TENDENCIES OF COPYRIGHT AMENDERS.
That pretensions under Copyright are becoming so formidable as to demand very serious attention on the part of statesmen and of all who desire to maintain the integrity of our national inheritance of a world-wide, heartily-united empire, and imperial freedom from odious, inquisitorial, and impracticable restraints, especially such as might hinder intellectual and moral development, will be evident to any person who takes pains to study and follow out to their necessary consequences the provisions contained in the following transcripts from a Bill lately introduced by an ex-Lord Chancellor, “for Consolidating and Amending the Law of Copyright in Works of Fine Art:”
Fine Arts Copyright Consolidation and Amendment. [32 Vict.]
Design.—An original conception represented by the author thereof in any work of fine art.
Drawing or Painting.—Every original drawing or painting, made in any manner and material, and by any process.
Photograph shall mean and include every original photograph.
Sculpture.—Every original work, either in the round, in relief, or intaglio, made in any material, and by any process.
Engraving.—Every original engraving and lithograph made upon a plate, block, or slab, of any material, by any process, whereby impressions may be taken from such plate, block, or slab, and the impressions taken from the same.
Work of Fine Art.—Every drawing, painting, photograph, work of sculpture, and engraving as herein-before interpreted.
Extending to all parts of the United Kingdom of Great Britain and Ireland, the Channel Islands, the Isle of Man, and all the colonies and possessions of the Crown which now are, or hereafter may be, created or acquired.
3. The author of every original work of fine art, if made, or first sold, after the commencement of this Act, such author being a British subject, or resident within any part of the British dominions at the time such work shall be made or first sold, and the assigns of such author, shall have the Copyright of sole and exclusive right of copying, reproducing, and multiplying such work, and the design thereof, in the British dominions, by any means, and of any size, for the term of the natural life of such author, and thirty years after his death, but subject to the following conditions and restrictions; (that is to say), &c.
9. If the author of any work of fine art in which there shall be subsisting Copyright, after having become divested of such Copyright, or if any other person, not being the proprietor for the time being of the Copyright in any work of fine art, shall by any means unlawfully repeat, copy, imitate, or otherwise multiply for sale, hire, exhibition, or distribution, or cause or procure to be repeated, copied, imitated, or otherwise multiplied for sale, hire, exhibition, or distribution, any such work, or the design thereof, or any part of such design, or, knowing that any such repetition, copy, or other imitation has been unlawfully made, shall import or export into or out of any part of the British dominions, or sell, publish, let to hire, exhibit, or distribute, or offer for sale, hire, exhibition, or distribution, or cause or procure to be so imported, or exported, or sold, published, let to hire, distributed, or offered for sale, hire, exhibition, or distribution, any unlawful repetition, copy, or imitation of any such work, or of the design thereof, such person for every such offence shall forfeit to the registered proprietor for the time being of the Copyright thereof a sum not exceeding twenty pounds, and not less than two pounds, for every first offence, and not less than five pounds, for every subsequent offence, &c.
11. All repetitions, copies, or imitations of any work of fine art, or the design thereof, wherein there shall be subsisting Copyright under this Act, and which, contrary to the provisions of this Act, shall have been made in any foreign State, are hereby absolutely prohibited to be imported into any part of the British dominions, except by or with the consent of the registered proprietor of the Copyright thereof, or his agent authorised in writing; and if the registered proprietor for the time being of any such Copyright or his agent shall declare, or if any officer of Her Majesty’s Customs shall suspect, that any goods imported are prohibited repetitions, copies, or imitations of any such work of fine art, or of the design thereof, then such goods may be detained, unpacked, and examined by the officers of Her Majesty’s Customs.
12. The Commissioners of Customs shall cause to be made, and publicly exposed at the several ports of the United Kingdom, and in Her Majesty’s possessions abroad, printed lists of all works of fine art wherein Copyright shall be subsisting, and as to which the registered proprietor for the time being of such Copyright, or his agent, shall have given notice in writing to the said Commissioners that such Copyright exists, stating in such notice when such Copyright expires, and shall have made and subscribed a declaration before the collector of the Customs, or any justice of the peace, at some port or place in the United Kingdom or in Her Majesty’s possessions abroad, that the contents of such notice are true. The provisions contained in the Acts now in force, or at any time to be in force, regarding Her Majesty’s Customs, as to the application to the courts and judges by any person aggrieved by the entry of any book in the lists of books to be made and publicly exposed by the said Commissioners under the said Acts, and the expunging any such entry, shall apply to the entry of any work of fine art in the lists thereof to be made by virtue of this Act, in the same manner as if such provisions were herein expressly enacted, with all necessary variations in relation to such last-mentioned lists, &c.
13. Every person who shall import or export, or cause to be imported or exported, into or out of any part of the British dominions, or shall exchange, publish, sell, let to hire, exhibit, or distribute, or offer, or hawk, or carry about, or keep for sale, hire, exhibition, or distribution, any unlawful copy, repetition, or imitation of any work of fine art, in which, or in the design whereof, there shall be subsisting registered Copyright, shall be bound, on demand in writing, delivered to him or left for him at his last known dwelling-house or place of business, by or on behalf of the registered proprietor for the time being of such Copyright, to give to the person requiring the same, or his attorney or agent, within forty-eight hours after such demand, full information in writing of the name and address of the person from whom, and of the times when, he shall have imported, purchased, or obtained such unlawful copy, repetition, or imitation, also the number of such copies, repetitions, or imitations which he has obtained, and also to produce to the person requiring such information all invoices, books, and other documents relating to the same; and it shall be lawful for any justice of the peace, on information on oath of such demand having been made, and of the refusal or neglect to comply therewith, to summon before him the person guilty of such refusal or neglect, and on being satisfied that such demand ought to be complied with, to order such information to be given and such production to be made within a reasonable time to be fixed by him.
14. Upon proof by the oath of one credible person before any justice of the peace, court, sheriff, or other person having jurisdiction in any proceeding under this Act that there is reasonable cause to suspect that any person has in his possession, or in any house, shop, or other place for sale, hire, distribution, or public exhibition, any copy, repetition, or imitation of any work of fine art in which, or in the design whereof, there shall be subsisting and registered Copyright under this Act, and that such copy, repetition, or imitation has been made without the consent in writing of the registered proprietor of such Copyright, it shall be lawful for such justice, court, sheriff, or other person as aforesaid before whom any such proceeding is taken, and he or they is and are hereby required to grant his or their warrant, to search in the daytime such house, shop, or other place, and if any such copy, repetition, or imitation, or any work which may be reasonably suspected to be such, shall be found therein, to cause the same to be brought before him or them, or before some other justice of the peace, court, sheriff, or other person as aforesaid, &c.
15. If any person, elsewhere than at his own house, shop, or place of business, shall hawk, carry about, offer, utter, distribute, or sell, or keep for sale, hire, or distribution, any unlawful copy, repetition, or colourable imitation of any work of fine art in which, or in the design whereof, there shall be subsisting and registered Copyright under this Act, all such unlawful articles may be seized without warrant, by any peace officer, or the proprietor of the Copyright, or any person authorised by him, and forthwith taken before any justice of the peace, court, sheriff, &c.
23. Under this Act there shall be kept at the hall of the Stationers’ Company by the registrar appointed by the said company for the purposes of the Act passed in the sixth year of the reign of her present Majesty, intituled “An Act to amend the Law of Copyright,” three several books or sets of books, which shall be called as follows:
(1.) The register of proprietors of Copyright in original drawings and pictures:
(2.) The register of proprietors of Copyright in original photographs and engravings:
(3.) The register of proprietors of Copyright in original works of sculpture.
In the first of such registers shall be entered a memorandum of every Copyright, or of any limited legal interest therein, to which any person shall claim to be entitled under this Act in any original drawing or painting, and also of any subsequent assignment of such Copyright or limited legal interest therein; and such memorandum shall contain a statement of the several particulars required by the form applicable for that purpose in Part I. of the third schedule to this Act; and in addition thereto the person registering shall annex to the memorandum under which he requires the entry to be made an outline, sketch, or photograph of the drawing or painting to which such memorandum refers, &c.
⁂ Again adverting to the case of Ireland, let it be remembered it was only so late as 1836 that an Act was passed “to extend the protection of Copyright in prints and engravings to Ireland.”
This Bill of Lord Westbury’s, after having been referred to a Select Committee of the House of Lords, has been withdrawn, but only for the present Session. The reason for withdrawal is found in amendments recommended by the Committee, one of which is that it should extend only to the United Kingdom and Channel Islands. The subjoined extracts from a printed defence of the Bill, by D. Roberton Blaine, Esq., will be read with interest, as showing how influential is the quarter whence the Bill emanates, and not less on account of their allusion to Patent-right and their other interesting contents.
This Bill has been prepared by direction of the Council of the Society of Arts, Manufactures, and Commerce, in consequence of a memorial having been presented to the Council, signed by a considerable number of the most eminent artists and publishers resident in London....
There is no Copyright in the ideas embodied in a work of literature or of fine art....
It is quite otherwise according to our Patent-Laws. Under them the idea of an author is everything, so to speak, and is rigidly protected. Thus, for example, suppose A produces a new manufacture by means of a very imperfect and clumsy machine, or chemical process, which he invents and patents; and suppose afterwards that B invents a very perfect and simple machine, or chemical process, whereby he can produce the same manufacture as A, but better and cheaper than his. In such a case the Patent-Laws prohibit B from making any use of his improvement for making the manufacture of A during the continuance of his Patent, unless with his consent. This arises from its being a leading principle of our Patent-Laws, that where a new invention has been secured by a valid and existing Patent no one is allowed during the continuance of that Patent to produce the same results by a mechanical or chemical equivalent. Hence the great source of complaints and of the litigation arising under our Patent-Laws. Thus it is that a patented manufacture precludes any improvements therein except by the patentee, or with his consent, during the term of his Patent....
In Italy, at the expiration of such forty years, although any one may then make and sell copies of the work, the person doing so must, during a second term of forty years, annually pay to the proprietor of the Copyright 5 per cent. (calculated at the published price) upon all copies sold by the person so making and selling such copies. As to France, her Copyright-Laws are expressly extended to all her colonies. And, by the 8th Article of Her Majesty the Queen’s Copyright Convention with France, dated 3rd November, 1851, reciprocal protection is agreed to be given in favour of Copyright works first published in “the territories of France,” or in “the British dominions.” This appears to show that both States clearly intended that such reciprocal protection should extend to their colonies. It is also stipulated by the 7th Article that “pirated works shall be seized and destroyed.” Now the French law very justly declares the piracy of Copyright property to be a crime (delit), and provides rapid and effectual means for enabling the proprietor of the Copyright to seize both the pirate and the fraudulent copies, plates, &c., in his possession. Yet, according to the present state of the British Artistic Copyright-Laws, no such powers of seizure, as expressly agreed by Her Majesty the Queen’s Convention, exist in the British dominions; nor does any protection whatever for artistic Copyright works extend beyond the United Kingdom; no, not even to the Isle of Man, or to the Channel Islands!
This important and novel subject is likely soon to receive useful illustration from a Parliamentary return to be moved for by the Right Hon. T. H. Headlam. From another of that gentleman’s Returns a suggestive extract is also subjoined.
It contains evidence that long ago impatience of existing restraints was in vigorous action in the British Colonies—evidence that payment of authors by royalties is a system that commands State concurrence—and evidence how over-ready the State is, or how circumstances are formed so as to compel it, to undertake work for authors and publishers by means of its Custom-house officers. On this last point I am happy also to produce an important paper kindly furnished by Michael Daly, Esq., of Her Majesty’s Customs. Mr. Daly’s note deserves to be pondered in prospect of the re-appearance next Session of the Board of Trade’s “Trade-Marks Registration Bill.”[11]
The extracts which I have agglomerated show that the idea of employing officers of Excise as well as those of Customs is seriously propounded, but this is by no means all the useful information they convey.
[11] Would it not be well to confine registration to names of firms or premises without recognising marks?