PART L bequest, or, in case of intestacy, to be subject to the same CHAPTER III. laws of distribution as other personal property, and in Scotland is to be deemed personal and movable estate, and even before that statute it was always treated as personal property, and aliens can acquire personal property; and the opinion expressed by Shadwell, V.C., in Bentley v. Foster (a) was referred to, that "if an alien friend wrote a book, whether abroad or in this country, and gave the British public the advantage of his industry and knowledge, by first publishing the work here, he was entitled to the protection of the laws relating to copyright in this country." And in Chappell v. Purday (b) Lord Abinger, C.B., had declared himself of opinion that a foreigner, who is the author of a work unpublished abroad, might communicate his right of property therein to a British subject, at least for the period prescribed by the statute of Anne. Another decision in favour of the doctrine that a foreigner, though resident abroad at the time of publication, may have copyright in this country if the first publication takes place here, was pronounced by the Court of Queen's Bench in Boosey v. Davidson, (c) where an action was brought for infringement of copyright in certain operatic airs composed by a foreigner and alleged to have been first printed and published in England. The court stated no other ground for their decision than the judgment of the Court of Common Pleas in Cocks v. Purday. The Court of Exchequer in Boosey v. Purday (d), decided in the same year as Boosey v. Davidson, refused to follow the decision in that case and in Cocks v. Purday. The plaintiff in Boosey v. Purday was the assignee of certain airs of an opera which Signor Ricordi had purchased from the composer Bellini, a foreigner, and the action was brought for an infringement by the defendant of the plaintiff's copyright in the dramatic airs. The court held that a foreign author residing abroad, who composes a work abroad, and sends it to this country, where it is first published under his authority, acquires no copyright therein; neither does a British subject to whom such work is assigned by the foreign author gain any such right. Pollock, C.B., in delivering the judgment of the court, said, "We perfectly concur with the Court of Common Pleas, that a foreigner in amity with this country may sue for the infringement of any of his rights, a point which we never doubted; but we thought it clear that a foreigner had no copyright in (a) 10 Sim. 329. (c) 13 Q. B. 257. (b) 4 Y. & Col. 495. upon PART L England by the common law, and that his right must depend wholly upon the construction of the statutes, and if CHAPTER IIL they did not give it to him he could have no right at all. And, with respect to the construction of the statutes, we thought, if there were no binding authorities to the contrary, that the Legislature did not mean to confer a copyright on any but British subjects. . . . . Our opinion is that the Legislature must be considered prima facie to mean to legislate for its own subjects only, in some sense of that term, which would include subjects by birth or residence, being authors, and the context or subject matter of the statutes does not call upon us to put a different construction them." And even before the decision in Cocks v. Purday, Shadwell, V.C., in Delondre v. Shaw, (a) though not dealing in that case with the question of copyright, remarked that "The court does not protect the copyright of a foreigner." (b) The law on the subject of the copyright of foreigners, Jeffreys v. Boosey. which these conflicting decisions had left in considerable doubt, appeared to be finally determined by the House of Lards in the case of Boosey v. Jeffreys, after all the judges had been called on to deliver their opinions. The facts of that case were as follow: (c) Bellini, the celebrated musical composer, an alien friend, composed, while living at Milan, an operatic work "La Sonnambula," in which by the laws there in force, he had a certain copyright. He there on the 1th of February, 1861, by an instrument in writing, bearmy date on that day, made an assignment of that copyright Giovanni Ricordi, which assignment was valid by the laws there in force. Ricordi afterwards came to this country, and on the 9th of June, 1831, by deed assigned, for valuable oderation, the copyright in the said work to Boosey, his -Les utors, administrators, and assigns, but for publication in United Kingdom only. Boosey printed and published the kin this country before any publication abroad. Then , without any licence from Boosey, printed and pubthe same work in this country. Boosey brought an t: n against Jeffreys for the infringement of his copyright, d the action was tried before Rolfe, B. (subsequently Lord worth), who directed the jury, in accordance with the sion in Boosey v. Purday, to find a verdict for the deflint Jeffreys. The matter came, on bill of exceptions, fre the Court of Exchequer Chamber. That tribunal zounced the direction given by the judge at the trial, to wrong. A writ of error was then brought in the House 1) 2 Sim. 240. (b) See Ollendorf v. Black (4 De G. & S. 209), › See the statement submitted to the judges (4 II. L. Cas. 843). PART I. judges. of Lords, where the question was argued at great length, CHAPTER IIL and the judges were asked to deliver their opinions, which ten of them did in an elaborate and exhaustive manner and at considerable length. Several questions were submitted to them by the House of Lords, but we have only to deal at present with one of the topics that engaged their attention, i.e., whether a foreigner who is not resident here at the time of the publication here of a work composed by him has any copyright in such work. On this subject the judges were divided in opinion, as might have been expected from the opposite decisions which their respective courts had already pronounced. Four judges were of one opinion, and six of Opinions of the another. Williams, Erle, Wightman, Maule, Coleridge, and Crompton, JJ., pronounced in favour of the proposition that a foreign author might gain an English copyright by publishing in England before any publication abroad, though resident abroad at the time of publication, on the grounds that there were no words in the Act, 8 Anne, c. 19 (the first Copyright Act), which confines its benefits to British subjects, by birth or residence, though the context and other provisions of the Act showed that the publication must be British; that the title of the Act ("An Act for the encouragement of Learning, &c.,") did not require such a construction of its provisions, and Parliament might legislate for foreigners in respect of the legal consequences in Great Britain of an act done there; that the nature of the property was analogous to property in other personalty, and that an alien's copyright was analogous to the right which he possessed while residing abroad to prohibit the publication here of words defamatory of his character; (a) that to limit the Act of Anne to native authors would be to lessen its beneficial operation; that first publication in England of a work by a foreign author was not a matter ultra vires, therefore, the municipal law might deal with it; that the gift by Parliament of copyright to a foreign author publishing in this country was within the province of Parliament, it was a dealing with British interests and a legislation for British persons; that it would be absurd to lay down the doctrine that a foreign author should have no copyright if he remained at Calais whilst his work was being published in England, but that he should gain that copyright if he crossed over to Dover, and there gave directions for and awaited the publication of his work; and the following harsh consequence would also result from the doctrine of the necessary presence in the United Kingdom of the foreign author at the time of (a) Pisani v. Lawson (6 Bing. N. C. 90). PART L. the publication of his works,-that a bookseller might purchase a literary work in manuscript from a foreign author CHAPTER III. resident here, yet might lose the copyright if the author should choose to leave this country and be absent from it, even without the knowledge of the bookseller, at the time of publication; nay, if the bookseller should think it best to publish the works in several volumes at several times, he might have copyright in some of the volumes and not in others-because the existence or non-existence of the right would vary with the accident of the author's being or not being in this country at the dates of the respective publications of the volumes. Notwithstanding the foregoing very weighty reasons, the Decision of the law lords, Lords Cranworth, C., Brougham, and St. Leo- House of Lords. nards, agreed with the views expressed on this point by the minority of the judges, Alderson and Parke, B.B., Pollock, C.B., and Jervis, C.J.; and the House of Lords, reversing the decision of the Exchequer Chamber, upheld the direction given by Rolfe, B. to the jury at the original trial of the case, and thus decided, (a) that to entitle a foreigner to the copyright in any work first published by him in this country, he must be actually resident here at the time of the publication of such work, and consequently that no assignment by a foreigner, not resident here at the time of publication, can vest in a British subject a copyright in the work of the foreigner published here by that British subject. The grounds on which the judgment of the House of Lords in this important case rested, will appear from the following extracts from the judgments delivered. Lord Cranworth, C., after recapitulating the facts, said: "It may be assumed - that on the facts thus proved, the rights of Bellini, the author (if any), had been effectually transferred to Boosey, the defendant in error; and thus the important question arose, whether Bellini had by our law a copyright which he could transfer through Ricordi to Boosey, so as to entitle the latter to the protection of our laws?. . . . In the first place, it is proper to bear in mind that the right now in question-namely, the copyright claimed by the defendant in error (Boosey)-is not the right to publish or to abstain from publishing a work not yet published at all, but the exclusive night of multiplying copies of a work already published, and first published by the defendant in error (Boosey) in this Country. Copyright thus defined, if not the creature, as I believe it to be, of our statute law, is now entirely regulated by it, and, therefore, in determining its limits, we must look (a) See Routledge v. Low (post, p. 31). PART I. exclusively to the statutes on which it depends. . . . The CHAPTER III substantial question is whether under the term 'author' (in 8 Anne, c. 19) we are to understand the Legislature as referring to British authors only, or to have contemplated all authors of every nation. My opinion is that the statute must be construed as referring to British authors only. Prima facie, the Legislature of this country must be taken to make laws for its own subjects exclusively, and where, as in the statute now under consideration, an exclusive privilege is given to a particular class at the expense of the rest of Her Majesty's subjects, the object of giving that privilege must be taken to have been a national object, and the privileged class to be confined to a portion of that community, for the general advantage of which the enactment was made. When I say that the Legislature must, primâ facie, be taken to legislate only for its own subjects, I must be taken to include under the word 'subjects,' all persons who are within the Queen's dominions, and who thus owe to her a temporary allegiance. I do not doubt but that a foreigner resident here, and composing and publishing a book here, is an author within the meaning of the statutehe is within its words and spirit. . . . Copyright, defined to mean the exclusive right of multiplying copies, commences at the instant of publication; and if the author is at that time in England, and while here he first prints and publishes his work, he is, I apprehend, an author within the meaning of the statute, even though he should have come here solely with a view to the publication. . . . . But if at the time when copyright commences by publication the foreign author is not in this country, he is not, in my opinion, a person whose interests the statute meant to protect. I do not forget the argument that from this view of the law the apparent absurdity results, that a foreigner having composed a work at Calais, gains a British copyright if he crosses to Dover, and there first publishes it, whereas he would have no copyright if he should send it to an agent to publish for him. I own that this does not appear to me to involve any absurdity. It is only one among the thousand instances that happen, not only in law, but in all the daily occurrences of life, showing that whenever it is necessary to draw a line, cases bordering closely on either side of it are so near to each other, that it is difficult to imagine them as belonging to separate classes; and yet our reason tells us they are as completely distinct as if they were immeasurably removed from each other. . . . . If the object of the enactment was to give, at the expense of British subjects, a premium to those |