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THE LAW OF COPYRIGHT., Issue 8028, 3 October 1889
THE LAW OF COPYRIGHT.
For yesterday's issue there was only time to write up the concluding portion of Mr Justice Williams's judgment in Stone v. White. The judgment is particularly valuable, as stating the law on a subject concerning which there has been room for considerable argument, and we therefore print the full text of His Honor's decision : This case raises the interesting question as to whether the International Copyright Act, 1886, of the Imperial Parliament repeals by implication our copyright Ordinance of 1842. The question has to be determined mainly upon the Bth section of the Imperial Act. The first subsection of that section provides that the Copyright Acts shall, subject to the provisions of this Act, apply to literary or artistic work first produced in the British dominions in like manner as they apply to work first produced in the United Kingdom; and then follows a provision that if there is an enactment in any particular colony as to registration of copyright, it shall not be necessary to register the work sought to be protected at Stationers' Company in London, nor is it to be necessary to give a copy of the work to the British Museum and sundry other institutions in Great Britain. We have therefore this: that after the Act of 1886 the various British Copyright Acts have become law in New Zealand, and amongst them is the 5 and 6 Victoria, chapter 45. Any person, therefore, who publishes a work in New Zealand is now entitled to copyright under that Act of 5 and 6 Victoria, chapter 45, and the copyright endures for the natural life of the author and for the further term of seven years, but if the term of seven years shall expire before the end of the forty-second year from the first publication of such book the copyright shall in that case endure for such period of forty-two years; so that now iu New Zealand any author publishing a work has, by virtue of the Imperial statute, a copyright practically for the term of fortytwo yeara. He cannot, however, under the statute, bring any action in respect of the copyright, unless he registers it either in the colony (if there is provision for registration there) or at Stationers' Hall in London (if there is no Buch provision in the colony). In New Zealand there is no such pro--1 vision, and therefore to obtain the benefit of the Act it is necessary for him to register his work in London. Our local Ordinance of 1842 gives the author of any book which shall thereafter be printed and published the sole liberty of reprinting the book for the term of twenty-eight years from the first day of publishing the same, and also, in the event of his living after the end of that period, for the residue of his natural life. The effect, therefore, of the Imperial Act is to give in New Zealand a much longer term of protection than authors previously had, and also to give what the New Zealand Ordinance did | not and could not give—protection through- , out the British dominions for the same ' period. The New Zealand Ordinance did not require, before a person could sue in respect of the infringement of copyright, any registration whatever. The question there: fore is whether the greater right granted by the Imperiel Act necessarily supersedes the lesser right given by the local Ordinance. Whether it does so or not must be determined upon the construction of section 8 of the Imperial Act of 1880. Ic is plain that if possible the two rights should coexist, aud that being so, we have to look at the section to see if there is any indication of the intention of the Imperial Legislature that they should exist together, or that they should not, I was at first inclined to think that the Bth section of the Imperial Act of 1886 superseded our local Ordinance, but on consideration I am tolerably satisfied that that is not so. The first subsection of section 8 of the Act of 1886 implies tha£ there may be at the time of the passing of the Act a copyright law in force in any colony providing for the registration of copyright, and paragraph A of subsection 1 shows that at any rat 3it is not intended to repeal such a law. I think, however, that it is to subsection 3 of section 8 that we must principally look to see what the real intention of the Legislature was. That subsection says "that whe-e before the passing of this Act an Act or Ordinance has been passed in any British possession respecting copyright in any litelary or artistic work, Her Majesty-in-Council may make an order modifying the Copyright Act and this Act, so far as they apply to such British possession, and to literary andartisticworksfirst produced therein, in such manner as to Her Majesty-in-Council seems expedient." The meaning of that section is this; that if at the time of the passing of the Act of 1886 there were in any colony local provisions aa to copyright, and the Act of 1880 had incidentally the effect of giving the larger protection, the Queen might modify the Imperial Aot to bring it into consonance with the local Acts. Thus in our own case the local Legislature has declared it sufficient protection for an author to have copyright for a term of twenty-eight years only, or for life if he should live more than twenty-eight years after the book is first published. The Imperial Copyright Act _ gives a larger measure of protection, and it would be open under this section for the Queen, if she thought fit, so far as works published in New Zealand are concerned, to extend the protection given by the Imperial law within the limits prescribed by the colonial Legislature. The subsection plainly assumes that if there is a conflict as to the provisions of the local Act and the general Act, so far as works published in the locality are concerned, that it is competent for the Crown to assimilate the general law to the local law. That implies, of course, that the local law stands unrepealed. Fourth subsection I also of section 8 assists this contention, because it declares that the local Legislature, notwithstanding the Imperial Act, shall have power, so far as local publication is concerned, to pass in future any Ordinance they please. I think, therefore, that the plaintiff has a right to come and sue under the New Zealand Ordinance, though he has not registered his work as he would be bound to do if he relied on any right which the Imperial Act could give' him. With respect to the merits °* * ne case » ? am quite satisfied of this: that the plaintiff has expended labor and pains in compiling from original soorces the information which he has published. That, I think, looking'at the principle of the case, is sufficient to give him the right to have his labor protected. I am equally satisfied of this: that the defendant, or some person identified with the defendant, has taken as the basis of his railway guide time table the compilation of the plaintiff; that he has copied it in substance, has cut out portions of it and has added some trifling additions of his own; but that there has been a substantial copying, mistakes included, I think there can be no question. The only point upon which I have any serious doubt is whether, looking at the terms of the second section of the New Zealand Ordinance, the defendant has brought himself within it; whether, in short, the defendant has wrongfully published a book which plaintiff has previously published. The protection given by the New Zealand Ordinance is of a very limited and is by no means the protection which is given by the Imperial Act. On the whole, however, I looking at the decision of Mr Justioe Richmond, who granted the injunction in Wise and Caffin v. Wright, where parts only were taken, aud looking also at the fact that the really substantial and original part of the plaintiffs' publication is the 'ABC Guide,' I am inclined to think that that substantial part is a book within the meaning of the Ordinance. It has been suggested that an injunction ought not to go because this is an ephemeral publication. It is, however, stated in 'Slater,' page 195, " that where a defendant pirates a work and offers it for sale at a greatly reduced price, he will be restrained even though that work is wholly of an ephemeral nature." In the present case the production complained 'of is given away, so that there is no reason why'it should not be restrained. The injunction will therefore be granted.
THE LAW OF COPYRIGHT., Issue 8028, 3 October 1889
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