CHAPTER X

INTERNATIONAL COPYRIGHT

=Works first produced in His Majesty's Dominions= are protected in those foreign countries with which there is a treaty for the mutual protection of literary and artistic rights. These countries are the signatories of the Berne Convention,[1041] and Austria-Hungary, with which there is a separate treaty on similar lines. Generally it may be presumed that each of these countries has by domestic legislation given full effect to the international agreement, and that all works which are protected in this country, and would have been protected if first produced in the foreign country in question, will receive the same protection there as would be accorded to a work first produced in such foreign country. The protection, however, must be sought in the foreign country and not here. The Courts of this country will not grant any redress for the infringement of a British author's copyright in a foreign State, even although such infringement be perpetrated by a British subject resident in England.[1042]

=Works first produced in foreign countries with which this country has no treaty= are in no way protected from infringement in the United Kingdom, unless they are produced within His Majesty's dominions simultaneously with their production elsewhere.[1043]

=Works first produced in foreign countries with which this country has a treaty= are protected from infringement in His Majesty's dominions by the domestic legislation of the United Kingdom.

Before December 6, 1887, foreign works were protected by virtue of the International Copyright Acts of 1844, 1852, and 1875, and numerous Orders in Council, now revoked, giving effect to treaties with various foreign States. As the subsequent provisions under the International Copyright Act, 1886, are retrospective, it is unnecessary to examine the old law in any detail. On one important point, however, it will be necessary to mention some of the provisions of the International Copyright Acts which were applicable before December 6, 1887, since the subsequent legislation, in giving protection to works which were produced before that date and were then unprotected, enacts that its retrospective effect shall not prejudice rights and interests lawfully acquired before it came into operation. The law before 1887 has to be examined to determine what these rights and interests are.

Since December 6, 1887, the rights of foreign authors in His Majesty's dominions have depended on the provisions of the International Copyright Acts of 1844, 1852, 1875, and 1886, the Berne Convention of 1887, and an Order in Council of November 28, 1887. To these are now added the Additional Act of Paris, 1896, and an Order in Council of March 7, 1898. These may now all be read together, and apply to all foreign works first produced in the countries to which they are applicable. It should be mentioned here that Austria-Hungary has a convention of its own, and in dealing with works produced there that convention and the Orders in Council giving it effect must be substituted for the Berne Convention and Additional Act of Paris and the Orders in Council above mentioned. Norway has not become a signatory of the Additional Act of Paris, and therefore in dealing with works produced there the Berne Convention must be read as unmodified by the Additional Act.

It is proposed to deal here in detail with the provisions of the Acts, Orders in Council, and treaties as they apply to the majority of the foreign countries, _i. e._ those which are signatories of the Berne Convention and the Additional Act of Paris. As regards Norway and Austria-Hungary the law differs very slightly. The law applicable to Norway can easily be ascertained by reading the Berne Convention without the Additional Act. The law applicable to Austria-Hungary is almost identical, except that it affords protection in the United Kingdom and all colonies except Canada, the Cape, New South Wales, and Tasmania, and not in the whole of His Majesty's dominions, as in the case of the signatories to the Berne Convention.

The countries whose works are protected in His Majesty's dominions are as follows:

Germany } Belgium } Spain } France } Haiti } Signatories of the Berne Italy } Convention, 1887, and Additional Switzerland } Act of Paris, 1896. Tunis } Monaco } Luxembourg } Japan } Norway Signatory of the Berne Convention, 1887. Austria-Hungary Having a separate convention, April 24, 1893; given effect to by Orders in Council, April 30, 1894, and February 2, 1895.

=What Foreign Works are entitled to Protection.=--Those works are protected which are first produced in any of the foreign countries of the Union, and which--

(_a_) Are protected by the law of the country of origin, and: (_b_) Would have been protected in the United Kingdom if first produced in the United Kingdom.

_Produced._--"Produced" means, as the case requires, published or made, or performed, or represented,[1044] or, in other words, the act which is deemed to vest the author or publisher of the work with exclusive rights of reproduction or publication. Thus in the United Kingdom a book or an engraving or sculpture is produced when it is first published. A painting is produced when it is made. A musical or dramatic work as regards the performing right is probably produced[1045] when it is first performed or represented. But it would seem that, in considering when a work is produced, the law of the foreign country or countries in question must first be inquired into, and it will be considered to be produced in the country where an

## act is done which first invests it with protection in the nature of

copyright.

If a work is produced simultaneously in two or more countries of the Union, it is deemed to be first produced in that country where the term of copyright accorded to it is shortest. And if a work is produced simultaneously in His Majesty's dominions and in one or more of the foreign countries of the Union, and according to the above rule is deemed to be first produced in a foreign country, it will be protected under the International Acts and not under the Copyright Acts applicable to works first produced in the United Kingdom, and _vice versâ_. If a work is produced simultaneously in a foreign country not within the Union and in a foreign country within it, it would no doubt be deemed to be first produced in the foreign country within the Union, although there is no legislative enactment to this effect.

_Character of Work._--In order to obtain protection in this country, a foreign work must be such as is protected in the country of origin.[1046] In each case, therefore, it is necessary to inquire into the laws of the country where the work is deemed to have been first produced.[1047]

The work must also be such as would have obtained protection if first produced in the United Kingdom,[1048] and it is therefore necessary in each case to inquire also into the law of this country.[1049]

_Unpublished Works._--Unpublished works of foreign authors are expressly included in the convention as works entitled to protection.[1050] If, therefore, they are protected in the country of origin, and would be protected if they had been the works of British authors, they are entitled to protection within His Majesty's dominions. In the case of unpublished works the country to which the author belongs is considered the country of origin.[1051]

_Special Provisions._--There is also express stipulation in the conventions as to the inclusion of the following works:

Posthumous works:[1052] Authorised translations (to be protected as original works):[1053] Photographic works and works produced by an analogous process:[1054] Choregraphic works.[1055]

=Works produced in Foreign Countries before December 6, 1887.=--As is explained above the international treaties and domestic legislation in this country are retrospective, and apply to all works whenever produced. The International Act, 1886, sec. 6 (1),[1056] provides that--

"When an Order in Council is made under the International Copyright Acts with respect to any foreign country, the author and publisher of any literary or artistic 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 and the said Order had applied to the said foreign country at the date of the said production."

The Berne Convention, article 14, provides that--

"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."[1057]

It was suggested that these retrospective provisions only applied to works produced between the date of the Act of 1886 and December 6, 1887, _i. e._ the date at which the Order in Council of November 28, 1887, came into operation.[1058] Charles, J., however, refused to accept such a construction, and said that he felt no doubt that section 6 of the International Copyright Act, 1886, applied to all literary and artistic works produced before the date at which the Order in Council came into operation, whether they were produced before or after the passing of the Act.[1059]

In _Lauri_ v. _Renad_[1060] it was held by the Court of Appeal that when under the older law a right of translation in this country had existed, and had expired by lapse of time, the Act of 1886 would not operate to revive such a right, even although the rights of reproduction and translation still subsisted in the country of origin. This is generally thought to be an unsound decision, as the proper test in such cases is whether the right has fallen into the public domain, not in this country but in the country of origin.

=Formalities required in case of Foreign Works.--=

_In the Country of Origin_--

All such formalities must be observed as are necessary to entitle to protection under the domestic law of such country.[1061]

_In the United Kingdom_--

1. Registration or delivery of copies to the libraries is unnecessary.[1062] 2. Musical works must bear a notice of reservation on each authorised copy, otherwise the performing right will be lost.[1063] 3. Whether other formalities such as name and date of publication on an engraving,[1064] name and date on sculpture,[1065] are necessary _quære_.

Before 1886 registration and delivery of copies of a foreign work was required by the Act of 1844[1066] and various Orders in Council in pursuance thereof. The Act of 1886, however, enacts[1067] that the provisions of the Act of 1844 as to registration and delivery shall not apply to works produced in a foreign country except in so far as provided by the Order in Council referring thereto. The Order in Council of 1887[1068] makes no provision as to registration and delivery, and revokes all the previous Orders in Council which did. In _Fishburn_ v. _Hollingshead_[1069] the question came before the Court whether since 1886 any registration or delivery was necessary. Stirling, J., held that although none of the formalities prescribed by the International Copyright Act of 1844[1070] need be observed, yet a foreign work must comply with the provisions of the Copyright Acts as to registration and delivery applicable to works first produced in this country. His _ratio decidendi_ was that a foreign work was only entitled to the protection afforded to natives,[1071] and the Act of 1844[1072] provided that all and singular the enactments of the Copyright Acts in this country should apply to foreign works in such and the same manner as if such works were published in the United Kingdom. Charles, J., in _Hanfstaengl_ v. _Holloway_[1073] differed from this view, and finally the Court of Appeal in _Hanfstaengl_ v. _American Tobacco Company_[1074] held that no registration in this country was necessary. The ground of this decision is that the enactments of 1844 as to registration of foreign works superseded the enactments of 1842, and when the provisions of 1844 were repealed the provisions of 1842 did not revive. This reasoning, which appears to be undoubtedly sound, applies equally to the provisions as to delivery of copies. It does not, however, apply to the question whether such formalities as the name and date of publication on an engraving are necessary. At present the position seems to be this. The reasoning of Stirling, J., in _Fishburn_ v. _Hollingshead_[1075] equally applies to the formalities as to name and date on engravings and sculpture as it does to registration and delivery. The judgment of Stirling, J., was overruled in _Hanfstaengl_ v. _American Tobacco Company_[1076] in the Court of Appeal, but on grounds which do not apply to these formalities. As to them, therefore, the judgment of Stirling, J., stands. It is very doubtful whether this is the correct view of the law, but it is submitted that until _Fishburn_ v. _Hollingshead_[1077] is further overruled the law is that formalities under heading 3 _supra_ are necessary. In _Avanzo_ v. _Mudie_[1078] it was held that a foreign print could not claim copyright under 7 & 8 Vict. c. 12, unless the date and name were engraved thereon as required by 8 Geo. II. c. 13. Mr. Scrutton, whose opinion in these matters carries great weight, thinks that these formalities are not required.[1079] As a matter of expediency they should always be observed where practicable.

=Who are entitled to sue in respect of a Foreign Work.=--The author of a foreign work or his assignee is probably entitled to sue in the case of all foreign works which are protected in this country.[1080]

The publisher of a foreign work published anonymously or pseudonymously is entitled to sue if his name is indicated on the work.[1081]

=Evidence of Title.=--Where the name of the author is indicated on a foreign work or in the case of an anonymous or pseudonymous work the name of the publisher, such author or publisher is, in the absence of proof that he is disentitled, entitled to sue in respect of such foreign work.[1082]

An extract from a register, or a certificate or other document authenticated by the official seal or signature of a minister of state of the foreign country of origin, or of a British diplomatic or consular officer, lawfully acting in such foreign country, is admitted as _primâ facie_ evidence of the owner of the copyright.[1083]

=Protection afforded to Foreign Works.=--Generally a foreign work is accorded--

1. The same right of copyright and during the same period as if the work had been first produced in the United Kingdom:[1084] but 2. No greater right or longer term of protection than it enjoys in the country of origin.[1085]

Section 10 of the International Copyright Act, 1844,[1086] provides that all copies of foreign books in which there is copyright under the International Acts, if printed or reprinted in any foreign country _except the country of origin_, shall not be imported into the British dominions without the consent of the proprietor. It has been held,[1087] however, that this section does not supply a complete code as to the importation of copies of a foreign book, and that copies printed in the country of origin will also be prohibited in the same way as if the book had been first published in the United Kingdom. Section 3 of the International Copyright Act, 1844, applies to foreign works, _inter alia_, the provisions 5 & 6 Vict., sections 15 and 17, which prohibit the importation of any copies printed outside the British dominions. Section 10 was held not to curtail the general application in section 3 of the provisions of the Copyright Act, 1842, to foreign books.

As to certain foreign works which are dealt with below, there is express provision in the International legislation which results in giving such foreign works a narrower right or shorter term than they would have if first published in this country. Where there is no express limitation, the above general rules apply. The law of both the country of origin and of the United Kingdom must be examined, and the right given will be limited according to the law which affords least protection. Where, however, according to this rule there is a right, the Courts here will give the same remedies as they would extend to the author of a work first published in the United Kingdom. Thus in _Baschet_ v. _London Illustrated Standard_,[1088] Kekewich, J., refused to consider whether a French Court would or would not award penalties for infringement.

_Works published before December 6, 1887_, are protected, except in so far as such protection may prejudice rights or interests arising from or in connection with works lawfully produced before, and subsisting and valuable at, that date.[1089]

This limitation is introduced by the retrospective section of the Act of 1886, which enacts 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."

The following are some of the classes of literary or artistic works which were not protected before 1886 but to which the retrospective section and its saving clause applies:

i. Works not registered in this country under the International Copyright Act, 1844, section 6.[1090] ii. Works which had not acquired the translating right under the International Copyright Act, 1852, sections 2, 4, 8. iii. Dramatic works, as to the liberty to make fair imitations or adaptations to the English stage under the International Copyright Act, 1852, section 6.

"Lawfully Produced" means that the work has been produced without contravening any right existing at the date of its production.[1091]

"Rights" and "Interests" are to be distinguished, the latter word bearing a wider interpretation than the former. Right does not mean the right to reproduce in common with all mankind, but right in the strict legal sense of the term under the English Copyright Acts, _i. e._ an exclusive right of property.

When any capital has been embarked in the production of a work, and the publisher depends on the sale of copies in stock or on the proceeds of a future edition to recoup himself for his outlay, there is clearly an interest although there may be no right. Where a bandmaster had purchased a copy of a French musical composition and instructed his band to perform it, he was held to have such an interest as would entitle him to continue performing it after the French composer had acquired protection under the Act of 1886.[1092] Even where no capital has been embarked, if the publisher has a special interest as distinct from the rest of the public in the reproduction of the work, he has an interest within the meaning of the section.[1093] Thus where a firm had adopted a German picture as a trade mark for their candles, they were held to have such an interest in the reproduction as would constitute a good defence to an

## action for infringement of copyright acquired under the retrospective

operation of the Act of 1886.[1094] It has been suggested that not only the interests of the lawful producer will be safeguarded, but also interests arising in a third person from or in connection with such production, and this seems to be sound.[1095]

_Translating Right_ expires if not exercised within ten years.

The exclusive right of translation is expressly given to the foreign author by the Act of 1886 and the Additional Act of Paris for the full term of his copyright in the original work, but if an authorised translation in the English language is not published after the expiration of ten years next after the end of the year in which the work was first produced the translating right of the author shall cease.[1096] If a book is published in numbers, the ten years run from the date of publication of the last part.[1097] When a

## book is composed of a number of volumes, each volume is considered

as a separate work.[1098] A translation in order to preserve the translating right must be full and substantial.[1099] A translation might be such as, if made without the consent of the author, would constitute a piracy, and yet not be such a translation as is required by the Act--

"What is required is that the English people should have the opportunity of knowing the foreign work as accurately as it is possible to know a foreign work by the medium of a version in English."[1100]

_Articles in Newspapers and Periodicals._[1101]--Articles, not being serial stories or tales, appearing in a newspaper or periodical in a foreign country, may be republished or translated in a newspaper or periodical in this country without the consent of the owner of the copyright, provided--

(_a_) In the case of articles of political discussion, the news of the day, or miscellaneous information, the source from which the same is taken be acknowledged. (_b_) In the case of articles relating to any other subject, the source from which the same is taken be acknowledged, and the author has not signified his intention in a conspicuous part of the newspaper or periodical of preserving the copyright and right of translation.

_Photographic Works._--The Additional Act of Paris runs as follows: "It is understood that an authorised photograph of a work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the Berne Convention, and by the present Additional Act, for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights."[1102]

It would seem, therefore, that photographs of protected works of art are not protected as original works, and that, whenever produced, their protection stands and falls with the right in the original work. Other photographs, including photographs of unprotected works of art, are protected as original works.

_Performing Right in Dramatic or Dramatic Musical Works._--Exclusive performing right in dramatic or dramatico-musical works subsists during the existence of the exclusive right of translation. If the translating right is allowed to fall into the public domain by non-exercise within ten years, the performing right falls with it.[1103]

There is not now as formerly any right in the public to make fair imitations or adaptations to the English stage.[1104]

_Express Provision as to Particular Kinds of Infringement._--The Berne Convention, article 8, provides that the question of the right of extract is to be decided by the legislation of the different countries of the Union, or by special arrangement between them. There is no special arrangement as to this with the United Kingdom, therefore the law as to extract and quotation applicable to works produced in this country applies.

Article 10 of the Berne Convention enacts that indirect appropriations such as adaptations and arrangements are included among illicit reproductions when they do not bear the character of original work. Here also, therefore, the law is similar to that applicable to works produced in this country.

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