THE LAW OF COPYRIGHT.* Ix is a matter for regret

that Mr. E. J. MacGillivray in this important work upon the Law of Copyright should not have thought fit to deal at greater length with the history of copy- right. To have done so would not have added greatly to the bulk of the book, and the opportunity for original research was, we should have thought, irresistible. Mr. MacGillivray has, we think, erred in distinguished company in believing that, as he says, "the first record which we have of any monopoly in the reproduction of literary work is in the exercise of the alleged prerogative of the Crown to control the printing press." He adds that "no book whatsoever was allowed to be printed without a licence or grant of monopoly from the Crown. One of the principal objects in the exercise of this prerogative was the prevention of the dissemination of religious doctrines contrary to the accepted faith." We should have thought that examples of the exercise of the prerogative for the purpose of preventing the multiplication of heretical books could have been found at a far earlier date, long, indeed, before the introduction of printing. Indeed, the statute De Haeretico Contburendo passed in 1401 (2 Hen. IV., c. 15) forbade the circulation of such books. We also find that something of the nature of "booksellers' copyright" was recognised by Lord Thomas Arundel, Archbishop of Canterbury, in his "Constitu-

tions" promulgated in 1408. The fifth constitution ordains— "That no book or treatise composed by John Wicklif, or by any other in his time, or since, or hereafter to be composed, be hence-

forth read and that none be taught according to such [book] unless it have been first examined, and upon examination unanimously approved by the University of Oxford or Cambridge, or at least by twelve men chosen by the said universities, or by one of them under the discretion of us, or our successors ; and then afterwards [the book be approved] expressly by us, or our successors, and delivered in the name, and by the authority of the universities, to be copied, and sold to such as desire it ; after it has been faithfully collated at a just price, the original thenceforth remaining in some chest of the university for ever."

Surely this was a "monopoly in the reproduction of literary work," and proves that the Universities long preceded the

Company of Stationers as the authority "to supervise and control the publication of books." It is probable that no re- ported case can be found that protected a licensed book from unlicensed reproduction ; but nevertheless the control is identical with that exercised later by the Company of Stationers. We have ventured to draw attention to this apparently unfamiliar fact, as the question is one of great importance in the lftstory of books.

While dealing with the historical aspects of copyright there is a further point to which we may refer briefly. The question of international copyright is at the present time one of the greatest interest and importance to authors, and the history of the subject, though possibly of little practical importance, might well have been detailed in a book of this size. For instance, we think that some reference to the statutes of 1483-84 and 1533-34 might well have been made. The first statute (1 Ric. III., c. 9) which prohibited the im- portation of certain goods into England was directed not to extend " to any Artificer or marchaunt straungier of what Nac ion or Contrey he be or shalbe of, for bryngyng into this Realme, Or sellyng by retail or otherwise, of any mans bokes wrytten or imprynted, or for the inhabitynge within the said Realme for the same intent, or to any writer lympner bynder or imprynter of suche bokes, as he bath or shall have to sell by wey of marchaundise, or for their abode in the same Reame for the exercisyng of the said occupacions." The remarkable liberality of this provision marks an important stage in the history of English literature. We know from the preamble to the second statute referred to above (25 Hen. VIII., c. 15) that the Act of Richard III. resulted in the Introduction of " a marveylous nombre of prynted bokes and dayly doth "

both in Latin and in "our maternall Englishe tonge" bound in boards, leather, and parchment for the purposes of retail

sale.. Meantime, however, English printers and binders had multiplied and clamoured for protection, and in consequence

A Treatise mien the Lam of Copyright in the United Kingdom and the vonmaions of the Crown, and in the United States of efinertoz. By E. J. Msseinivray, LL.B. (Cantab.), of the Liner Temple, /3arrister-atplaw, Member of the Faculty of Advocates in Scotland. London : John Murray, [25e. net.]

Parliament forbade any one to purchase retail copies of books from foreigners, or to buy, after Christmas, 1534, foreign bound books to sell again. In order, however, that English prices might be maintained at a reasonable level, power was given to the Lord Chancellor and others "to reform° and redresse suche enhaunsynge of the pryces of prynted bokes

from tyme to tyme by the ire discreacions and to lymytt pryoes aswell of the bokes as for the byndyng of theym." All this seems to us to have a direct relation to "monopoly in the re- production of literary work," and should have a place in any exhaustive volume on the subject.

Apart from this deliberate exclusion of historical matter. Mr. MacGillivray has certainly produced an eminently useful work on a subject that is all-important to authors and publishers. It is necessary to both classes to know what books are protected, who is the owner of the copyright in particular cases, what constitutes infringement of copyright, what are the remedies for such infringement, what are an author's " performing " rights ; and we think that the most guileless of authors will be able with the help of this very lucid treatise to understand the nature of his interests and the way to protect them. Moreover, it is "the author" in the largest sense, and not only the author of books, to whom this work appeals. It deals adequately with the important questions that arise in connection with copyright in engravings, sculp- ture, paintings, drawings, photographs, dramatic works, and musical compositions. The author does not tell us whether there is anything of the nature of copyright in phonographic records, but we presume that this is beyond question.

The general impression left by a close study of this very complete and accurate work is the extraordinary state of con- fusion that exists in the Law of Copyright, and the remarkably able manner in which Mr. MacGillivray has laid before the reader the hotch-pot of common law, statute law, and case law that makes up the legal rules governing that class of property which chiefly consists of the literary and artistic productions of the human mind. "We have," he tells us in his preface, "for some time been on the eve of a general codification and amend- ment of the Law of Copyright. It is, however, an eve of long and indefinite duration. It is now twenty-eight years since the Royal Commission on Copyright was appointed, and still nothing has been done to ameliorate the lamentable condition in which the Commissioners then found the law. Dissensions among those who are interested in copyright, failure to come to a satisfactory arrangement with the colonies, and want of time at the disposal of the legislature are mainly responsible for this delay." This is, of course, true in so far as codification—a codification that would have to clear up innumerable legal puzzles—is concerned; but as is pointed out in the body of the book, we have also to be thankful for considerable mercies, such as the Berne Convention of 1887 (which has introduced some order and some justice into the vexed question of inter- national copyright), and the arrangement with the United States of America under the American Act of 1891, which gives to English authors a property that may be of "consider- able value if before publishing here they incur the trouble and expense of printing and recording their books in America."

The nebulous condition of the English law is, however, astonishing ; at least, to those who are unacquainted with the perplexity and darkness of all the uncodified part—the most part—of English law. We do not even fully know the meaning of the word "author." "Until Walter v. Lane was decided [in 1900] in the House of Lords, it was a prevalent opinion that the author must be he who actually designs and by himself or through others composes the literary matter contained in the book " ; but that case "demonstrates that the author is the first producer of literary matter" in some permanent form. We do not know who may be an "author" within the meaning of copyright law. Must he be a British subject, or at least resident within British Dominions at the time of publication, or may he be a non-resident foreigner ? Mr. MacGillivray, we note, is of opinion that a non-resident foreigner could not be an author within the meaning of the Act ; and yet it was on the contrary interpretation of the Act that "the President of the United States proclaimed Great Britain as one of the countries which gave by their law reciprocal rights to American authors; and English authors are thereby entitled to acquire copyright in the United States." It is little short of monstrous that such a point should still he open. One

might fill pages, indeed, with the mere statement of the moot points that arise at every turn, and points, too, of a fundamental character. The period, for instance, of protection of the works of joint authors is not finally ascertained. Again, it is not known if a translation of a book is an infringement of the copyright of that book. Some Indian decisions say it is not an infringement, while common-sense, which is supposed to reign in India, says that it is an obvious infringement. The whole question of "performing rights "—"the exclusive right of representing in public dramatic and musical works "—is in a state of chaos. Mr. MacGillivray has treated the question with admirable lucidity, and we recommend the chapter on this subject to those who wish to appreciate the true richness and flavour of English law, especially in its relation to other municipal systems of law.

The position of art as affected by the Copyright Laws of England is another instance of the gross injustice that the present system works. Engravings, paintings, drawings, and photographs, if first produced anywhere within the British Dominions, are protected under the International Copyright Act, 1886, but the protection does not extend beyond the United Kingdom, save where protection is obtained under the Copyright Act, 1842, by incorporating the art work into a book. "The result is that artistic works are only protected in the colonies and dependencies under local legislation." This is an obvious injustice that calls for remedy. It must be admitted, however, that it is not only in England that the law is in an unsettled and bad state. The United States Act of 1891 is not easy of interpretation, and will give rise, it would seem, to much litigation. Our relations with our own Colonies, however, require speedy adjustment, for not only is all artistic production liable to piracy under the present system, but even English authors, unless they take special and technical precautions, are liable to lose their copyright in the Colonies through the unsuspected operation of the Customs Act, 1876.

Literature and art, in fine, are terribly hampered by the present disgraceful state of the English Law of Copyright, and amendment and codification are urgently called for,—how urgently the readers of this admirable text-book can judge for themselves.