Sect. 9. by the proprietor (1). The question of novelty must be deter- Chap. VIII. mined by ocular comparison, and it is immaterial to consider whether there is any utility in the design (m). SECTION IX.-INTERNATIONAL COPYRIGHT. copyright. THE International Copyright Acts, 1844 to 1886, empower International the King, by order in Council, to direct that as regards literary and artistic works first published in a foreign country, the author shall have copyright therein during the time specified in the order not exceeding the period during which authors of the like works first published in England have copyright (n). The 19th clause of the International Copyright Act, 7 & 8 Vict. c. 12, which enacts that no author of any book or dramatic piece, which shall be first published out of the British dominions, shall have copyright therein, otherwise than under the provisions of the Act, applies to British subjects first publishing in a country with which no international convention exists (o). A British author who first publishes in a country with which a convention has been made under the Statute is entitled to protection. If no convention has been made with the country in which he first publishes, he cannot be protected (p). In the case of dramatic compositions, the public representation is a publication within the meaning of the Statute (q). "Published " in sect. 11 of the Act of 1886 includes the case of exhibiting a painting; and the country where it is first published is the country of origin, so that compliance with the formalities of the law of that country gives the owner the right to sue here (r). Chap. VIII. Translations. Newspapers The expression "literary and artistic work" means every book, print, lithograph, article of sculpture, dramatic piece, musical composition, painting, drawing, photograph and other work of literature and art, to which the Copyright Act or the International Copyright Acts, as the case requires, extend (s). Where a book being a book or dramatic piece is first produced in a foreign country to which an order under the International Copyright Acts apply the author or his lawful representatives shall for the period of ten years from the publication of the original work have the same right of preventing the production in or importation into the British dominions of any translation not authorised by him of such work as he has of preventing the production and importation of the original work (t). The law relating to copyright applies to a lawfully produced translation of a work in like manner as if it were an original work (u). If at the end of ten years he has not published an authorised translation he loses this right, but if he has published such a translation the right is co-existent with his copyright (r). The translation need not be absolutely literal; it is sufficient if it is substantially a translation (y). Articles from newspapers or periodicals published in any of and periodicals. the countries of the Union may be reproduced in original or in translation in the other countries of the Union, unless the authors or publishers have expressly forbidden it. For periodicals it is sufficient if the prohibition is made in a general manner at the beginning of each number of the periodical. This prohibition does not apply to articles of political discussions or to the reproduction of the news of the day or current topics (2). (8) 49 & 50 Vict. c. 33, s. 11. See Ord. in Council, 2 Dec. 1887, 1st Sch. Art. IV. (t) 49 & 50 Vict. c. 33, ss. 5, 9, Ord. in Council, 2 Dec. 1887, 1st Sch. Art. V. (u) 49 & 50 Vict. c. 33, s. 5, sub-s. 3, Ord. in Council, 2 Dec. 1887, 1st Sch. Art. VI. (x) This seems to be the effect of the section. (y) Lauri v. Renad, (1892) 3 Ch. 402. (2) Ord. in Council, 2 Dec. 1887, 1st Sch. Art. VII. Sect. 9. Musical and The protection of the Acts applies to the public representa- Chap. VIII. tion of dramatic or dramatico-musical works, whether such works be published or not. Authors of dramatic or dramatico- dramatic works. musical works or their lawful representatives are, during the existence of their exclusive right of translation, equally protected against the unauthorised public representation of translations of their works. The protection of the Acts applies equally to the public performance of unpublished musical works or of published works in which the author has expressly declared on the title page or commencement of the work that he forbids the public performance (a). The proviso in 15 & 16 Vict. c. 12, s. 6, permitting fair Adaptations, &c. imitations or adaptations to the English stage of any dramatic piece or musical composition published in any foreign country does not apply to any dramatic pieces to which protection is extended by virtue of Order in Council, 2nd Dec. 1887 (b). Unauthorised indirect appropriations of a literary or artistic work, of various kinds, such as adaptations, arrangements of musie, &c., &c., are the illicit reproductions to which the convention applies, when they are only the reproduction of a particular work, in the same form or in another form, with non-essential alterations, additions, or abridgments so made as not to confer the character of a new original work (c). The author of any literary or artistic work first produced Act applies to existing works. before the date at which the Order in Council comes into operation has the same rights and remedies to which he is entitled under sect. 6 of the International Copyright Act, 1886 (d). Under the former law as to International Copyright the Registration not required. author of a literary or artistic work first published in a foreign country was not entitled to the benefit of the International Copyright Acts unless his work was duly registered in this country and copies of it had been duly delivered (e). But the (a) Ib. Art. IX. (b) 38 & 39 Vict. c. 12. (c) Ord. in Council, 2 Dec. 1887, 1st Sch. Art. X. (d) Ord. in Council, 2 Dec. 1887, 3; Lauri v. Renad, (1892) 3 Ch. (e) 7 & 8 Vict. c. 12, s. 6; Fairlie Chap. VIII. Remedy. Who may sue. Evidence of copyright. Importation of copies. Act of 1886, s. 4, provides that the provisions of the International Copyright Acts as to registration and delivery of copies of works shall only apply so far as is provided by the Order in Council. The Order in Council contains no such provision, and therefore registration is not necessary to give a right to sue for infringement (ƒ). An English author seeking to prevent infringements of his copyright in foreign countries must apply to the foreign and not to the English courts (g). The International Copyright Act, 1886, limits the duration of the term of copyright to that prescribed by the law of the country of origin of the proprietor. But when the right to sue in the country of origin is established the remedies are regulated by the law of the country in which the infringement takes place. Thus an injunction may be granted here, though such a remedy is unknown in the country of origin (l). In ordinary cases it will be sufficient in order to enable the author of a work protected by the convention to see that his name be indicated in the work in the accustomed manner. For anonymous or pseudo-anonymous works, the publisher whose name is indicated on the work is entitled to protect the rights belonging to the author. He is, without other proof, the lawful representative of the anonymous or pseudoanonymous author (i). The Court may when it is necessary require the production of a certificate from the competent authority to the effect that the formalities prescribed by law in the country of origin have been accomplished (). Copies of books wherein copyright is subsisting printed in foreign countries other than those wherein the book was first published may not be imported (1). Where an English copyright is subsisting in a book first published in a foreign (f) Hanfstaengl v. American (h) Baschet v. London Illustrated, (1) Ord. in Council, 2 Dec. 1887, 1st Sch. Art. XI. (k) 49 & 50 Vict. c. 33, s. 7. See as to application of the Act to Colonies, ib. s. 8 (2). (7) 7 & 8 Viet. c. 12, s. 10. country it is unlawful for any one without the consent of the proprietor of the English copyright to import into England for sale copies of the book published abroad though lawfully printed by the owner of the original copyright in the country. where the book was first published (m). Chap. VIII. SECTION X.-ACCOUNT, COSTS, ETC. WHERE an action for infringement of copyright is brought to a hearing and a perpetual injunction granted, the plaintiff is entitled to an account of profits as incidental to the relief by injunction (»). If the account is small, it is usually waived (0), but when it is not waived, the Court grants it upon principles which have been thus stated by Wigram, V.-C., in Colburn v. Simms (p). 66 The Court does not by an account accurately measure the damage sustained by the proprietor of an expensive work from the invasion of his copyright by the publication of a cheaper book. It is impossible to know how many copies of the dearer book are excluded from sale by the interposition of the cheaper one. The Court by the account, as the nearest approximation which it can make to justice, takes from the wrongdoer all the profits he has made by his piracy, and gives them all to the party who has been injured. In doing that the Court may give the injured party more in fact than he is entitled to, for non constat that a single additional copy of the more expensive work would have been sold, if the injury by the sale of the cheaper work had not been committed. The Court does not give anything more than the account" (q). The account is limited to the net profits actually made and the monies actually received by the wrongdoer (1). The |