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THE

COPYRIGHT ACT, 1911

ANftOTAUD,




> A V



E. J. MAGGILLIVRAV



5/- Net



8iM"iii"«iw*'<wawwirwijto



■'^ ^i^-i




THE



COPYRIGHT ACT, 19U,

ANNOTATED.



WITH APPENDIX

CONTAINING

THE EEYISED CONVENTION OF BEENE.

BY

E. J. MAC GILLIYEAY, LL.B.,

OF THE INNER TEMPLE, BARRISTEU-AT-LAW,

AND MEMRER OF THE FACULTV OF ADVOCATES IX SCOTLAND.

AUTHOR OF " THE LAW OF COPYRIGHT, " " A DICEST OF THE LAW OF CdPYRIGU'l

AND "INSL'RANCE LAW."



LONDON:

STEVENS ANT) SONS, LIMITED,

119 & 120, CHANCEEY LANE,

i:alu iublishcrs.

li)]2.



/ ^

-i"^

^



INTRODUCTION.



The (Jopjrig-ht Act, 1911, cuusolidates and amends llie whole
law of copyright. When it is supplemented b}' legislation in
the self-governing dominions, and by Orders in Council and
Eeg-ulations of the Board of Trade, there will be a complete
code of copyright law for the whole of the British dominions.

Such a code has long- been desired by all those interested in the
legal rights of authors, artists and publishers. So long ago as
1878 a consolidation of the law was recommended by a Koyal
Commission, which carefully considered the whole subject, and
reported that they found the existing law " wholly destitute of
any sort of arrangement, incomplete, often obscure, and, even
when intelligible upon long study, so ill-expressed that no one
who did not give such studv to it could expect to understand
it."

The g'reat obstacle in the way of consolidation and amendment
has been the difficulty in coming to a satisfactory settlement with
the .self-governing dominions. Canada, in particular, has long-
demanded complete autonomy in the .matter of copyright legis-
lation, and it became increasingly obvious that if a consolidating-
Copyright Act was to be passed, the self-governing dominions
would insist on having- complete liberty to cut themselves adrift
from Imperial legislation if they so desired. Authors and pub-
lishers in this country were not unnaturally extremely nervous
of the possible consequences of Colonial autonomy. Each self-
governing dominion might, by a .manufacturing clause, exclude
English and American autliors from the enjoyment of (copyright
exce})t, upon condition tlmt the book should be reprinted from
type set within the dominion. This alone avouIcI bo sufficiently
serious, but there was the further possibility that if Canada
adopted a manufacturing clause as against the United States,
the latter might retaliate against Great Britain by excluding-
British subjects from- copyright in the United States upon auA'
condition. Unless the publishers in this country (;ould have
reasonable assurance that these things would not follow njioii
the passing- of a consolidating Act they were content to abide by
n 9.



252434



IV IXTRODUCTJON.

the status quo, which, on the whole, atforded a fairly satisfactory
protection throug'hout the British dominions.

It was thus that matters drifted until 1908, when the Berne
Convention was revised at Berlin, (jrreat strides had been made
in copyright legislation on the Continent since the last revision
of the Convention at Paris in 1896, and matters were now ripe
for an international agreement very much in advance of the
original Berne Convention. The British delegates accordingly
signed a treaty which demanded in many respects a larger pro-
tection for authors and artists than was accorded by English law.
It became obvious that if the revised Convention Avas to be
ratified by Great Britain, substantial alterations would have to
be made in our domestic legislation. The position Avas carefully
considered by a Departmental Committee of the Board of Trade
under the presidency of Lord Gorell, and the Committee in sub-
stance approved of the terms of the Revised Convention, and
recommended that it should be ratified and that legislation should
be passed to give effect to it in this country.

In order to solve the long-standing difficulty Avith the self-
governing dominions, the opportunity Avas taken of calling
together a subsidiary Copyright Conference of the Colonial dele-
g-afces Avho came to attend the Imperial Conference in the summer
of 1910. This Conference passed resolutions giA'ing general
approval of the Revised Convention, and recommending an Im-
])erial Copyright Act Avhich should apply to the Avhole of the
British Empire, but at the same time make the adoption of the
Act optional in the self-g-oA-erning dominions. The self-gOA-erning
dominions Avere to have an absolutely free hand, each in its OAvn
dominion, but provision Avas to be made that if any self-gOA^erning
dominion did not afford satisfactory protection to the works of
British subjects resident elsewhere, then the residents in that
dominion might be excluded from the enjoyment of Imperial
■copyright .

It Avas upon this basis that the Bill was drafted and the Act
passed .

The principal changes Avliieh Iho .A_ct Avill etlect upon the
existing laAv may be bricily summarised —

1 . Extension of the term of copyright to life and fifty years

(Subject to certain exceptions).

2. Provision that the last tAA-enty-five years of the ternr of copy-

right .shall be unassignable by the author during his life-
time.

;3. Provision that during the last twenty-five years any person
may reproduce a work Avithout cunsent on payment of a
ten per cent, royalty.



JNTKODUCTION. V

4. Exclusive riglit of draiuatisino' and trauslatiiig secured to
the author.

o . Dramatic works entitled to protection include pieces in dumb
show, ballets and cinematograph productions, and the copy-
right is infringed by the making or exhibiting of unautho-
rised cinematograph films.

G. Subject to the right in certain circumstances of making-
records upon payment of a royalty, the composer of a
musical composition gets the sole right of adapting his
composition for use upon mechanical instruments.

7. Subject to limitations in respect of remedies, and to the

right of making paintings, drawings, engravings or photo-
graphs of any architectural work, architectural works are
included among artistic works entitled to protection.

8. Taking of short pas.sages for insertion in school books is

permitted.

9. Subject to condiiion.s and limitations, an exclusive right of

oral delivery is conferred in respect of non-dramatic Avorks,
such as lectures, speeches and sermons.

10. Summary remedies, hitherto confined to infringements of
musical works, are made applicable to all classes of works,
and to infringements of performing rights, but the remedies
are not so complete as in the case of musical works.

11. The National Library of Wales is, subject to limitations,
included as one of the libraries entitled to free copies of
books from the publishers.

12. Copyright subsists from the time a Avork is created, the
condition of protection being, in the case of an unpub-
lished Avork, that the author is a British subject or resident,
and in the case of a published Avork, that it Avas first pub-
lished Avithin the dominions to Avhich the Act applies.

13. Common laAv right in unpublished Avorks is abrogated, but
in the case of a literary, dramatic, or musical Avork, or an
engraving, copyright subsists until i:)ublication notAvith-
standing the expiration of the period of life and fifty years,
and if publication is posthumous, then for fifty years after
publication.

14. No copyright vests in the proprietor of a collectiA'e work
unless the author is employed under a contract of service
or apprenticeship, or there is an assignment in Avriting;
and Avhen the copyright \'ests in the proprietor of a
]:»eriodical by reason of a contract of service or apjirentice-
ship, the author may restrain separate publication.



VI INTRODUCTION.

15. The passing- of the copyright by reason of the work having
been executed on commission is confined to the cases of
engravings, pliotographs and portraits.

IG. The self-governing dominions are given a free hand in
copyright matters. Each dominion may adopt or reject
the" Imperial Act as it pleases. Similarly, each dominion
may adhere to the Revised Convention or to the original
Berne Convention, or it may decline to adhere to either, and
so place itself in the position of a non-nnion country.

Taking it as a whole, the Copyright Act, 1911, is a valuable
measure in the interests of literature and art. It may be said
that the Government has made too many concessions, both to the
socialistic demands of the members of the Labour Party, who
believe that there should be no copyright, and to the demands of
the makers of mechanical instruments, who appealed to the
Government to save a great industry from possible bankruptcy.
It was obvious, however, after the hrst few days in Committee,
that it had become a question of passing the Bill with these con-
cessions or abandoning- it altogether. The Government were right
in choosing the former course. They have carried an Act from
which authors as a class will get much better protection for their
work than they have hitherto enjoyed. The Act will undoubtedly
simplify the law, and although there may be an increase of copy-
right litigation for the next few years, this will not continue after
a few doulitful points have been cleared up and laymen begin
to understand the salient features of the new law. The self-
governing- colonies have at last got their desire in the matter of
copyright autonomy, and there is good reason to believe that
it will jiot be exercised so as in any way to prejudice the market
for English books either in Canada or the United States. That
all this has been accomplished Avhere so many before them have
failed is due ver}- largely to the courageous statesmanship of
Mr. Sydney Buxton and Sir John Simon, to both of Avhom all
authors must for ever owe a deep debt of gratitude for (he
splendid work which they have done.



E. J. MACGILLIVEAY



Temi-lk Gaedexs, e.g.
JaiHiani, 1912.



( ^'ii )



CONTENTS.



PAET I. — Imperial Copyright.
Bights.

SECT. PAGE

1. Copyright _______i

2. Infringement of Copyright - - - - - 26

3. Term of Coj^y right - - - - - -45

4. Compulsory Licences - - - - - - 51

5. Ownership of Copyright, &c. - - - - - 52

Civil Remedies.

6. Civil Remedies for Infringement of Copyright - - - 72

7. Eights of Owner against Persons possessing or dealing with

Infringing Copies, &c. - - - - - 82

8. Exemption of Innocent Infringer from Liability to pay Damages,

&c. - - - - - - - - 86

9. Restriction on Remedies in the case of Architecture - - 88

10. Limitation of Actions - - - - - - 90

Summary Remedies.

11. Penalties for dealing with Infringing Copies, &c. - - 92

12. Appeals to Quarter Sessions _ _ _ - _ 104

13. Extent of Provisions as to Summary Remedies - - - 105

Importation of Copies,

14. Importation of Copies - - - 106

Delivery of Books to Libraries.

15. Delivery of Copies to British Museum and other Libraries - 112



Vlll CONIKNTS.

Special Prorisions as to certain Worhs.

SECT. PAGE

16. Works of Joint Authors - - - - - -117

17. Posthumous Works - - - - - - 120

18. Provisions as to Government Publications _ _ _ 123

19. Provisions as to Mechanical Instruments . _ _ 125

20. Provision as to Political Speeches - - - - 133

21. Provisions as to Photographs - - - - - 133

22. Provisions as to Designs registrable under 7 Edw. 7, c. 29 - 13(5

23. Works of Foreign Authors first published in Parts of His

Majesty's Dominions to which Act extends _ _ - 138

24. Existing Works - - - - - - - 139

Application to British Possessions.

25. Application of Act to British Dominions _ _ _ 146

26. Legislative Powers of Self-governing Dominions - - 147

27. Power of Legislatures of British Possessions to pass Supplemental

Ijegislatioii - _ - -. 148

28. Ai)plication to Protectorates _____ 149

PAPiT II.— IXTERNATIOXAL COPYRIGHT.

29. Power to extend Act to Foreign Works - - - - 153

30. Application of Part II. to British Possessions _ _ _ I55



PAPiT III. —Supplemental Proyisioxs.

31. Abrogation of Common Law Eights - - - - 159

32. Provisions as to Orders in Council _ - _ _ 160

33. Saving of University Copyright - - - - - 160

34. Saving of Comi:)ensation to certain Libraric^s - - - 161

35. Interpretation - - - - - - -162

36. Repeal - - - - - - - - 166

37. Short Title and Commencemont - - - 167
SCIFEDULES - - - - 168



APPENDIX.

Eevtsed Convention of P>erne _ _ _ _ - 171



COPYETGHT ACT, 1911

(1 & 2 Geo. 5, ch. 46.)



An Act to amend and consoUaate the Law relating to
Copyright. [16tli December 1911.]

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 : —

PART I.

Imperial Copyright.

Rights.

1. — (1) Subject to the provisions of this Act, §1(1).
copyright (ft) shall subsist throughout the parts Copyright.
of His Majesty's dominions to which this Act
extends (/») for the term herein-after mentioned (c)
in every original literary dramatic musical and
artistic work(r/), if —



(«) Sect. 1 (2).

(i) Sects. 25 (1), 26 (1), 27, 28, 35 (1) ("Self-governing dominion").

(c) Sects. 3, 16 (1), 17, 19 (1), 21.

[d) Sect. 35 (1) ("'Literary work," "Dramatic work," "Artistic
^ork").

M. B



2 Copyright Act, 1911.

§1(1). (a) in the case of a published (>) work, the

work was first publislied within such
parts of His Majesty's dominions as
aforesaid (/) ; and
(b) in the case of an unpublished work (g)^ the
author (/z) was at the date of the making
of the work a British subject or resi-
dent within such parts of His Majesty's
dominions as aforesaid (/) ;

but in no other works, except so far as the pro-
tection conferred by this Act is extended by
Orders in Council thereunder relating to self-
governing dominions to wdiicli this Act does not
extend (/r) and to foreign countries (/).

a His The Act will be in fore© [with the exception of ^vo-

Majesty's visions expressly restricted to the United Kingdom (m)
wSXs*' ^^^ subject to the right of a British possession to pass
ActextencLs." supplemental legislation relating to (i) procedure and
remedies (w); (ii) works of authors resident in such
possession; (iii) works first published in such posses-
sion (o)] in —

(1) The United Kingdom (w);

(2) All British possessions other than self-governing

dominions (p);

(3) Self-governing Dominions, that is to say, Canada,

Australia, New Zealand, South Africa and



(e) Sects. 1 (:i), 31, 35 (2).
(/•) Sects. 23, 25 (2), 3o (3).
(^7) Sects. 1 (3), 31, 35 (2).
Ui) Sects. 16 (2), 19 (1), 21.
(i) Sect. 25 (2), 26 (3), 35 (4) (5).
{k) Sect. 26 (3).
[l) Sect. 29.

[m) Sect. 25. The.se are sects. 11 — 13 (Summary Remedies) aud
sect. 15 (Delivery of Books to Libraries).
[n) Sect. 25.
\o') Sect. 27.
{p) Sects. 25, 26, 35 (1) (" Self-governing dominion").



Rights. '<

Newfoundland, if the self-governing dominion § 1 (1).
has by its legislature declared the Act to be in
force therein (and such declaration has not been
repealed (p));
(4) Protectorates, including Cyprus, to which the Act
may be extended by Order in Council (q) .

Existing law. — The Act of 1842 relating to books extends
tlirougliout the British dominions, and the rights and remedies
conferred by the Act are not affected by any colonial legisla-
tion (?'), except in so far as any British possession may have passed
an Act or Ordinance relating to works first published in such
possession (s). The Act of 1862 relating to artistic works extends
to the United Kingdom only ; and paintings, drawings and photo-
graphs are accordingly unprotected throughout the British posses-
sions, except in so far as they are protected by colonial legislation {t).
The Acts relating to engravings and probably that relating to
sculpture are also confined in their operation to the United
Kingdom. Pictures which are first published in a book are, how-
ever, protected as part of the book, and therefore it has always
been possible to obtain protection for drawings, paintings and
engravings throughout the British dominions by first publishing
them in the form of a book (m).

An attempt was made in Grand Committee of the "Every
House of Commons to strike out the word "original" original
on the ground that derivative works such as translations dramatic
or engravings would be excluded. It is clear that the musical and
adjective is properly inserted here. " Original " as applied artistic
to a work merely indicates that it must contain some ^"^
substantial feature which is not copied from a previously
existing work. If a work is derivative and there is some
novel feature which distinguishes it from the work from
which it is derived, that novel feature constitutes the
originality and receives protection, and the novel feature
alone is protected in so far as the derivative work is
concerned .

The reproduction of spoken words in the form of a



(p) Sects. 25, 26, 35 (1) (" Self-governing dominion ").

{q) Sect. 28.

(r) Smiles v. Belford (1876), 1 Out. A. R. 436 ; Jfacmilhiu v. Sham.sul,
4t. (1895), Ind. L. R. 19 Bomb. 557.

(a) Int. Cop. Act, 1886, s. 8 (4).

(C) Graves v. Gorrie, [1903] A. C. 496.

{u) Bogue v. Houhton (1852), 5 De G. & S. 267 ; Jlap!" v. J/tnior Arnii)
and Navy Stores (1882), 21 Ch. D. 369; Davis v. Benjamin, [1906] 2 Ch.
491.

b2



1(1).



All works
protected in
whatever
form they are
produced.



Summary of

different

classes of

works

specifically

protected.



Copyright Act, 1911.

written report, and the recording of musical sounds upon
a perforated roll or gramophone record constitute in each
case the making of an original work, the originality con-
sisting in the new form in which the words or music are
produced (x).

An important feature of the new Act is that every
literary, dramatic, musical, and artistic work is protected
without making any specified physical form of produc-
tion a condition precedent to protection and, indeed, with-
out demanding that the work shall be clothed in any
physical form at all. Thus, a literary work will no longer
require to be embodied in the form of a "book" before
receiving statutory protection, and it may be protected
even although it exists only in the form of spoken words
which the author has not committed to paper.

The following are the classes of works which are
specifically referred to as receiving protection, but the
Act is so framed that the list is illustrative and not
necessarily exhaustive. The classes of works indicated
in italics receive protection for the first time : —

Literary works —

Maps.

Charts.

Plans.

Tables.

Records, perflated rolls, c(c.

Lectures —

Addresses .
Speeches.
Sermons.
Dramatic works —

Pieces for recitation.

Choreographic works.

Entertainments in dumb show.

Cinemuto graph productions .

B.ecords, perforated rolls, etc.
Musical works —

Records, perforated rolls, etc.
Artistic works —

Paintings.



{x) Waller r. lane, [1900] A. C. 539.



Rights. 5

Drawings. § 1 (i).
Works of sculpture —

Casts.

Models.
WorJrS of artistic crajtsmamhip .
Architectural works of art.
Engravings —

Etchings.

Lithographs.

Wood-cuts.

Prints.
Photographs.

In the case of a published work the sole condition pre- Condition
cedent to protection will bo first publication, which in- precedent to
eludes simultaneous publication (that is, publication ^f a published
within fourteen days of publication elsewhere (?/)), and work,
such first publication must be made either —

(1) Within His Majesty's dominions to which the Act

extends;

(2) Within a self-governing dominion in respect of

which the Secretary of State has given a certi-
ficate that such dominion gives to British sub-
jects generally rights substantially identical
with those conferrrd by the Act(£');

(3) Within a self -governing dominion in respect of

which an Order in Council has been made ex-
tending the benefit of the Act thereto (a) ;

(4) Within a foreign country in respect of which an

Order in Council has been made extending the
benefit of the Act thereto (&).
The Crown has power by Order in Council to exclude
from protection, under the above provisions, the works
of subjects or citizens of any foreign country which does
not give adequate protection to the works of British
authors (c) .

The right of foreign authors to demand protection by
first publication is based on Article 6 of the Berlin Con-



(y) Sect. 35 (3).
(z) Sect. 25 (2).
(a) Sect. 26 (3).
(4) Sect. 29 (1) (a).
{c) Sect. 23.



Copyright Act, 1911.

1 (1). vention, which provides that authors of non-uuion
countries shall be protected throughout the union if they
first publish in a union country {d) .

If the Crown ever exercises the power conferred upon
it by sect. 23, it will be violating the treaty obligation
contained in Article 6 of the Berlin Convention and in
Article 3 of the Berne Convention.

Existing law. — Statutory protection in the case of books depends
upon first publication within the British dominions or within a
foreign country in respect of which an Order in Council has been
made (e). First publication includes simultaneous publication (/),
but there is no latitude of fourteen days. Publication must be on
the same day in order to be deemed simultaneous with publication
elsewhere (</).

In the case of serial works each jjai't must be first published in
order to secure copyright in that part (/;).

In the case of published books first publication is the only
condition precedent to j)rotection (i).

Under the Fine Arts Act, 1862, statutory j^rotection in respect of
paintings, drawings and photographs does not depend on publica-
tion (A). Copyright vests on making, and is conditional upon the
author being a British subject or resident within the dominions of
the Crown. The copyright will cease if the work is first published
outside the British dominions, unless protection is then given by
international pro-visions (/). Under the Berne Convention and
Act of Paris foreign artists are entitled to copyright under the
Fine Arts Act, 1862, (1) in an unpublished work if made by a
subject or citizen of a foreign country which is a party to the



(d) Bedin. Ai-t. VI.

[e] SoHflcdf/f V. low (1868), L. R. 3 H. L. 100 ; Jeferi/s v. £oosei/ (1854),
4 H. L. C, 815; Boosei/ v. Fardaij (1849), 4 Ex. 145; lover v. Davidson
(1856), 1 C. B. (N. S.) 182 ; Chappell r. Purdat/ (1845), 14 M. & W. 303 ;
Cocks V. Purday (1848), 5 C. B. 860; Int. Cop. Act, 1886, s. 8 (1); Int.
Cop. Act, 1844. s. 19.

(/) Cocks V. Parday (1848), 5 C. B. 860; Buxton v. J<ime.'< (1851), 5 De G.
& S. 80.

{g) Boosey v. Purday (1849), 4 Ex. 145, 158.

(/() Rrid V. Maxucfl (1S86), 2 T. L. R. 790.

((') The law was so stated in the opinion given by the law officers in
this country when, in 1891, the United States asked for an assurance that
American subjects received satisfactory protection in England. Doubts
had previously existed (1) as to whether printing within the dominions
was necessary [Jeffenis v. Booscy (1854), 4 H. L. 0. 815, 983 : Cloiioiti v.
TFalker (1824), 2 B. & C. 861, 867) ; (2) as to whether British nationaUty
or residence on the part of the author was necessary [Jep'erys v. Boosey
(1854), 4 H. L. C. 815 ; Routledge v. Lou: (1868), L. R. 3 H. L. 100 ; Low
V. Wurd (1868), L. R. 6 Eq. 415).

(A-) Fine Arts Act, 1862, s. 1 ; Boudcn Bros. v. Amalgamated Pictorials,
[1911] 1 Ch. 386.

[1] Int. Cop. Act, 1844, s. 19.



Rights.

copyright union; (2) in a published work if first published in a 8 1 fn
foreign country which is a nartv to the convria-ht union (m). ^ ^ ''



iign country which is a party to the copyright union {i

An unpublished work is entitled to protection if at Condition
the date of making- the work the author was— ?oThe^^?otec

(1) A British subject (not being resident within a self- tionof an' *^'^'

governing dominion which has neither adopted unpublished
the Act nor given adequate protection to the "'*'''^-
works of British subjects generally) (w);

(2) Eesident or domiciled within His Majesty's

dominions to which the Act extends;

(3) Resident or domiciled within a self-governing

dominion in resj)ect of which the Secretary of
State has given a certificate (o) ;

(4) Eesident or domiciled within a self-governing

dominion in respect of which an Order in
Council has been made extending the benefit of
the Act thereto (p) ;

(5) A subject or citizen of a foreign country in respect


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