FROM A MANUSCRIPT STATEMENT BY MR. PURDAY.
The Act of 1 and 2 Vict., c. 69, was passed into a law under the title of “An Act for securing to Authors in certain cases the benefit of International Copyright,” the date of which was July 31, 1838. The 14th section is in these words: “And be it enacted, that the author of any book to be, after the passing of this Act, first published out of Her Majesty’s dominions, or his assigns, shall have no Copyright therein within Her Majesty’s dominions, otherwise than such (if any) as he may become entitled to under this Act.” Section 9 says that no protection of Copyright shall be given to a foreign author, unless such protection shall be reciprocated to an English author by the country to which the foreign author belongs. Now, nothing can be clearer than that the Act of 5 and 6 Vict., c. 45, never contemplated giving protection to a foreign author; but, on the contrary, that it was passed solely for the benefit of English authors.... At last the whole matter was brought before the House of Lords, where it was decreed that a foreign author was not an author within the meaning of the Acts of Parliament, and could neither claim any Copyright himself nor assign any to an English subject, unless he was resident in the British dominions at the time he sold his work, and published it there before there was any publication abroad. This, after eleven years of litigation by various parties, among whom my brother was the most persistent defendant, he being perfectly convinced that if the subject came to be thoroughly investigated, no such claims as were set up by the monopolists could be maintained either at common law or in equity. The House of Lords, however, were not called upon to decide what was meant by the term residence. This, therefore, gave rise to an attempt on the part of an English bookseller to contrive a scheme which, to the not very creditable honour of English jurisprudence, as it appears to my humble understanding, succeeded. The scheme was this: An American authoress of little repute wrote a novel, one copy of the manuscript of which, it is said, was handed over, for a consideration, to this English bookseller, to publish in England; the work was got ready on this side of the Atlantic as well as on the other side, and, after agreeing as to the date of entry at Stationers’ Hall, and the publication of the same in London, the lady was desired to go over the Victoria-bridge into Canada, one of the British dominions, and remain there a few hours or days, while the publication took place in London; then she was to go back again for the protection of the same work, as a Copyright, in her own country. Meanwhile, another English publisher, hearing that such an artifice was about to be attempted, procured an American copy of the said work, and republished it in a cheap form. The consequence was, that an application for an injunction was applied for by the first party, which was granted, and appealed against to the Lords Justices, who gave it as their opinion that the word “author” in the Act of Parliament was to be interpreted in its widest sense, and that there was no limitation to that word in the Act of Parliament; therefore, it was maintained that any author could have a Copyright in England who complied with the requisitions of the Act, and this defective scheme was confirmed by Lord Chancellor Cairns, who remarked that none of the former decisions had stated that it was other than necessary to be in the British dominions during the time of the publication of the work. This device may have facilitated the desire for an international law upon a righteous foundation, now so loudly advocated in America.
In the judgment given in the House of Lords, in the case of Boosey’s assumption to the exclusive right of printing the opera of Bellini, the subject of residence in England was debated, and Lord St. Leonards used these remarkable words: “Now the American Legislature have no such difficulty. They have expressly enacted that Copyright there shall be confined to natives, or persons resident within the United States. Those are the express words of their statute.” And we may remark, farther, that unless an alien author has resided at least twelve months in America, and has made a declaration in these words, “I do declare on oath that it is bonâ fide my intention to become a citizen of the United States,” &c., he cannot obtain the privilege of Copyright in anything he may publish there. This conflict of opinion must necessarily end, therefore, in a new Act of Parliament, which has been long needed to settle this and other much-vexed questions of Copyright.