importation of or sale of such goods or articles 
 brought into the United States pi-ior to the passage hereof. 
 
 Section 4964. Every person who, after the recording of the 
 title of any book and the depositing of two copies of such book 
 as provided by this Act, shall, contrary to the provisions of this 
 Act, within the term limited, and without the consent of the 
 proprietor of the copyright first obtained in writing, signed in 
 presence of two or more witnesses, print, publish, dramatise, 
 translate, or import, or, knowing the same to be so printed, 
 published, dramatised, translated, or imported, shall sell or 
 expose for sale any copy of such book, shall forfeit every copy 
 thereof to such proprietor, and shall also forfeit and pay such 
 damages as may be recovered in a civil action by such pro- 
 prietor in any court of competent jurisdiction. 
 
 Section 4965. If any person, after the recording of the title 
 of any map, chart, dramatic or musical composition, print, cut, 
 engraving, or photograph or chromo, or of the description of 
 any painting, drawing, statue, statuary, or model or design 
 intended to be perfected and executed as a work of the fine 
 arts, as provided by this Act shall, within the term limited, 
 contrary to the provisions of this Act, and without the consent 
 of the proprietor of the copyright first obtained in writing, 
 signed in presence of two or more witnesses, engrave, etch, 
 work, copy, print, publish, dramatise, translate, or import.
 
 lii. MUSICAL COPYRIGHT LAW 
 
 either in whole or in part, or by varying the main design, 
 with intent to evade the law, or, knowing the same to be so 
 printed, published, dramatised, translated, or imported, shall 
 sell or expose for sale any copy of such map or other article, 
 as aforesaid, he shall forfeit to the proprietor all the plates on 
 which the same shall be copied, and every sheet thereof, either 
 copied or printed, and shall further forfeit one dollar for every 
 sheet of the same found in his possession, either printing, 
 printed, copied, published, imported, or exposed for sale. 
 
 Section 4966. Any person publicly performing or represent- 
 ing any dramatic or musical composition for which a copyright 
 has been obtained, without the consent of the proprietor of 
 said dramatic or musical composition, or his heirs or assigns, 
 sball be liable for damages therefor, such damages in all cases 
 to be assessed at such sum, not less than one hundred dollars 
 for the first and fifty dollars for every subsequent performance, 
 as to the Court shall appear to be just. If the unlawful per- 
 formance and representation be wilful and for profit, such 
 person or persons shall be guilty of a misdemeanour and upon 
 conviction be imprisoned for a period not exceeding one year. 
 Any injunction that may be granted upon hearing after notice 
 to the defendant by any Circuit Court in the United States, or 
 by a judge thereof, restraining and enjoining the performance 
 or representation of any such dramatic or musical composition, 
 may be served on the parties against whom such injunction 
 may be granted anywhere in the United States, and shall be 
 operative and may be enforced by proceedings to punish for 
 contempt or otherwise by any other circuit, court or judge in 
 the United States ; but the defendants in said action, or any 
 or either of them, may make a motion, in any other circuit in 
 which he or they may be engaged in performing or represent- 
 ing said dramatic or musical composition, to dissolve or set 
 aside the said injunction upon such reasonable notice to the 
 plaintifl' as the Circuit Court or the judge before whom said 
 motion shall be made shall deem proper ; service of said 
 motion to be made on the plaintiff in person or on his attorneys 
 in the action. The Circuit Courts or judges thereof shall have 
 jurisdiction to enforce said injunction and to hear and deter- 
 mine a motion to dissolve the same, as hei-ein provided, as 
 fully as if the action were pending or brought in the circuit 
 in which said motion is made. 
 
 Section 4967. Every person who shall print or publish any 
 manuscript whatever, without the consent of the author or 
 proprietor first obtained shall be liable to the author or pro- 
 prietor for all damages occasioned by such injury. 
 
 Section 4968. No action shall be maintained in any case of 
 forfeiture or penalty under the copyright laws, unless the
 
 APPENDIX liii. 
 
 same is oomineaced within two years after the cause of action 
 has arisen. 
 
 Section 4969. In all actions arising under the laws respect- 
 ing copyrights the defendant may plead the general issue, and 
 give the special matter in evidence. 
 
 Section 4970. The Circuit Courts, and District Courts having 
 the jurisdiction of Circuit Courts, shall have power, upon bill in 
 equity, filed by any party aggrieved, to grant injunctions to 
 prevent the violation of any right secured by the laws respect- 
 ing copyrights, according to the course and principles of Courts 
 of Equity, on such terms as the Court may deem reasonable. 
 
 " That this act shall go into effect on the first day of July, 
 Anno Domini eighteen hundred and ninety-one " (Section 12). 
 
 " That this act shall only apply to a citizen or subject of a 
 foreign State or nation when such foreign State or nation 
 permits to citizens of the United States of America the benefit 
 of copyright on substantially the same basis as its own citizens; 
 or when such foreign State or nation is a party to an inter- 
 national agreement which provides for reciprocity in the 
 granting of copyright, by the terms of which agreement the 
 United States of America may at its pleasure become a party to 
 such agreement. The existence of either of the conditions 
 aforesaid shall be determined by the President of the ^United 
 States, by proclamation made from time to time as the purposes 
 of this Act may require" (Section 13). 
 
 This risuvic of the present copyright law is taken from 
 " Copyright Cases," compiled by Arthur S. Hamlin, New York. 
 
 APPENDIX F. 
 
 1905. The Senate. 
 
 Presented and read P, August 16 ; Senator Keating. 
 
 A BILL FOR AN ACT RELATING TO COPYRIGHT. 
 
 No. 9. 
 
 (Printed for the Commonwealth of Australia.) 
 
 At the last moment before publication, the present writer 
 has received a copy of the above. He is only able to give the 
 most cursory sketch of its tenour. Tne Bill is framed on 
 British lines in point of form. The outline is due to the un- 
 rivalled skill in drafting of Lord Thring ; no better model 
 could have been adopted ; but the merits have received some 
 comment.
 
 liv. MUSICAL COPYRIGHT LAW 
 
 In Part III., Clause 13, placitum (2) it is enacted, in effect, 
 that copyright shall subsist in every book, whether the author 
 is a British subject or not, which has after the commencement 
 of the Act been first published in Australia, before or simul- 
 taneously with its publication elsewhere. 
 
 A similar clause (14) relates to performing right. A doubt 
 has been expressed by one or two of the leading London 
 publishers whether these clauses contain an inference which 
 would deprive works published in the United Kingdom of 
 protection in Australia. There is no ground for this alarm. 
 The constitutional rule extending the area of protection of 
 such works to the whole British empire cannot be shaken. 
 (Koutledge versus Low, Law Eeports, 3 House of Lords, 100.) 
 This rule was extended by the International Copyright Act, 
 1886, Section VIII. ; and see the concluding words of Section 
 IX. ; the Australian clause is clearly explained by clause 62 
 of the Bill and cannot give rise to any conflict of jurisdiction. 
 Clause 16 is open to a similar observation. 
 
 The proposed term, for the author's life and thirty years 
 after that in which he dies, is unobjectionable. 
 
 Copyright is wisely and with precision, kept distinct from 
 performiug right. 
 
 Importation of pirated works copyright in Australia 
 " whether under this Act or otherwise," is prohibited. 
 
 Part VI., Clause 60, of the Bill provides that the owner of 
 copy or performing right in auy musical work entitled to pro- 
 tection in Australia under any Act of the Parliament of the 
 United Kingdom [or entitled to protection in any State by 
 virtue of any State Copyright ActJ " shall have the same pro- 
 tection in the Commonwealth as ' an owuer ' under this Act." 
 A certificate of registration is necessary. 
 
 Clause 62. — Nothing is to lessen the protection in Australia 
 by virtue of any Act of Parliament of the United Kingdom in 
 force at any time in the Commonwealth. 
 
 At the moment of going to press a charge at Bow Street 
 is being heard, of conspiracy, against James Frederick Willets, 
 William Tenant, and three others, who are accused of con- 
 spiring to print and sell copyright music. The accused were 
 remanded on Thursday, November 9, 1905, Evidence was 
 given that Willets, whose assumed names are hardly to be 
 counted, after carrying on the fraudulent business in pirated 
 music which has ruined so many worthy tradesmen, rich and 
 poor, had been hunted by the copyright owners with some 
 success, as he was at last trying to evade the law by launching 
 a bogus limited company. Whether this device succeeds will 
 depend upon the result of the present proceedings.
 
 Iv. 
 
 INDEX. 
 
 ABANDONMENT OF COPYKIGHT. By deed, 13 ; Messrs. 
 
 Novello's abandonment of Dean Hole's " God Save the Queen,'' 
 
 13 ; under American law, how to abandon copyright in U.S., 127. 
 ABRIDGEMENT, 85 ; Appendix B, xvii. 
 
 ACQUIESCENCE, what is, 51 ; what amount of will bar a right, 51. 
 ACT OF PARIS, 1896, 79, 83, 90. See Appendix, xxvii. 
 ACTION, hints as to bringing, 50 ; when previous application desirable, 
 
 ih. 
 ACTS (OF PARLIAMENT). See Statutes. 
 ADAPTATION, copyright in, generally, 30 ; by changing to a dance ; 
 
 of original words to non-copyright air : the converse, 31 ; under 
 
 Berne Convention, 85. 
 ADDITIONS, copyright in ; under Berne Convention, 85. 
 ADDITIONAL ACT OF PARIS, 79, 83, 90. Sec Appendix, xxvu. 
 ^OLIAN, the, 35, 87. 
 
 AGREEMENT, when it must be in writing, 16, 18. 
 ALIEN, 5 ; whether must be residing here to obtain rights, 18 ; under 
 
 Berne Convention, 81 ; in America, 121, 122 ; Appendix C, liii. 
 AMERICA. See U.S. 
 AMOUNT. Sec Quantum. 
 ANONYMOUS, under the Berne Convention, 85 ; Appendix C, xx. ; 
 
 under the Austrian, Appendix, xxxi. ; books, under Canadian Act 
 
 of 1875, Appendix, xxxix. 
 ANTIGUA, 109. 
 
 ARPEGGIO, airs composed of, should not generally be sued on, 40. 
 AREA OF PROTECTION, 18, 111. 
 ARRANGEMENT, Copyright in, 30; where restrained, 31; under 
 
 Berne Convention, Appendix C, xx. 
 ASSIGNEE, of unpublished work, 7 ; whether liability to pay 
 
 royalties, passes to, 21. 
 ASSIGNMENT, either by writing or entry on register, 73 ; sometimes 
 
 presumed, 19 ; stamp upon, ih. ; of performing right will not pass 
 
 copyriglit, 73 ; of copyright will not pass performing right, 16, 
 
 73 ; of unpublished MS., writing necessarj', 7 ; in America, by 
 
 parol, ib. ; by receipt, ib. ; when presumed, 19. 
 AUSTRALIA, Victorian Copyright, 106 ; South, excepted from 
 
 Austrian Convention, Appendix xxxiii. ; Western, do. ; Copyright 
 
 Bill, Appendix, Iv. 
 AUSTRIA, CONVENTION WITH, 88; Appendix C, xxix. 
 AUTHOR, joint and plurality of, 13, 14, 15, 16 ; whether all must 
 
 sue, 15 ; may keep his work secret, 7 ; under Berne Convention, 
 
 Appendix C, xviii.
 
 Ivi. MUSICAL COPYRIGHT LAW 
 
 BAHAMAS, 108 : music need not be stamped, 101. 
 
 BANKRUPTCY, Copyright in MS. passing under, 8. 
 
 BAR, no rule as to number of, with reference to infringement, 139 
 first bars of Beethoven's C minor symphony, 40. 
 
 BARBADOS, 108. 
 
 BELGIUM, 79; admitted to protection in the United States, 122. 
 
 BEQUEST, 7. 
 
 BERMUDA, 108. 
 
 BERNE CONVENTION, 77, 78, et sequilur ; Appendix ii. et seq. ; 
 text. Appendix C, x\ iii. 
 
 BONA FIDES, no excuse for infringement. See " motiye." 
 
 BOOK, definition of in Copyright Act, 1842, 100. And see 26 ; out of 
 print, no abandonment; in some cases of Colonial Acts means 
 " sheet of music," 101 ; in the Indian Statute of 1847, not stated 
 to include "music," 104; under Victorian Statute, 106; in Inter- 
 national Statutes, means music, 77. 
 
 BOUCICAULT V. DELAFIELD, " CoUeen Bawn," 62. 
 
 BOUCICAULT V. CHATTERTON, " Shaughraun," 63. 
 
 BRITISH GUIANA, 109. 
 
 BRITISH rOSSESSIONS, definition under Act of 1886, 96. 
 
 CANADA, copyright in, 111; Statute of 1875, 111, et sequitur ; tarifi 
 of 1894, 116 ; excepted from Austrian Convention, 89. 
 
 CAPE OF GOOD HOPE, 110 ; excepted from Austrian Convention 
 89 ; Appendix, xxxiii. 
 
 CHANCE IDENTITY, if a ground of action, 35. 
 
 CHANT, must not be copied, 37. 
 
 CHILI, admitted to protection in the United States, 122. 
 
 COLONIAL COPYRIGHT, Chap, vii., generally ; Colonies assimi- 
 lated to Mother Country by Statute of 1886, 95 ; registration, 96 ; 
 foreign reprints, questions as to, 115. 
 
 COLOURABLE ALTERATION, in song or other piece, 8, 41, 42. 
 
 COMBINATION, phrases only significant when in combination with 
 others, 40. 
 
 COMMISSION, WORKS EXECUTED ON. 
 
 COMMISSIONERS OF CUSTOMS, 101, 117. 
 
 COMMON FORM ; phrases may be copied without incurring danger 
 of legal proceedings, 39, 40, 41. 
 
 COMMON LAAV RIGHTS, perpetual, where, 3; in published work, 
 no longer exist, 11 ; in unpublished, 3, 8 ; passing off, protection 
 against, 8, 27. 
 
 CONSPIRACY, criminal charge against the street pu-ates, Appendix, 
 
 liv. 
 COMMON SOURCE, 39, 43. 
 
 CONTEMPORANEOUS PUBLICATION, 17; imdcr Berne Con- 
 vention, Appendix C, xviii. 
 
 CO-OWNERS, see joint authors. 
 
 COPY, whetlier one is an infringement, 36. 
 
 COPYRIGHT, defined, 34 ; musical, defined ; Appendix B, xvii. 
 
 COSTS, double, when repealed, 67 ; Appendix Ji, xv. 
 
 COSTA RICA, admitted to protection in United States, 122 
 
 COUNTRY OF ORIGIN, meaning of, 79, 81, 82, 97; qua 'term. 98 
 Appendix C, xviii.
 
 INDEX Ivii. 
 
 COUNTRY OF UNION, may accede for colonies, 97; Appendix C, 
 
 xviii ; 80, 82. 
 CRITICISM, Extracts for. See " programme." 
 CU1-5A, admitted to protection in the United States, 122. 
 CUSTOMS CONSOLIDATION ACTS, 54, 101, 102, 117. 
 
 DALDY, :\rR. FREDERICK, his proposal for dealing with colonia 
 duties, 103. 
 
 DAMAGES, where in the discretion of the Court, 67 ; Appendix B. 
 xvi. 
 
 DEFINITION, of copyright, 34, of copy, Zry, of book in Indian 
 Statute of 1847, does not include music in terms, 104 ; in the 
 International Act of 1886, is given of terms which do not occur 
 in the Statute, 59 ; of " performance," only in a Statute where 
 the word does not occur, 59 ; of " Musical Copyright," Appendix 
 
 B, xvii. 
 
 DELAY, Ground of Defence, when. See " Acquiescence," 51. 
 DELIVERY OF PIRATED COPIES, 52; under Berne Convention, 
 
 amended by Act of Paris of 1896, 86. 
 DENMARK, joined Berne Convention, 79 ; admitted to protection in 
 
 United States, 122. 
 DENUNCIATION OF CONVENTION by colonies, 97; Appendix 
 
 C, xxiv. 
 
 DEPOSIT OF COPIES AT PUBLIC LIBRARY, in United States 
 
 Appendix C, xlix. 
 DIFFERENCE OF TREATMENT, no defence, if melody taken, 44. 
 DILIGENCE, in suing, 51. 
 
 DISTRIBUTION, when a publication ; Novello v. Sudlow, 46. 
 DIVISIBILITY OF COPYRIGHT, 19. 
 
 DRAMATIC COPYRIGHT, case of, cited as similar to music, 41. 
 DRAMATICO- MUSICAL WORKS, under Berne Convention, 84; 
 
 under the Austrian, Appendix, xxx., xxxii. 
 
 EDITION, 25, 26 ; new, whether to be registered under Canadian Act 
 
 of 1875, Appendix, xxxix. 
 EMPLOYER, where copyright vests in, 19; not without writing, 19. 
 ENTERTAINMENT, PLACE OF, 64, 67. 
 ENTRIES IN REGISTRY, 19, 23 ; discrepancy between Act of 
 
 1842 and schedule, 23 ; in America, 125. 
 EQUITY, COURT OF, desirable tribunal for injunctions, 50. 
 ERRORS, similarity in, evidence of theft, 44. 
 EVIDENCE of title under Berne Convention, 85 ; of infringement, 
 
 by similaritj' of error, 44. 
 EXECUTION, whether unpublished MS. pass under, 8. 
 EXTENSION OF TERM, in U.S., Appendix C, xlviii. 
 
 FAIR CRITICISM, 39, 41, 
 
 FEES FOR REGISTRATION, 19 ; in America, 128. 
 
 FILE USE (Raff.) injunction against importing, 86. 
 
 FIRM, how to be registered, 25 ; under American law, 129. 
 
 FOREIGN AUTHORS, 18. 81 ; in America, 121, 122 ; and see " Alien." 
 
 FOREIGNER See FOREIGN AUTHORS, in U.S. Appendix C.liii. 
 
 FOREIGN REPRINTS ACT, 115.
 
 Iviii. MUSICAL COPYRIGHT LAW 
 
 FORFEITURE, of copies in case of piracy, under Act of 1842, 55, 
 57 ; under International law, 92, 93 ; under Canadian Act of 
 1875 ; Appendix, xxxvi., xxxvii. 
 
 FORMALITIES, under Berne Convention, Appendix, xviii. ; under 
 Austrian, xxxi. 
 
 FORMS, tabular, of the offences under the Statute of 1842, Sections 
 II. and III., 56; under Sections XV. and XVII., 57 ; under per- 
 forming right, 74 ; under International copyright, 92. 
 
 FORTUITOUS IDENTITY, if a ground of action, 35. 
 
 FRANCE, signatory of Berne Convention, 79 ; admitted to protec- 
 tion in the United States, 122. 
 
 FRAUD, cases of passing off, 8, 27 ; various forms of, adopted by 
 street pirates, 47 ; Appendix, liv. 
 
 FRILEUSE (LA), Hellier, 25, 32. 
 
 GERMANY, joined Berne Convention, 79 ; admitted to protection in 
 
 United States, 122. 
 GIFT OF MS., effect of, 12. 
 GOLDEN BUTTERFLY, 15. 
 GRAMAPHONE, 22, 30, 88. 
 
 GRATUITOUS CIRCULATION, an infringement, 46' 
 GREAT BRITAIN, signatory of Berne Convention, 79. 
 GRENADA. 110. 
 GUILTY KNOWLEDGE, 84, 55. 
 
 HAITI. See International Chapter, Berne Convention, 79. 
 
 HAWKERS, Piratical, Appendix B, xvii., liv. 
 
 HOLLAND. See International Chapter, Berne Convention, not a 
 
 signatory, 79. 
 HOSPITAL CASE, alleged piratical performance, 64. 
 HUNGARY. See International Chapter, Berne Convention, 88 ; 
 
 Appendix, xxix. 
 HYMNS, must not be copied, 37. 
 
 IDENTITY OF ERROR, test of puracy, 44. 
 
 IDENTITY OF PHRASE, not always necessary to show piracy, 42. 
 
 IGNORANCE OF LAW, no excuse for piracy, 34, 55. 
 
 IGNORANCE OF FACT, if an excuse for piracy, 34. 
 
 IMPERIAL BOOK COMPANY versus BLACK, 115, 118. 
 
 IMPORTATION, under the Berne Convention, 86 ; into the Colonies, 
 
 98, et sequitur ; under Customs Acts, 101 ; under the Austrian 
 
 Convention, xxxii. ; where not prohibited in Canada, Appendix, 
 
 xxxvii. 
 IMPROVISATION, piratical reproduction of, 70. 
 INDIA. See Chap, vii., Contents, Statute of 1847, 104 ; copyright in, 
 
 term of, registration necessary, 105 ; excepted from Austrian 
 
 Convention, Appendix, xxxiii. 
 INFRINGEMENT. See Chap. iv. ; in U.S. Appendix C, li. 
 INJUNCTION, rarely should be asked for ex jnirte, 51; in U.S. 
 
 Appendix C, liii. 
 INTENTION, honest, if an excuse for imitation, 46.
 
 INDEX 
 
 lix. 
 
 INTERNATIONAL RIGHTS, creation of Statute, 75 ; how they 
 arose, 75 ; Berne Convention and Statute of 1886, 78, 79. See 
 Chap, vi., country of origin, what is, 82 ; performing right, 84 ; 
 tabular form of remedies, 92. 
 
 INTEST\CY 7 
 
 ITALY ADMITTED TO PROTECTION IN UNITED STATES, 
 122. See International Chapter, 79. 
 
 JAMAICA, 110. 
 JAPAN 79 
 
 JOINT AUTHORS, of unpublished work, 10; of published work 
 13, 14, 15 ; tenants in common, 15. 
 
 KNOWLEDGE, guilty, where essential to entitle owner to sue, 34, 
 35 ; under Section 3 of Copyright Amendment Act, under Section 
 15, 34 ; under Section 17, 55. 
 
 LACHES, 51. 
 
 LIBRARIES, under Canadian Act, Appendix, xxxix ; imder American 
 
 Law, Appendix, xlix. 
 LIBRETTO, what is publication of, in America ; 125, 127. 
 LICENSE, in writing, 73. 
 LICENSEE, if he may sue an infringer, 20. 
 LIED OHNE WORTE, travestied, 45. 
 LIMITATION of time for suing, 51. 
 LISTS OF BOOKS, under Customs Acts, 102. 
 LISTS OF TITLES, suggestion of the writer for a book of, 28. 
 LITTLE LORD FAUNTLEROY CASE, 36. 
 LITTLETON versus OLIVER DITSON, 127. 
 LOCALITY, copyright divisible according to, 19. 
 LUXEMBOURG. See International Chapter ; Berne Convention, 79. 
 
 MS., protected against theft, 6 ; impublished, protection of per- 
 petual, 3. 
 
 MASS in A flat, Reissiger, 6. 
 
 MAURITIUS, 109 ; music need not be stamped ua, 101. 
 
 MECHANICAL INSTRUMENTS, 35 ; under Berne Convention, 87. 
 
 MELODY, reproduced, 44, 45. 
 
 MEXICO, admitted to protection in United States, 122. 
 
 MONACO, 79. 
 
 MONKSWELL, LORD, committee under his presidence, invited to 
 deal with street piracy ; penalties rejected by them, 48, 49. 
 
 MONOPOLY, 1. 
 
 " MOROCCO BOUND " SYNDICATE versus HARRIS, 91. 
 
 MOTIVE, laudable, no defence, 46. 
 
 MUSICAL COMPOSITIONS, included in book, 26. 
 
 MUSICAL COPYRIGHT, defined, Appendix B, xvii. 
 
 MUTILATION, 46. 
 
 NAME, no copyright in, 28. 
 
 NATAL, 110 ; excepted from Austrian Convention, xxxiii. 
 
 NATIONALITY OF AUTHOR, under Act of 1842, 18 ; under Berne 
 
 Convention, 10 ; under American Statutes, Appendix, 53 ; under 
 
 Canadian Act of 1875, 113.
 
 Ix. MUSICAL COPTEIGHT LAW 
 
 NETHERLANDS, admitted to protection in United States, 122. 
 
 NEVIS, 110. 
 
 NEWFOUNDLAND, 108; excepted from Austrian Convention 
 
 Appendix, xxxiii. 
 NEW SOUTH WALES, excepted from Austrian Convention, 89. 
 NORWAY, 79. 
 
 OCCUPIER, whether liable for piratical performance, Appendix B, 
 xvi. 
 
 OPERA, excepted from operation of the Copyright (Musical Composi- 
 tions) Act, 1888, Appendix B, xvi. 
 
 ORATORIOS, " Israel in Egypt " containing plagiarised matter, 39. 
 
 ORDER, music written to, 16, 19. 
 
 ORDER IN COUNCIL, 78 ; giving effect to Berne Convention, 76, 
 79 ; not always co-extensive with Statute of 1886, 81, 83 ; giving 
 effect to additional Act of Paris, 1896. See Appendix, xxvi. 
 
 ORIGIN. See comitry of. 
 
 PAROL, transfer of unpublished MS. by, in America, 7, note. 
 
 PARSIFAL, 123. 
 
 PART not particle, 41 ; and see " Particle " as regards performing 
 right, 73. 
 
 PARTICLE, dictum of Lord Hatherley, 41, 73. 
 
 PARTNERSHIP (part owners), 15. 
 
 PASSING OFF spurious song or piece as a well-kno^vn one, 8, 27. 
 
 PENALTIES, under Act of 1842, 57, 65 ; under Walls Act, 66 ; under 
 the Statute of 1888, may be nominal, xvi. ; proposed, in Statute 
 prepared by the writer, in cases of street piracy. 
 
 PERFORMANCE, unauthorised, no infringement of copyright, 49 ; 
 prior performance abroad does not affect copyright 49, 61 ; and 
 first performance here does not affect copyright here, 58 ; what 
 performances are an infrmgement, 59 ; in public cuts down the 
 right to a term, 60. 
 
 PERFORMING RIGHT, distinct from copyright, 49, 58; whether 
 perpetual in unpublished work, 58 and see Chap. v. ; whether 
 included in the Indian Statute of 1847, 104 ; under the Canadian 
 Statute of 1875, 113 ; no ground for the belief that the right is 
 confined to a life, 60; under American law, not distinct from 
 copyright in its origui, as here, 123, 129, 131 ; reservation of, by 
 notice, 61 ; tabular form of remedies, 74 ; mider Berne Conven- 
 tion, 84 ; in U.S. infringement, Appendix C, liii. 
 
 PERPETUITY. See unpublished works. 
 
 PHONOGRAPH, 88 ; under American law, 130. 
 
 PIANOFORTE SCORE, 31. 
 
 PIANOLAS, 35. 
 
 PIRACY. See Pirate ; pirated works may be seized under Berne 
 Convention and Act of Paris, 1896, 86 ; Appendix B, xvii, \\\. 
 
 PIRATICAL PERFORMANCE, who responsible for, 67 ; whether 
 registration necessary, to restrain it, 70, 71, 72. 
 
 PIRATE (street), 2, 47, 4*8, 49 ; charge of conspiracy against Willets 
 and others, Appendix, liv. 
 
 PORTUGAL. See International Chapter, admitted to protection in 
 United States, 122.
 
 INDEX Ixi. 
 
 OSTHUMOUS WORKS, term in, 12 ; MS. given as a relic, 12. 
 
 PRINCE ALBERT versus STRANGE, 12. 
 
 PRINTING, meaning of in the Act of 1833, 61 ; rule that it must be 
 from types set up in U.S. does not apply to music, 127. 
 
 PRODUCTION, under proviso for indemnity in Section 6 of Act of 
 1886, Appendix v. 
 
 PROGRAMME, concert, citation of themes in, not piratical, 39. 
 
 PROPERTY, in copyright distinguishable from term, 15. 
 
 PROPRIETOR, litibilily of for piratical representation in his hall, 
 none under Act of 1888, Appendix, xvi. 
 
 PSEUDONYMOUS WORK unde^ the Berne Convention, 85; 
 Appendix C, xx. 
 
 PUBLIC PERFORMANCE, what is, 59, 64 ; first, is equivalent to 
 publication of a book, 61. 
 
 PUBLICATION, definition of, 12, 25 ; simultaneous, 17 ; Prmce 
 Albert versus Strange, lb. ; must be in United Kingdom or some 
 other British possession in order to confer right, 17 ; unantici- 
 pated publication confers protection in United States 17 ; must 
 be within reasonable time after recording title, 125 ; often con- 
 founded with performance, 61 ; first, either here or abroad, does 
 not affect cop^-right, 61 ; meanuig of " first publication," 62 ; 
 wrongful, in U.S. Appendix C, lii. 
 
 PUBLISHED WORK, whether it alone is within the scope of the 
 Copyright Amendment Act, 1842, or whether unpublished works 
 do not fall withm some sections of that Statute, quaere, 4, 53 ; 
 common law right in, cease ; 3, 11. 
 
 PUBLISHER'S, name on the work, where necessary, 85 ; under 
 Berne Convention publisher substituted for author, altered by 
 Act of Paris, 1896 ; Appendix C, xxvii., under Austrian Conven- 
 tion, 88 ; Appendix, xxxi. 
 
 QUANTUM, test of piracy, 38, 41. 
 
 QUEENSLAND excepted from Austrian Convention; Appendix, 
 
 xxxiii. 
 QUOTATIONS, what, allowed, 39, 46. 
 
 RECITATION, when an infringement, 36. 
 
 RECTIFICATION OF REGISTER, under Indian Statute ; Appen- 
 dix, xliv. 
 
 REGISTRATION, does not confer copyright, 22; under Copyright 
 Amendment Act, 23 et sequitur ; assignment by, 73; not neces- 
 sary to obtain copyright, 19 ; may be made on the day of suing, 
 19 ; how entries may be corrected, 19 ; whether necessarj' in 
 International cases, 81 ; under obsolete conventions, a condition 
 precedent, 77 ; copyright lost thereby, 77 ; and see Appendix, 
 i. ; in Indian Statute of 1847, 105 ; discrepancy' between body of 
 the Act of 1842 and the scheduled form, 23 ; also occurs in 
 Indian Act of 1847, 105 ; also in Victorian Statute, 106 ; minute- 
 ness required under Act of 1842, 23 ; failure in one item, fatal, 
 23, 25 ; firm, how to be described, 25 ; under Austrian Conven- 
 tion, Appendix, xxxi. 
 
 REMEDIES, advice to young composers, as to user of, 49 et seq. ; 
 tabular forms in Chap. iv. 55 ; Chap. v. 74 ; Chap. vi. 92. 
 
 13
 
 Ixii. MIJSICALCOPYRIGHT LAW 
 
 KEPEESENTATION, definition of. See performance, 58; where 
 equivalent to publication, 62 ; locale, important ; at hospital 
 whether an infringement, 64 ; whether registration necessary to 
 confer right of suing, 70 ; when right of commences under, 59. 
 
 REPRINTS. See " foreign reprints." 
 
 RESERVATION of performing right, 65, 66 ; Appendix B, xiv., under 
 Berne Convention 81, 84 ; in America, Appendix C, i. 
 
 RESIDENCE, whether must be in British dominions to confer 
 copyi-ight, 18. 
 
 RETROSPECTIVE, effect of Berne Convention, 88 ; Appendix A, of 
 Austrian ; Appendix, xxxii. 
 
 ROYALTIES, whether liability to pay, passes to assignee, 21. 
 
 RUSSIA, not a party to the Berne Convention, 83. 
 
 SAINT CHRISTOPHER, 108. 
 
 SAINT LUCIA, 109. 
 
 SAINT VINCENT, 109. 
 
 SALE, where writing necessarj^ 7. 
 
 SCORE, copyright in, 85. 
 
 " SEMIRAMIDE," overture to, 43. 
 
 "SHAUGHRAUN,"63. 
 
 SHEET OF MUSIC, comprised in "book," 26, 28. 
 
 SIMILARITY, of error ; badge of piracy, 44. 
 
 SIMULTANEOUS PUBLICATION, 17; mider Berne Convention; 
 
 Appendix C, xviii. 
 SMILES, versus Bedford, 114 
 SONGS FOR CHILDREN, impossible to create monopoly of such 
 
 a title, 27. 
 SONGS WITHOUT WORDS, ih. 
 SPAIN. See Chapter on International rights, Berne Convention, 79 ; 
 
 admitted to protection in United States, 122 
 SPLENDID MISERY, 27. 
 STAMP, where sixpenny, not sufficient on transfer, 8, 19 ; in some 
 
 cases required to be affixed to music b}' the Colonial Acts, 101. 
 STATUTES, no extraterritorial copyright without, 76. 
 STREET PIRATES, 2, Appendix, Uv. 
 STYLE, whether copying, can be piratical, 42. 
 SUBJECT of Bach's piano fugue m E, not original, 41. 
 SURVIVORSHIP, where joint owners, 15. 
 
 SWEDEN. See Chapter on International right, Berne Convention, 79. 
 SWISS EXPRESS CASE, 88; Appendix, vii. et scquitur. 
 SWITZERLAND, 79 ; admitted to protection in the United States, 
 
 122. 
 
 TALFOURD'S ACT, 3. 
 
 TASMANIA excepted from Austrian Convention, Appendix, xxxiii. 
 
 TERM in copy and performmg right, 4, 12 ; in posthumous works, 12 ; 
 
 in work by joint authors, 14 ; by a plurality of authors, 14 ; 
 
 under Indian Statute, 105 ; under Victorian Statute, 106 ; under 
 
 Berne Convention, 80, 81. 
 TIME, change of, no defence, 45. 
 TITLE, whether copyright in, 9, 26, 27. 
 TITLE PAGE, whether notice required by American law should be 
 
 on, 129.
 
 INDEX Ixiii. 
 
 TONIC-SOL-FA NOTATION, copy in, an infi-ingement, 36. 
 TRANSFER. See Assignment. 
 TRANSPOSITION, an infringement, 37. 
 
 TRANSLATIONS, wlietlier piracy, 46 ; analogous to transposi- 
 tion, ih., 82, 83. 
 TRAVESTY of Mendelssohn's Lied in A, 45. 
 TRILBY, 7. 
 TRINIDAD, 111. 
 TUNE, See Melody. 
 TUNIS, 79. 
 
 UNITED KINGDOM, work first published in, 80. 
 
 UNITED STATES, copyright in, how obtainable, 121 et sequitur ; 
 presidential proclamation, 122 ; cases on the law of musical copy 
 and performing right, term and prolongation, 124 ; rights of 
 composer where no copyright obtained, 122 ; penalties, 123. 
 
 UNPUBLISHED WORKS, term of copyright in, 3; term of per- 
 forming right in, 3 ; whether they do not fall within some 
 Sections of the Act of 1842, quaere, 4, 53 ; and see Chap. ii. 
 generally, 6 et sequitur. 
 
 VALUE, test of piracy, 38. 
 
 VARIATIONS in Mozart's and Beethoven's sonatas, 42. 
 
 VERBAL TRANSFER, in America, of MS., 7. 
 
 VICTORIA, copyright in, 106 ; Statute of 1869, resembles Imperial 
 
 Act of 1848, 107 ; excepted from Austrian Convention, Appendix, 
 
 xxxiii. 
 
 "WALLS' ACT," 65 ; badly drafted, 66. 
 
 " WANDERING JEW," 41. 
 
 WORDS, non-copyright adapted to copyright air, copyright adapted 
 
 to copyright air, 31. 
 WRITING, where necessary, 7, 18. See ASSIGNxMENT. 
 
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