be publication if the subscription list was open to the public at large, and even although the number of copies available was very small. In one case1 the words of a song were held to be published by being printed on a music-hall programme and distributed in the streets as an advertisement. Exhibition in a public place without distribution of copies would undoubtedly be divestitive publication. Divestitive publication must be with the consent of the proprietor; an unlicensed publication would merely be an infringement of his rights.

Investitive Publication.- Publication vests the statutory right of copyright, but a publication which divests the common law right does not necessarily invest the statutory right. An investitive publication is of necessity also a divestitive publication, but not vice versa. The principal distinction is that an investitive publication must be a publication of a book, while a divestitive publication is a publication of the literary composition which is or may be contained in a book. Thus the delivery of a lecture does not vest copyright, although under certain circumstances it may divest the common law right. The book itself must be given to the public, and not merely the contents, in order to secure copyright. It has been suggested that a book will not be published within the meaning of the Copyright Act unless it is also printed. There is certainly some colour for this suggestion. The Act 5 & 6 Vict. c. 45 gives protection to all books which are "published" without any express restriction to printed books. It seems to be assumed, however, throughout the Act that a book when published must necessarily be in print. For instance, section 6 requires "That a printed copy shall be delivered at the British Museum." In section II again, where provision is made for registration, it is not contemplated that a book in which there is copyright could be in manuscript, although the section makes express provision for the registration of manuscript dramatic and musical pieces, in respect of performing right. There is no authority on this point. In White v. Geroch2 it was said that publication of a musical piece in manuscript

1 Blanchett v. Ingram (1887), 3 T. L. R., 687.

2 (1819), 2 B. and Ald., 298.

vested the statutory copyright; but this was under the statute of Anne, which seems expressly to contemplate publication in manuscript which 5 & 6 Vict. certainly does not. In Boucicault v. Chatterton1 James, L.J., says: "a book is published by being printed and issued to the public;" but this was said only in illustration of the point he was then making, viz. that publication does not necessarily mean the same thing in dealing with copyright as it does in dealing with performing right. On the whole, although the point is extremely doubtful, I am of opinion that printing is not required. Suppose an illuminated hand-made book, fifty copies put on the market, is that to be denied copyright? If it is, the result seems to be that it is unprotected from piracy, since the common law right terminates with unconditional publication. Another point on publication has been raised but not decided, viz. Must there be a distribution of copies to the public, or will it be sufficient if one or more copies are made accessible to the public; for instance, by deposit of a copy at the British Museum or in other public libraries. Sir James Stephen, in his Digest appended to the "Report of the Copyright Commission, 1878," Art. 4, says: "publication . . . means in reference to books, publication for sale;" and James, L.J., as cited above, suggests that there must be an "issuing to the public." On the other hand, the disjunctive use of the terms "published" and "offered for sale" in section 6 of 5 & 6 Vict. c. 45 is rather in favour of the view that there can be investitive publication without "offering for sale." Analogy from other branches of the law is unreliable; the exhibition of a picture in a public gallery is publication of the picture,2 but that is the only way in which a picture can be published. On the whole, I think that if the public have free and unrestricted access to a book there will be publication, even although they may not be able to procure copies for themselves. Something might depend on the rules of a library where the book was deposited.

There is a common practice among publishers to accept as proof of first publication a receipt given on the sale of a single

1 (1876), 5 Ch. D., 267.

2 Turner v. Robinson (1860), 10 Ir. Ch. R., 121, 510.

copy of the book. No doubt this is primâ facie proof of publication, but the sale of a single copy does not necessarily imply publication, and it would be open to any one disputing the date of the publication to say that the sale was collusive, and that the book was not at that time, as it must be in order to constitute publication, offered to the public. It would be sufficient publication for the publisher to place copies, or even one copy of the book, in his window for sale. The record in his books should be sufficient evidence of the date if it is disputed.

In a case1 under the statute of Anne it was held that publication must be by or on behalf of the proprietor, or at least with the view of conferring copyright upon him. The publication in that case was made by an oral assignee to whom the author had purported to convey the exclusive right of publication in the United Kingdom. It was held that the assignee had no copyright because there was no written assignment, and that the author did not acquire copyright because the publication was not on his behalf. The result seems to be that the copyright was lost. If the principle is sound, which is extremely doubtful, it might be applied to the case of first publication by a licensee, unless it could be implied from the contract between the licensor and licensee that the licensee was not acting entirely on his own behalf, but also on behalf of his licensor to secure copyright.

First Publication within the British Dominions.-Under the Act of 5 & 6 Vict. c. 45, it was held essential that first publication should be within the United Kingdom;2 but since the International Act of 1886 first publication anywhere within the British dominions will equally secure copyright. If a book is published simultaneously within and without the dominions it is sufficient. Publication a day later than publication abroad would probably lose the copyright; but if on the same day, even although an hour or two later, it would be deemed simultaneous. If a serial story in a periodical is

1 Clementi v. Walker (1824), 2 Bar and Cres., 861.

2 Routledge v. Low (1868), L. R., 3 H. L., 100; Jefferys v. Boosey (1854), 4 H. L. C., 815; Boosey v. Purday (1849), 4 Ex., 145; Chappell v. Purday (1845), 14 M. and W., 303; Cocks v. Purday (1848), 5 C. B., 860.

3 49 & 50 Vict. c. 33, sec. 8 (1).

4 Cocks v. Purday (1848), 5 C. B., 860; Buxton v. James (1851), 5 De G. and S., 80.

3

being published simultaneously, say here and in the United States, some parts may have lost their copyright by too hasty publication in America, but this would not deprive the whole serial of copyright if the other parts were "first published " within the British dominions.1 The date on the titlepage of an American book has been held not to be conclusive evidence of the time of publication in the United States. It is quite immaterial where the manuscript is written; and probably equally immaterial where the book is printed. It has been suggested, however, that under 5 & 6 Vict. c. 45, printing within the United Kingdom was necessary, and that now since the "International Copyright Act, 1886," printing within the British dominions is a condition precedent to protection. I do not think the suggestion is of any weight. It is founded on two obiter dicta-one of Lord St. Leonards in Jefferys v. Boosey, and the other of Bayley, J., in Clementi v. Walker.5

6

If a book is first published outside the British dominions there will be no copyright in it except under the International Statutes. Section 19 of 7 & 8 Vict. has been held to apply to publication in all foreign countries, and not only to those with which an international convention is in existence; and it has been further held to apply to the works of a British subject as well as to those of a foreigner.9

If a dramatic or musical work is first performed abroad before publication as a book, although that may destroy the performing right within the British dominions, it probably will not affect the author's right to acquire copyright by first publication here in "book" form. It may be said that "first published" in 7 & 8 Vict. c. 12, sec. 19, has been held to include "first performed." 10 That decision,

1 Reid v. Maxwell (1886), 2 T. L. R., 790.

2 Lover v. Davidson (1856), 1 C. B. (N.S.), 182.

3 Buxton v. James (1851), 5 De. G. and S., 80; as to author's nationality or residence,

see p. 42.

4 (1854), 4 H. L. C., at p. 983.

67 & 8 Vict. c. 12, sec. 19.

5 (1824), 2 B. and C., 861, at p. 867. 7 See p. 193.

8 Boucicault v. Delafield (1863), 1 H. and M., 597; Boucicault v. Chatterton (1876),

5 Ch. D., 267.

• Boucicault v. Delafield (1863), 1 H. and M., 597; Boucicault v. Chatterton (1876), 5 Ch. D., 267; Ex p. Dobson (1892), 12 N.Z. L. R., 171.

10 Boucicault v. Chatterton (1876), 5 Ch. D., 267.

however, dealt only with a question of performing right. In Boosey v. Davidson1 there was first performance abroad, and it was held that copyright was obtained here by first publication ; but there was no argument on section 19.

SECTION III.-AUTHOR'S NATIONALITY.

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It must still be considered doubtful whether or not the author of a book must be a British subject, or at least resident within the British dominions at the time of publication. This point is the subject of a considerable body of case law under the statute of Anne; but there has been no definite and authoritative decision under the statute of Victoria. The question was first seriously argued in the case of D'Almaine v. Boosey, when it was decided in the Court of Exchequer that the work of a foreigner would be entitled to protection if first published in England by an English assignee. The next case was Bentley v. Foster, before Shadwell, V.C., who decided that the foreigner himself could acquire a copyright by first publication in this country. After that there is a series of confused and conflicting cases, terminating with the decision of Jefferys v. Boosey in the House of Lords. The plaintiff in that case was the English assignee of the unpublished work of a nonresident foreigner. The first publication was in England. The judges were consulted, and of these six were in favour of the plaintiff's right and four against it. The House of Lords, however, were unanimous against the plaintiff's right. They decided that the work of a non-resident foreigner could not acquire copyright in this country.

5

4

Lord Cranworth, L.C., said :

"The statute (8 Anne) must be construed as referring to British authors only. Primâ facie the legislature of this country must be taken

1 (1849), 13 Q. B., 257.

2 D'Almaine v. Boosey (1835), 1 Y. and C. Ex., 288; see Willes, J., in Millar v. Taylor (1769), 4 Burr., at p. 2310; Delondre v. Shaw (1828), 2 Sim., 240.

3 (1839), 10 Sim., 329.

4 Chappell v. Purday (1845), 14 M. and W., 303; Cocks v. Purday (1848), 5 C. B., 860; Boosey v. Davidson (1849), 13 Q. B., 257; Boosey v. Purday (1849), 4 Ex., 145; Ollendorff v. Black (1850), 20 L. T., 165; Boosey v. Jefferys (1851), 6 Ex., 580; Buxton v. James (1851), 5 De G. and Sm., 80. 5 (1854), 4 H. L. C., 815.