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active effect of any increase in the term. The Convention will be retroactive as regards all works which have not fallen into the public domain when it comes into force. To whom, it may be asked, would the benefit of any enhanced term accrue? Would sales of copyrights be reopened in order to adjust the unexpected increment ?
The right of performance of musical, and, in some cases, of dramatic and dramatico-musical works, now rests in many countries upon notice of reservation; and this has hitherto been recognised under the Berne Convention, so that it possesses international validity. This obligation it is now proposed to abolish altogether. In other words, the onus of ascertaining the ownership of the right of performance is to be shifted from the composer or author to the public. It may be suggested that the change will subject innocent and involuntary infringers to great hardship. It will render the task of distinguishing between copyright and non-copyright music very difficult. It will be long before the public realise that the omission of the familiar, if mystic, formula is no longer equivalent to an agreement that the right of performance shall pass into the public domain. As it is the public know that the absence of notice is a sure and certain safeguard, indicating either that the work has become public property or that protection is not desired. Ethically, no doubt, the Continental view that the onus should lie on the public and not on the composer is sound enough, but in practice, we think, the public convenience should govern. It is, moreover, by no means invariably the case that composers desire to restrain performance. It will seem a little absurd, if this be not the case, that they should find it necessary to announce that the right of public performance is not reserved.'
Somewhat inconsistently, again, the Convention sets up a new formality in the case of the reproduction of newspaper articles as to which protection is to be usefully extended.
uy extended. This is, it appears, to depend solely upon the absence of express prohibition, but is otherwise to be permissible provided the source is indicated. The rule is based on a diametrically opposite principle.
In Great Britain all plays on production are regarded, like books, as 'published works,' while all novels can be dramatised. By English law the production of a play has been equivalent to publication certainly since the International Copyright Act of 1844. Subject to treaty obligations and countries excepted by Orders in Council, as in the case of books under the Act of 1838, the Act of 1844 expressly provided (Section 19) that no author or composer of a dramatic piece, &c., which should, after the passing of the Act, ' be first published out of her Majesty's dominions, shall have any copyright therein or any exclusive right to the public representation or performance thereof.' Vice-Chancellor Wood in 1863, in the Colleen Bawn case, frankly laid it down that 'the plain purpose of the Statute was to secure for this country the benefit of the first publication of new works.' In other
words, it was impracticable for this country to accede to the Declaration of Paris, 1896, which, inter alia, expressly provided that the performance of a play does not amount to publication. In the same way, again, by the same instrument, the Union declared all “ adaptations, such as the dramatisation of a novel or the novelisation of a play, to be unlawful, while both are permissible at English law.
The House of Lords Bills have already adopted the principle of the Declaration of Paris that the adaptation of a novel into a play and a play into a novel should be restrainable, and we do not doubt that this reform will be carried into effect in any revision of the English law. It is, however, easy to see that hardship might arise from points of similarity between plays and novels not dramatised by their owners. As the British law now stands, a condition precedent to dramatic rights [indeed, under the Act of 1833 the only condition precedent) is that the play should exist. Under the new rule protection will be given although the property protected does not and may never exist. There seems, in short, to be some need for the precise definition of an 'adaptation ’ in this context, so that original dramatic work may be safeguarded from unfounded claims.
The present writer is able to state on the authority of the late Sir Henry Bergne that the decision of this country to dissent from the Declaration of Paris, 1896, was due, not to any crucial difference of opinion as to policy, but to the fact that our law did not enable this country to accede. If this be so, and the same view be now held, it is to be expected that England will now accept the rule, and fall into line as regards the publication of plays with the law of all Continental countries and of the United States. This would effect many sweeping changes in both law and practice. Unless otherwise provided, it would protect retrospectively in Great Britain plays first produced and still copyright in foreign countries. Dramatic pieces produced abroad under the Berne Convention are already protected against being adapted for the English stage by Order in Council, 1887, but such a change in the English law would have a much wider effect, and even the title to a mass of dramatic property would be affected. British plays, again, could commence their run in America without there being any necessity for going through the farce known as a 'copyright performance,' while American plays could wait for success at home without, as now, being protected on this side of the Atlantic simultaneously with their first production or the first publication of their novelised form.
Photographs, again, are to be admitted to protection in all countries apart altogether from their domestic status. By the Final Protocol of the 1886 Convention, they were declared to be protected in those countries which did not refuse to regard them as 'works of art.' Ten years later, by the Additional Act, 1896, they were admitted to the benefits of the Convention in so far as the laws of each State may
permit.' By the Berlin Convention they are to come under the general scheme, each country binding itself to accord protection, without, it would appear, any formalities being exacted either in the country of origin, or in the country in which protection is claimed. This is a very sweeping innovation, for in some countries photographs are not admitted to copyright at all, but are granted a limited protection as industrial works. It will further conflict with some independent treaties regulating rights in photographs between countries inter se.
In Great Britain a photograph must, to secure protection, be registered by the copyright owner or his assignee. Is it intended that under the Berlin Convention photographs shall be protected throughout the Union exactly like all other works without any formality whatever ? If this be so, photographs will be compulsorily protected throughout the Union. Ethically no doubt the position is a sound one.
A photograph is, or ought to be, a work of art, and the owner is, if he desires, entitled to protection against piracy. But in practice it is often impossible to ascertain the ownership of a photograph, and, in the absence of some overt declaration of ownership by registration or notice, an immense industry has arisen which is based upon the theory that unprotected photographs are in the public domain. Here, again, the absence of formality would entail great hardship and open the door to bogus transactions by pseudo owners. Our register has hitherto been a fairly effectual safeguard against blackmail, and surely if only regarded as evidence that all rights are reserved, its maintenance and international adoption would be far preferable to wholesale protection whether desired or not.
The extension of the translation rights to the same period as the original is another sweeping innovation which will unquestionably excite controversy. It is, of course, undeniable that when once the right to international protection is agreed it is inconsistent to restrict the right to any country. An author is equally entitled to protection in translation as in his mother tongue. He is, perhaps, equaly entitled to dictate whether, when, and on what terms and conditions a translation shall be issued in any part of the world. But prejudices die hard, and the present ten years' rule, which works fairly enough in the main, will, we believe, be regretted. The notion of reciprocity underlies all these grants when once we get away from first principles and look upon copyright as the fruit of endeavour. A foreign author who does not think it worth while to issue a translation of his work of sanction one being issued would, of course, be in a position to restrain it sine die. Under the House of Lords Bill, it was, somewhat clumsily, provided that on failure to produce a translation within a reasonable period it should be permissible to translate subject to a licence from the Board of Trade. Will it be to the public advantage that some such stimulus should be unconditionally removed ? For the author's claims to protection seem to lose much of their validity if the privilege
is not exercised. It would be useful if, when this question is dealt with, the crux of the author's right of translation in his own country could be settled. There are many Indian cases which go to show that such a right is not recognised by British law unless an author has produced a translation and so acquired a copyright in it as an original work.
The situation from an English point of view could not readily be more complicated. The Berne Convention, 1886, with the Additional Act, 1896, is incorporated with Imperial British law by Orders in Council, 1887 and 1898, and is part and parcel of it. More by luck than management it is operative in every British Colony, Canada never having carried into effect her threatened denunciation. But if the Berne Convention is to be abrogated, the whole business will have to be done all over again and under conditions of unparalleled difficulty. If Canada looked askance at the Berne Convention the Berlin Convention will meet with still scantier favour in the Dominion. It is impossible to avoid the impression that the situation thus created is not accidental. Great Britain has been publicly denounced as unpro
. gressive in Copyright Law Reform. The Berne Conference of 1896 passed a resolution condemnatory of the systems of both England and Germany. Germany has since mended matters more or less by the Act of 1901, but England has remained supine and enjoys the unenviable distinction of being the last Unionist country to formulate a Code. The present position has thus been forced upon us, and we have now to undertake fresh Imperial, Colonial, and International legislation in the most inconvenient form conceivable. A wholesale revolution in the Imperial law is involved before we are competent to ratify the Code, and it may be said at once that, with Colonial opinion to reckon with, it is gravely doubtful whether we shall be able to do more than accept a few isolated provisions, and, for the rest, fall back upon the present law. That such a course will be retrograde is true. More than that it will probably indefinitely postpone the acceptance by this country of the complete international agreement, and will perpetuate the existing system with many of its imperfections.
One certain outcome of the Convention is, however, hopeful. It is now placed within the limits of certainty that copyright legislation in the immediate future must be undertaken by the Government, apart altogether from the obligation to procure the authority of Parliament to the Code or so much of the Code as may be supported with any prospect of success. It will no longer be possible to defer dealing with the question itself at home in its entirety. It may, indeed, be hoped that the reform of the Domestic law will precede any attempt to modify the International Copyright Act of 1886 in order to render it applicable to the Berlin Convention of 1908. The alternative course could not be anything but disastrous, and would merely add another to the already innumerable patchwork Copyright Acts which are a blot
the Statute Book.
The Government have only to take occasion by the hand 'to carry through a great measure of reform. The existence in more or less settled shape of a Copyright Bill and Copyright (Artistic) Bill based on the findings of the House of Lords Committee, 1897–1900), which were mentioned in the King's Speech, 1901, and have since been in charge of the Railway Department of the Board of Trade, should serve to facilitate definite action at something more than the customary Parliamentary rate of progress. If it be true that the Colonies, with the exception of Canada, have signified their acceptance of the principles of the House of Lords Bills, we have a safe guide as to the lines of reform.
At home the history of comparative legislation affords no greater enigma than the attitude of a long line of Ministers towards the Copyright Question. If, for convenience, we date the era of reform in England from the Report of the Royal Commission, 1878-a report so full and authoritative that in any other country it must have commanded instant action-we have a sufficiently conclusive indictment. During thirty years literally dozens of Bills have been privately introduced only to be blocked or shelved, often officially, on every pretext a perverse ingenuity can suggest. The late Mr. Gladstone, on being appealed to in 1880, was content simply and perfunctorily to express his interest in the subject and commend it to the attention of private members. In 1886, the late Mr. Mundella, then President of the Board of Trade, would do nothing more than promise a most influential deputation that the Government would encourage the discussion of such an intricate and technical question in the House of Lords.' Fourteen years later, when this interesting process had been completed, the resulting Bills were promptly pigeon-holed once more, although they did attain the distinction of being promised in the Speech from the Throne.
A retrospective view of the tone and temper in which the question has been dealt with in Parliament leaves, indeed, room for nothing but amazement. It is almost beyond belief that so much hostility should have been aroused at every attempt to make laws for letters and art. Throughout the last two hundred years a bitter antagonism has been continued, with an unreasoning prejudice for which no parallel can be found. The cry of Privilege' and 'Monopoly' has always been enough to rouse a bovine fury, and every appeal of letters for justice has been met with these reckless shibboleths. No more popular argument has ever been invented than the necessity for restricting the duration of copyright in order to ensure the supply of cheap literature for the people. On almost every occasion when the question has been raised in Parliament, with the exception of the Copyright Act, 1842 itself a compromise—the rights of copyright owners have been narrowed. The first Copyright Act—which was actually described by one astute" expert' as the 'corner-stone of literary jurisprudence'