Council of November 28, 1887, came into operation.1 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.2

In Lauri v. Renad3 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.*

In the United Kingdom

1. Registration or delivery of copies to the libraries is unnecessary.5

2. Musical works must bear a notice of reservation on each authorised copy, otherwise the performing right will be lost.6

3. Whether other formalities such as name and date of publication on an engraving,' name and date on sculpture, are necessary quære.

Before 1886 registration and delivery of copies of a foreign work was required by the Act of 18449 and various Orders in

6

Council in pursuance thereof. The Act of 1886, however, enacts 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 18872 makes no provision as to registration and delivery, and revokes all the previous Orders in Council which did. In Fishburn v. Hollingsheads 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* 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, and the Act of 1844 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 differed from this view, and finally the Court of Appeal in Hanfstaengl v. American Tobacco Company 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 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 10 in

1 49 & 50 Vict. c. 33, sec. 4.

3 [1891], 2 Ch., 371.

5 Berne Convention, Art. 1.

7 [1893], 2 Q. B., 1.

9 [1891], 2 Ch., 371.

2 November 28, 1887.

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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. Hollingshead1 is further overruled the law is that formalities under heading 3 supra are necessary. In Avanzo v. Mudie 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.3 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.*

The publisher of a foreign work published anonymously or pseudonymously is entitled to sue if his name is indicated on the work.5

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.

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 prima facie evidence of the owner of the copyright."

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

1 [1891], 2 Ch., 371.

2 (1854), 10 Ex., 203; and see Cassell v. Stiff (1856), 2 K. and J., 279.

1. The same right of copyright and during the same period as if the work had been first produced in the United Kingdom:1 but

2. No greater right or longer term of protection than it enjoys in the country of origin.2

Section 10 of the International Copyright Act, 1844,3 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, 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, Kekewich, J., refused to consider

1 Additional Act of Paris, Art. I. 1; Order in Council, November 28, 1887, sec. 3; 7 & 8 Vict. c. 12, secs. 2, 3, 4; 49 & 50 Vict. c. 33, sec. 9.

2 Berne Convention, Art. 2; Order in Council, November 28, 1887, sec. 3; 49 & 50 Vict. c. 33, sec. 2 (3). 3 See also Revenue Act, 1887.

4 Pitt Pitts v. George [1896], 2 Ch., 866.

5 [1900], I Ch., 73.

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.1

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 6.2

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.3

"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

1 49 & 50 Vict. c. 33, sec. 9.

2 See Cassell v. Stiff (1856), 2 K. and J., 279.

3 Per A. L. Smith, J., in Moul v. Groenings [1891], 2 Q. B., 443.