Such are the facts which preceded the Canadian “Correspondence.” It commences with the resolution which, in effect, advocates “the justice and expediency” of enabling Her Majesty’s Canadian subjects at their discretion (and without the permission of the owners) to confiscate the property of authors of British Copyright works upon the terms of the publisher paying such authors a royalty of 12½ per cent. upon the price of the Canadian reprints, that being about one-tenth of the publication price of the work in England! It appears the “justice and expediency” of adopting this Canadian resolution has been pressed very strongly upon the authorities at the Colonial-office, and likewise at the Board of Trade, by the Hon. J. Rose, the Canadian “Minister of Finance.” He frankly admits that the policy of the Act of 1847 (so far as respects the protection of British authors) has long been an utter failure; that the amount of duties received for their benefit “is a mere trifle;” and that “it is next to impracticable to enforce the law.” These statements are confirmed by a letter, dated June 11, 1868, from Mr. John Lovell (a Montreal publisher) to Mr. Rose, and which appears in the Correspondence. Mr. Lovell says: “At present only a few hundred copies pay duty, and many thousands pass into the country without registration, and pay nothing at all; thus having the effect of seriously injuring the publishers of Great Britain, to the consequent advantage of those of the United States. I may add that, on looking over the Custom-house entries to-day, I have found that not a single entry of an American reprint of an English Copyright (except the Reviews and one or two magazines) has been made since the third day of April last, though it is notorious that an edition of 1,000 of a popular work, coming under that description, has been received and sold within the last few days by one bookseller in this city.”
In support of the Canadian resolution, the Hon. J. Rose likewise urges the greater cheapness now of printing in Canada than in the United States. Upon this point he is also confirmed by Mr. Lovell, who says: “It is undeniable that Canadian printers would be enabled to comply with the requisite conditions (that is, of paying a royalty of 12½ per cent. to the author), and produce books, thanks to the local advantages, at a much cheaper rate than they can be produced in the States, and so bring about a large export business.”...
This application on the part of the Canadians is answered at considerable length by the Board of Trade; the substance of that answer being “that the question raised is far too important, and involves too many considerations of imperial policy, to render it possible to comply with that application. My Lords, however, fully admit that the anomalous position of Canadian publishers with respect to their rivals in the United States of America is a matter which calls for careful inquiry; but they feel that such an inquiry cannot be satisfactorily undertaken without, at the same time, taking into consideration various other questions connected with the imperial laws of Copyright and the policy of International Copyright Treaties, and they are, therefore, of opinion that the subject should be treated as a whole, and that an endeavour should be made to place the general law of Copyright, especially that part of it which concerns the whole continent of North America, on a more satisfactory footing. The grievance of which the Canadian publishers complain has arisen out of the arrangement sanctioned by Her Majesty’s Government in 1847, under which United States reprints of English works entitled to Copyright in the United Kingdom were admitted into Canada on payment of an import duty, instead of being, as in the United Kingdom, absolutely prohibited as illegal.”...
A circular by Mr. Purday contains the following:—
A fact transpired only a few days since of an order being sent for some of the musical works published in Bond-street, on which it was stated that they must be “American printed copies”.... It is said that the Americans have the means of disposing of 30,000 or 40,000 copies of any popular book or song they choose to reproduce. This, of course, is a fine premium for supplanting the English publisher in the sale of his own Copyright works in his own colonies.
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.