Canadian copyright editorials in the Toronto Telegram

The EDITH and LORNE PIERCE
COLLECTION 0/ CANADIANA

Queens University at Kingston

rSo\ZL

CANADIAN COPYRIGHT.

The following editorials have appeared in the Toronto Telegram,
and were from the pen of a gentleman thoroughly versed in the
question of Copyright. In these articles he deals with several
important points connected with Copyright in Canada.

THE BERNE CONVENTION.

In 1883 the authors of several of the leading Continental States,
feeling that great inconvenience was caused by the differing copy-
right laws of different countries, and by the distinction which in
many countries existed between the rights of foreigners and natives,
met together at Berne to consider the matter. They recognized
the fact that they could not hope to make a uniform copyright law
for all countries ; but they thought it possible that the natives and
domiciled residents of all the countries which might be brought to
concur, might be put upon an equal footing ; so that, for instance,
a French author might have in Germany ail the rights of a Ger-
man ; in Italy all the rights of an Italian ; in Sweden all the rights
of a Swede, etc., etc. This proposition was formulated to the first
Article of the Convention of 1883. It was repeated in the second
Article of the Diplomatic Conference of 1884. The proceedings
were in French. The following is a translation of the article : —

" Subjects or citizens of each one of the contracting States shall
enjoy in all the other States of the union, so far as the copyright
of authors in their literary and artistic work is concerned, the ad-
vantages which the respective laws of these nations now accord, or
in future shall accord, to native' citizens. In consequence they
shall have the same protection as native citizens and the same
legal recourse against infringement on their rights, when they
comply with the formalities and conditions demanded by the laws
of the country where the work originates."

SL

The formalities and conditions evidently refer to the regist
conditions, so that the principle formulated was simply this .
when an author has registered his work under the law of r
cation of his own country he should have all the benefit of *
isting laws of other countries to the same extent (and to no
extent ) as a native of that country could have. Thus a I I'jplett
author, having entered his book in France with the formal ; fioio
prescribed by the laws of France, would be held to have regist* ji Ki-
lt in all other contracting countries His copyright would do
invalid for defect of form, nor for defect of nationality, so that kinistr
copyright purposes a citizen of each contracting country wo tym
become a citizen of every other contracting country. He co
appeal as a native without discrimination to the same laws. T L En{
could never be done in the United States. The copyright 1; LpR
of that nation are for citizens only. No alien can acquire ce f$\
right. No work of an alien can be protected from reprint by f tpeU
precaution which can be taken. Every literary work of an al
is fair prize, just as formerly an Algerine corsair made prize of t
non -Mohammedan merchantman found upon the high seas.
is the present law of the most enlightened nation in the wor
The Berne Convention adopted another principle. It set q ?t
break down the national barriers and to enact a common
ization Act for all contracting nations, so far as literary
artistic property is concerned.

The Berne Convention did not set out to change the muni<
laws of each country, but the bill sent out from England lb,
parliament to pass (and which nearly slipped through) set 01
do just that thing. If any Canadian now writes a book and w^
a copyright in Canada he must print it in Canada. That was
principle deliberately adopted by Mr. Mackenzie's Government
1875, when the present Act was passed, yet we saw that in It
under a National Policy, an Act nearly slippod through in wh
that principle was abandoned.

The principle of the existing Canadian Act is the very same
that of the Berne Convention. The Canadians had anticipated y1.
It accords to the citizens of every nation, having an internatioi
copyright treaty with England, the siuno privileges as Canadii
upon the same conditions as Canadians. It does" not demand t
type-setting. The stereotype plates may be imported, bu it d
demand the printing in Canada. What the Berne Convention ,
been twisted into is the abandonment of printing books in Cana

A NARROW ESCAPE.

•e reading public of Canada have very little idea of the nar-

I escape they had during the session of parliament, from a

I aplete break up of the present system of supply of books and

riodicals. The bill which was to revolutionize the reading

4uts of the Canadians was suddenly sprung upon the house

u was to have been pressed through without delay. To do the

Ministry justice it should be said that from the wording and from

^e unexpected and sudden way it fell from the clouds, it was

idently prepared in England, and sent out in] the interests of

Tie English publishers. Its wide reach was not perceived until

iie newspaper abstracts attracted the attention of a few who could

/Vad between the lines, when it was seen to be in reality an act for

compelling Canadians to buy all their books in England, and to

ender contraband all other editions but those published there.

iTnw, if the British publishers would rise to the level of their privi

^©8 and publish with a view to the whole Empire, such a bill

hight have some justification, but they had not done so and never

kil' do so. They publish with a view to the narrow English circu-

i:\ g library system — to the Mudies and Smiths of the great Eng-

cities — a system adapted only to dense centres of population,

I which utterly ignores the fact that in countries like Canada

l methods are inapplicable. The bill which was held over at

ast moment was aimed to introduce this system into Canada.

irould have shut off the supply of new books from the farmer

d artisan, and, making our parliament a catspaw for the London

blishers, would have made reading a luxury for a few rich peo-

in large cities. The people of Canada will not be content to

w forty -two years for their cheap edition — until, in short, the

opyright has expired. They want to read books while they are

e v, and while the newspapers are discussing them.

Opening at random the London Bookseller, for October 9th, we
ind among the new novels, to appear early in October, " In Far
uochaber," by William Black, in three volumes, crown octavo,
Us. 6d, equal by mere difference in money to $7.50, without
counting duty and freight. This book may be had at the pres-
et instant at our bookstores for SI. 25, in a handsome library
time, and at 40 cents in paper. Had the English publishers,
).ti become law all editions but that at $7.50 would be contraband,
ind liable to seizure at the frontier and in the bookstores. Some
ime next year there will no doubt be an English edition at 6s. ; but

by that time we shall have forgotten all about the book. We can-
not wait in Canada until all the circulating library folks in Eng-
land are quite done reading a book before we commence to see
the 6s. edition of it, and that price even is too high. If, however,
we wish to wait forty -two years we shall be able to get a 2s. or
50c. edition from England.

Then, again, if such a bill should ever pass, we shall have to do
without Blackwood's Magazine, or pay 75c. a month for it. The
quarterlies will cost $1.50 each number. Littell's Living Age and
the Eclectic and all periodicals which contain anything selected from
English sources will be contraband. The sale of the New York
papers, with Dr. McKenzie's account of the Emperor Frederick's
illness would be illegal. The consequences of such legislation
would reach to the most remote settlement in the distant North-
west. It would compel the employment of a special staff to
enforce it, and throw this country entirely, for its reading, upon
the original productions of American authors.

THE PROPOSED COPYRIGHT BILL.

Those who drafted the proposed Copyright Act have not drawn
it upon any narrow plan of class interest. Such an attempt would
have been foolish. The points to be kept in view are these : — 1st.
Nothing ought to prevent the importation of the original English
edition. Therefore, all who have the means to buy the best
editions and all public libraries, which must have the original
edition, should be able to do so. 2nd. The public ought to have
cheap editions of new books, suited to the needs of the country.
3rd. The authors ought to receive an assured royalty upon every
copy of their books sold. 4th. If the author will not publish his
book in Canada Canadians ought to be allowed to do so upon
securing to the author his royalty. 5th. Canadian copyright
ought to be conditioned as in the case of patents, upon Canadian
manufacture.

All these considerations have been embodied in the proposed
bill. It is a bill framed in the interests of buyer, seller, manufac-
turer and author, and as such is in the lines of a National Policy
in the truest sense of that phrase. Take again, as an illustration,
Mr. Black's new book "In Far Lochaber." He has sold to his
United States publishers the Canadian market, and he holds over

any Canadian who prints his books the terrors of the Imperial
statute of 1842. This is not a question of price, for the United
States publishers are demanding as a right the Canadian market,
and refuse to buy from the English author unless our market is
thrown in. This the Canadian printer sees to be unjust, and he
resents the antiquated law by which it can be done. The author
practically says : It may be that you cannot buy my $7.50 (31s 6d)
edition, but you must then buy from Harper's ; for I have sold
your market to them. This is a high-handed way of treating this
country, and no law ought to be permitted to exist by which it
may be done. Here is another case showing to what extremes
these may lead. A bookseller who had a regular account with
the publisher of Liddle & Scott's small Greek Lexicon ordered two
dozen copies with some other books. All came but the Lexicon,
and he was informed that the Canadian market for that book had
been sold in Boston. Now the usual retail price in Canada had
been $2.25, but the Boston price was $3, plus Canadian duty of 15
per cent, and charges. The Canadian bookseller was thus re-
quested to pay the U.S. duty of 25 per cent., and the Canadian
duty of 15 per cent. Of course he would not do that, but bought
the book from a London jobber. The illustration is given merely
to show how completely Canada is considered to be an appendage
to the United States.

The new bill proposes to secure to the author a royalty of ten
per cent, upon the retail price of every copy of his book which is
exposed for sale. This is the almost universal percentage to native
authors in the United States. The abortive Act of 1872 proposed
12| per cent, upon the wholesale price, which was too uncertain a
basis.

Under the proposed bill the author may secure for himself a
monopoly if he will print his book in Canada, but he may not
transfer this market to his U.S. assigns, and hold it against the
Canadians themselves. If the author will not provide for this
market, any printer may, after a fixed time, do so ; but that printer
will not thereby secure a monopoly against other Canadian print-
ers. Others may print the book, but always the author gets his
royalty from all. To- secure a monopoly will be possible only to
the author himself, upon printing in Canada, and always under
the proposed bill the market will be open to the author's own
English editions.

Finally, the proposed bill is only intended to cover English
authors or such countries as may have an International Copy-
right treaty with England. It is expressly aimed to prevent the

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abuse of the Imperial statute of 1842 by which the United States,
while refusing to grant copyright on any terms to other than its
own citizens, can yet obtain copyright in England, and conse-
quently in Canada, for the works of United States citizens. It is
not that Canadians care specially to afflict the American author for
the sins of the potiticians ; but that they abominate all sorts of
jug-handled law, either in books or fish or lobster cans.

CANADIAN COPYRIGHT.

There is no assertion more frequently reiterated than the asser-
tion that this Dominion makes its own laws ; yet it is not true as
regards copyright. The Imperial Government has year by year
relaxed its control over our legislation until everything is con-
ceded but this one thing. We make our own tariff ; we raise our
own troops ; we regulate our own Patent laws, but our Copyright
law is dominated by an Imperial statute passed in 1842, which
still binds us. Time and again our Government has represented
to the Imperial authorities that we are competent to attend to our
own copyright legislation. A statute passed in 1872 by the Can-
adian Parliament on the subject was reserved and never received
the royal assent. The existing Act of 1875 was also reserved and
after much discussion the Imperial Parliament passed an Act, Aug.
2 1875, entitled " An Act to give effect to an Act of the Parlia-
ment of Canada respecting Copyright," so that it is manifestly
incorrect to say that Canada legislates for herself, and this may
also be seen on reference to the case of Smiles vs. Belford, (vol.
23 Grant's Chancery Reports) where the Imperial Act of 1842 will
be found to have been enforced in Toronto. This state of matters
ought not to exist. If our parliament is competent to legislate in
regard to anything it is competent to this subject also. There is
no difference between a patent and a copyright in principle. Our
law protects the inventor, if he will manufacture in Canada ; but
if after two years he will not do that, he ceases to be protected.
The Canadian statute of 1875 gives protection to every book
printed in Canada by an author living anywhere in the British
Empire or in any country which has an international copyright
treaty with Great Britain, but the book must be printed in Cana-
da. The Imperial Act steps in and says : " The book may be
pouted anywhere, but if it is nrttt published in England, it shall

also be copyright in Canada.'' Against this the Government of
Canada has always protested, In 1870, the Canadian Govern-
ment forwarded to England a minute of the Privy Council for
Canada, which laid down the principle that the people of Canada
will'never consent to the extension of copyright without local pub-
lication. This principle was near being abandoned by a bill which
was brought in during last session. It would indeed have been
inconsistent for a Government pledged to a National Policy to have
gone back upon a principle like that laid down before the National
Policy was adopted by the country.

The anomaly of the Copyright law will at once appear if it be
applied in the case of a patent. If a patentee in England were to
sell the Canadian market to a United States manufacturer, and, if
in spite of our patent law, he could secure a monopoly of our mar-
ket to his United States assigns, the patented article which might
be the subject of such a deal would never be made in Canada, and
an immediate outcry would arise. But in the case of books a
similar thing is done every day. Black's new book, " In Far
Lochaber," is protected by the Imperial Act of 1842, and may not
be printed in Canada. Our Government has offered time and again
to secure a royalty to the author, but its offers have been refused,
and the Imperial Parliament still insists on regulating our literary
affairs. We may import the United States edition or pay $7.50
for the English edition ; and now we are threatened with another
turn of the screw under the Berne Convention, so that we shall be
shut up to the English edition or do without. Mr. Black's novels
are not of much importance, but there are many books we shall
find it hard to do without. And yet we talk of the autonomy of
Canada.

COPYRIGHT UNDER TWO GOVERNMENTS.

In a previous editorial it has been shown how firmly Sir John
A. Macdonald's Government in 1870 insisted on the principle that
there never should be local copyright without local printing. It
has also been shown that Mr. Mackenzie embodied this principle in
his statute of 1875, still in force. The Government of Sir John
went further. It passed a statute which was disallowed, but which
was in principle identical with the one prepared by the Copyright
Association of Canada now. The substance of it was that when an
English author did not himself print an edition of his book in Can-

ada, a Canadian might do so upon paying a royalty of twelve and
one half per cent, upon the wholesale prince. The English pub-
lishers refused to consent to this, and the English Government, at
their dictation, disallowed the act. The principle it contained is
conveniently termed " the Royalty System. '' It was objected with
great force that "wholesale price" was too shifting & datum upon
which to base the royalty. Other objections were urged, which it
is not worth while to discuss at this distance of time. The Cana-
dian Government of the day was restive under the snub of the dis-
allowance of their bill. Lord Carnarvon, in his despatch of June
15, 1874, said plainly that he had advised her Majesty not to assent
to it, because the Imperial Act of 1842 was in force in its integrity
throughout Canada, "in so far as it prohibits the printing in Can-
ada," and he added that, even if the royal assent had been given,
the bill would have been invalid, because by the Colonial Laws
Validity Act ( 28 and 29 Vic, chap. 63) u Any part of a colonial
law which is repugnant to an Imperial Act extending to the colony
in which such law is passed is pro tanto absolutely void and in-
operative." The Canadian Pacific scandal and the change of
Government which resulted in Canada, so occupied public atten-
tion that this question was not argued, but Mr. Mackenzie did not
however, give way. He did not concede one iota of the principle
laid down by his predecessors. He- passed an Act which stated it
again and avoided clashing with the Imperial Act, while not recog-
nizing its existence in any way, thus leaving the question uncom-
plicated for future action.

The Canadian proposition of a " royalty" met, however, with
many advocates in England. Many of the members of Copyright
Commission were in favor of it, and the pressure was so strong
that the publishers drew up a projected bill conceding it. This
bill never went before the House of Commons, and the Canadian
political people were too busy with Pacific scandals to think of
books. So there was nobody to press the matter. The proposed
bill adopted the " royalty system" to the fullest extent ; but, in
order to render the collection certain, it limited reprinting to such
process as might be licensed for that purpose. The English pub-
lishers could not think of any other way by which the collection
of the royalty could be insured. There were other objectionable
features in the bill ; anyone, however, who knows ( 'anada will see
that no Government would consent to be kept in hot water by a
system of licensing presses. The owner of every newspaper in the
country would have ;» license or make things disagreeable Cor the
local member. The point to observe is that tlie royalty principle

is conceded. Now, this principle is the key note of the bill pro-
posed by the Canadian Copyright Association.

The royalty system then, we repeat, was propounded by Sir John
A. Macdonald, in the Disallowance Act of 1872. It was propound-
ed in the Draft Act of the English publishers in 1873. It was
supported by many important names on the Copyright Commis-
sion of 1878, and it is now the basis of the present movement in
Canada. The English bill which our Government was almost de-
luded into passing was intended to inaugurate in Canada a system
which (to quote the words of Sir Drummond Wolff, one of the
Copyright Commissioners,) " has and can have no analogy in any
other trade— viz., that of circulating libraries — by which means
the price of books, to the great detriment of the reader and pur-
chaser, is artificially kept up at a rate far beyond the cost of pro-
duction."

THE NATIONAL POLICY OF ENGLAND IN
LITERATURE.

It is safe to say that everywhere the primary idea underlying
copyright statutes is that the work shall be printed in the country
where the statute is made. Municipal law is necessarily enacted
for the citizens and residents in each respective State. In Canada
we are bound by our own copyright law ; but we are bound also
by an Imperial statute passed in 1842. This cast-iron act con-
tains the following extraordinary provisions : —

" This Act shall extend to the United Kingdom of Great Britain
and Ireland and to every part of the British Dominions." " British
Dominions shall be construed to mean and include all ports of the
United Kingdom of Great Britain and Ireland, the Islands of Jer-
sey and Guernsey, all parts of the East and West Indies, and all
colonies, settlements and possessions of the Crown which now are
or hereafter may be acquired."

There is no other statute, excepting that of the Royal Suprem-
acy, which has such a sweep. Every other statute has some regard
for the varying circumstances of the manifold races under the sway
of Great Britain. Every other takes tacitly into account the near-
ness or remoteness and the previous history of the territory legis-
lated for ; but this statute regards nothing but the interests of the
manufacturer in the British Islands. It extends to every posses-
sion as soon as annexed to the Cr^own. The arms and diplomacy

10

of England carry with them, not the English religion, not the
English law of murder or theft, not the English civil or criminal
law, but only the supremacy of the Crown — and of the circulating
library ?

Let notour readers suppose that the juxtaposition of the circul-
ating library with the British Crown is paradoxical. The absur-
dity is in the law, and the British Draft Act, which nearly slipped
through last session, would have brought it home to us. People
who live in England do not buy new books; they borrow them, and
book publication is dominated by Mudie's library, which has prac-
tically swallowed up all others but Smith's. They cannot afford
to buy. In France Daudet's last novel is published at three and
a half francs, or 70 cents, which of our money is the standard price
for new books , but in England Mr. Black's last novel is publish-
ed at 31s 6d or $7 50 of our money. A Frenchman at Tonkin can
afford to buy Daudet, but a Canadian on the Mackenzie Kiver can
neither buy Black nor subscribe to Mudie. He must wait until
Mr. Black dies, and then, seven years after, when the copyright
runs out, he may have the book in a 2s. edition if he be alive to
read it.

This far-sweeping Imperial Act of 1842 may be supposed to
embody the National Policy of England as regards literature, and
on reference to the 17th section, it will be seen that the protection
it grants is to " any printed book first composed or written, or
printed and published in any part of the said United Kingdom."
How narrow is the purview when the manufacture is concerned !
— the printing and publishing must be first in the British Islands ;
but the penalty extends to every person who " shall import or
bring for sale or hire" or "who shall have in his possession " any
reprint of any work so protected throughout '* any part of the
British possessions." It must be borne in mind that the Act was
passed 45 years ago, before the age of fast ocean steamers and of
telegrajDh cables, and first publication necessarily carried with it
the manufacture. Judicial interpretation it is asserted, has pared
down the statute to demand only just publication, but there is no
authoritative decision bearing upon that precise point. In 1874,
in dementi v. Walker, the principle was laid down that the print-
ing must be done in Great Britain. Lord St. Leonards, in Jeffrey
v. Boosey, held the same view. Baron Pollock said " the object
of the legislature is not to encourage, the importation of foreign
books and their first publication in the country." Lord Chan-
cellor Cranworth said, " If a foreigner having composed, but not
having published, a work abroad, were to come to the country

1 1

and, fch3 week or day after his arrival, were to print and publish it
here he would be within the protection of the statute." From all
which it is plain that the national policy of England in literary
matters as laid down in the Act of 1842 was to demand the manu-
facture of the book in Great Britain as a condition of copyright.
This is precisely what Sir John A. Macdonald's Government en-
acted in 1875. * Both parties are at one. Here at any rate is a
question of public interest where party politics cannot be invoked.
To the supremacy of the Crown all parties cheerfully bow ; but
the supremacy of Mr. Mudie is unsuited to the conditions of this
country, and if any such act as the Draft Act of last session is
passed it will press upon the people in a thousand ways un-
dreamed of by the Government, and will raise an outcry very
little anticipated by members of parliament.

Published by Canai ian Copyright Association.