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, and AustriaHungary, 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.2

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.3

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

1 See p. 194, infra.

2 Morocco Bound Syndicate v. Harris [1895], 1 Ch., 534.

3 7 & 8 Vict. c. 12, sec. 19; Boucicault v. Delafield (1863), 1 H. and M., 597.

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:—

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,1 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

1 49 & 50 Vict. c. 33, sec. II.

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 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 verså. 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. 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.3

The work must also be such as would have obtained protection if first produced in the United Kingdom, and it is therefore necessary in each case to inquire also into the law of this country.5

Unpublished Works.-Unpublished works of foreign authors are expressly included in the convention as works entitled to protection. If, therefore, they are protected in the country of

1 See p. 129.

2 Berne Convention, Arts. 2, 14; 49 & 50 Vict. c. 33, sec. 2 (3); Order in Council, Nov. 28, 1887, sec. 3.

Hanfstaengl v. Empire Palace [1894], 3 Ch., 109.

✦ Additional Act of Paris, Art. I. 1; Berne Convention, Art. 13.

Hanfstaengl v. Empire Palace, ubi supra.

• Additional Act of Paris, Art. I. 1.

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.1

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

Posthumous works: 2

Authorised translations (to be protected as original works): 3

Photographic works and works produced by an analogous process: 4

Choregraphic works.5

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), 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."7

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

1 Berne Convention, Art. 13.

2 Additional Act of Paris, I. 1.

3 Berne Convention, Art. 6; 49 & 50 Vict. c. 33, sec. 5 (3).

4 Additional Act of Paris, II. 1.

5 i.e. works delineating the steps in a dance or ballet. Berne Convention, Final Protocol (2). 649 & 50 Vict. c. 33, sec. 6.

7 See also Berne Convention, Final Protocol (4); Order in Council, Nov. 28, 1887, sec. 3; Additional Act of Paris, Art. II. 2.