and the Dominions and the relations of the United Kingdom and foreign countries in this question. A further reform, which is surely desirable in the constitutional relationships between the United Kingdom and the Dominions in this regard, is the abolition of the absurd rules regarding the insertion of suspending clauses in legislation regarding registered and coasting shipping:1 these clauses ought not to be necessary if the principle of the division of powers of legislation is clearly recognized, and there is no just ground on which the autonomy of the Dominions in this matter should be hampered and fettered. The proper mode of dealing with objections to the terms of intra vires legislation is by representations from the interested parties, supported where proper by the views of the Board of Trade, as is done in the case of foreign shipping legislation affecting British vessels through the Foreign Office. It is not unnatural that the Legislature of a Dominion should feel some surprise that legislation which is freely passed by the United States should be questioned and held in suspense when enacted by the Dominion. Moreover, the United States precedent is an unhappy one, for that country in its merchant-shipping legislation frequently contravenes the rules of international comity, as in the famous Harter Act, which in its application in the Commonwealth,2 New Zealand,3 and Canada, has been much modified and limited in operation to shipping documents entered into in these Dominions, or in respect of the carriage of goods from these Dominions, while the American Act purports to regulate both carriage to and carriage from the States. It is of course certain that with increased freedom of legislation British shipping might be exposed to some hampering rules, but it may be doubted if these would prove 1 Also as to Admiralty jurisdiction, 53 and 54 Vict. c. 27, s. 4, but approval before enactment is allowed in that case, which is far more convenient and is usually resorted to. 2 Act No. 14 of 1904. 3 Act No. 37 of 1911, amending Act No. 36 of 1909. very serious in practice: the difficulties imposed by American legislation, however severe in theory, have hitherto always been overcome. What is probably more serious is already in progress the cessation of Imperial legislation for Dominion shipping outside the United Kingdom, which is seen at its full development in the case of the Merchant Shipping (Convention) Act, 1914, has led to the danger that Dominion legislation will lag seriously behind the British legislation. In Canada, for instance, the improvements of the 1906 Act regarding merchant shipping have not yet been adopted, and the law regarding accidents and collisions and salvage, which introduced a new standard for the apportionment of damage, remained unaltered in the Dominions long after the passing of the necessary legislation in 1911 in the United Kingdom. This failure to act, however, is a mistake which in due course Dominion Legislatures will outgrow it is probable that part of their slowness of movement has been due to the complications of the form of legislation. An instance of the possible danger of this position can be seen in the recent Imperial British Ships (Transfer Restriction) Act, 1915,1 which provides that with effect from February 12, 1915, any transfer of a British ship or a share therein to persons not qualified to own a British ship shall be subject to the approval of the Board of Trade on behalf of His Majesty, and the attempt to make a transfer without such permission shall be a misdemeanour, apparently wherever the attempt to transfer is made, whether within or without the British Islands. But the Act applies only to British ships when not registered in one of the self-governing Dominions,2 and accordingly the position is that the passing of legislation with regard to their registered ships is necessary to bring about a similar prohibition, and such legislation would apparently have to be reserved or to contain a suspending clause, and cannot come into force until the pleasure 1 5 Geo. 5, c. 21. 2 For this purpose and that of the Act of 1914 the Commonwealth includes Papua and Norfolk Island, these being territories under the Commonwealth Parliament, the latter since 1913, Parl. Pap., Cd. 7507, p. 63. of the Crown is formally signified in the Dominion. This position of affairs is not so serious as might be thought, since probably the actual number of ships which would be transferred to undesirable owners is small, but it remains the fact that if legislation were to be passed it would be a slow business. CHAPTER XI COPYRIGHT THE subject of copyright is of considerable interest, inasmuch as no question ever raised more heated feeling between Canada and the United Kingdom, and in no matter did the United Kingdom adhere more firmly to a point which constitutionally it had no right to press as a matter of right. The question is also curious as showing the remarkable power of the publishing interest in the United Kingdom, which was able for years to thwart the demands of Canada urged on grounds of constitutional law which can hardly possibly be gainsaid. The fons et origo mali was the Imperial Act of 1842 (5 & 6 Vict. c. 45), which, enacting the principles of the law of copyright, applied the principle to the colonies then existing, and thus gave to any work which was copyright in the United Kingdom a copyright which was automatic and unconditional in Canada. The difficulties of the position were soon felt; and the Imperial Government in 1846 admitted that the colonies must be given the right of regulating the terms on which reprints of works issued in the United Kingdom should be allowed to be imported from the United States into the colonies, the rule being laid down that provision must be made for charging a royalty to be paid to the author of the original work. In 1847 this was carried out by an Imperial Act which allowed of the suspension of the prohibition in the Imperial Act of any importation of copyright works in pirated copies, where arrangements were made that the importation of reprints should be charged with a suitable duty. This solution of the question was, however, temporary only, for more acute questions developed with the coming into operation of the Berne Copyright Convention, and the anxiety of the Imperial Government to secure some measure of protection for foreign copyright in the United States of America, a country whose policy of blackmail in copyright matters was then at its most perfect stage. The Dominion was consulted and definitely agreed of its own will to join the Berne Convention,1 and thus it bound itself, so long as it should be a member of that Convention, to refrain from passing any law which made the recognition of copyright in foreign works protected by the Convention dependent on the printing of the work in the Dominion. This disability would have been of little importance, had it not been that the Imperial Government succeeded in obtaining from the United States a very feeble measure of protection for British works, on the understanding that the law of copyright throughout the Empire forbade the insistence on printing in any special place as the condition of copyright. The agreement was ludicrously unfair, as the American copyright conceded was essentially dependent on printing in the United States, while the United States author had merely to publish his book in the United Kingdom, which meant putting a few copies on sale there, and by that act he attained a copyright co-extensive with the British Empire. The result to Canada was obvious: the printers saw that the author of a Canadian book found it more convenient and preferable in every way to set up the type in the United States and then to publish the work in the United Kingdom, by which he obtained copyright for his book in Canada. The author of a work in the United Kingdom similarly, when he desired United States copyright, had the type set up there, and then, by publishing in the United Kingdom, obtained copyright in the Dominion. The matter was made more annoying by the action of British publishers, for they used regularly, even when a book was printed both in the United Kingdom and in the United States, to sell the Canadian market to the American publisher instead of supplying it with the English edition. The resentment felt by Canada took its shape in 1889 in 1 Parl. Pap., C. 4606, 4856, 4910, and 5167. 2 Parl. Pap., C. 2870 and 6425. |