its introduction into England, was considered, as in other
countries, to be a matter of state. “The press was,
therefore,” as Lord Erskine said, “wholly under the coercion
of the Crown, and all printing, not only of public
books, containing ordinances, religious or civil, but every
species of publication whatsoever, was regulated by the
King’s proclamations, prohibitions, charters of privilege,
and, finally, by the decrees of the Star Chamber”.  The
abolition of the court of star chamber and the final
expiration of the Licensing Acts during the reign of William
and Mary “formed the great era of the liberty of the press
in this country, and stripped the Crown of every prerogative
over it, except that which, upon just and rational
principles of government, must ever belong to the chief
magistrate in all countries, namely, the exclusive right to
publish religious or civil constitutions - in a word, to
promulgate every ordinance by which the subject is to live,
and be governed. These always did, and from the very nature
of civil government always ought, to belong to the
Sovereign, and hence have gained the title of prerogative
It is proposed
to enquire what are the “prerogative copies” which are now
the property of the crown as well as what rights by way of
copyright are enjoyed by the universities, and whether, and
to what extent, similar rights exist in Canada.
The law of
copyright in Canada presents a number of points of
difficulty and uncertainty, many of which have been left
unsettled by the enactment of the Copyright Act of 1921, 
which, modelled on the British act of 1911,  was intended
to constitute a comprehensive code of copyright law for
Canada and to resolve the doubts and uncertainties which
existed owing to the inadequate and complicated system under
which Canadian copyright could be obtained prior to 1924.
 Among the points which that statute has left
unclarified are those relating to the position in Canada of
the bar of the house of commons, as counsel for Carnan, the
bookseller, who resisted the supposed crown prerogative
copyright in almanacs.
Chitty, Prerogatives of the Crown (London, 1820), at
and 12 Geo. V, c. 24, revised as R.S.C. 1927, c. 32.
and 2 Geo. V, c. 46.
Canadian Copyright Act of 1921 came into force on January 1,
to the crown and to the universities. In order to
understand the difficulties which face any adequate
examination of this subject it is necessary to review
briefly the historical position of copyright generally in
England as well as in Canada prior to 1924 and the method by
which it was proposed, in the act of 1921, to pick up the
loose threads of that system and to bind them into a
comprehensive code. For this purpose an examination of that
branch of the law dealing with copyright in literary
productions will serve as an adequate guide to the situation
in regard to copyright generally. At any rate, copyright in
musical, dramatic, and artistic productions has little
relative bearing on the particular subject under discussion.
position of copyright prior to the enactment of the first
Copyright Act in England in 1709  may be said to have
been that copyright for the most part existed in the hands
of the printers and booksellers, rather than in the hands of
the authors.  Printing privileges were granted, in the
main, not to authors to encourage them to write, but to
printers to induce them to print suitable works already in
manuscripts Although there is no doubt that Caxton, upon
his introduction of printing into England in 1472,  could
have obtained a valid grant of monopoly under the common
law, he did not do so and printing thereupon became free to
the public upon its introduction and disclosure. Caxton was
never made king’s printer, the first to describe himself as
“Regius Impressor” being Bartlet in 1503. The first
recorded example of a printing privilege was that granted to
Bartlet’s successor, Richard Pynson, in 1518  and from
that date until well into the seventeenth century, the
practice of granting printing privileges became the
effective means of controlling and censoring the publication
of books. 
Anne, c. 19.
W. Pollard, Shakespeare’s Fight with the Pirates
(Cambridge, 1920), p. 2. 8. 8. C.B. Judge., Elizabethan
Book-Pirates (Cambridge, 1934), p. 5.
statement that Caxton introduced printing into England at
this date is disputed. It is claimed that the art of
printing was practised at Oxford as early as 1468.
Bowker on Copyright (1912), at p. 21 states that the
first English copyright to an author was issued in 1530 to
John Palsgrave who received a privilege for seven years for
the printing of a French grammar prepared at his own
expense. The first complaint of infringement seems to have
been made in 1533 by Winken de Worde, who complained that
Peter Trevers had infringed upon the patent of privilege
granted to him by Henry VIII for the printing of Witinton’s
The basis of the exercise of these royal restraints upon and
regulations of printing is not clear. Some authorities
state that the right flowed from the statute of 2 Hen. IV,
c. 15 against heresy. Others base it upon prerogative.
However, the idea of prerogative control over printing was
shown to be a fallacy by Lord Mansfield
[in Millar v. Taylor, (1769) 4 Burr.
2404. But, while Lord Mansfield disproved the idea of
prerogative control over printing he did not, as some
subsequent writers and courts have supposed “shatter the
idea of prerogative” as a basis for the existence of crown
copyright nor did property replace prerogative as the basis
of copyright by the time of Lord Mansfield. Copyright and
the right to grant patents of the exclusive right to print
are matters quite different from, and must not be confused
with, the control of printing. If patents of monopoly with
respect to manufactures and the industrial arts were validly
within the exercise of the prerogative, as the decisions in
Davenant v. Hurdisy (1599) Moore K. B. 576; Darcy
v. Allin, (1603) Moore K. B. 675; and the
Clothworkers of Ipswich Case, (1615) Godb. R. 252 held
they were, there is no reason to suppose that patents for
printing were in any different position. The view of the
common law on the validity of monopoly patents was that they
were valid if for the good of the realm. Obviously,
printing would fall into the same class as the industrial
arts for that purpose, and this view is strengthened by the
provisions of section 10 of the Statute of Monopolies which
excepted patents for printing from the prohibitions of the
on page 100 of original
basis of copyright prior to the first Copyright Act of 1709
 must be looked for in the various proclamations
regulating printing, the records of the stationers’ company,
the proceedings of the courts of star chamber and high
commission and the various licensing acts. Proclamations of
Henry VIII issued in 1533  and in 1538  restrained
importation and sale, and an order of the privy council of
August, 1549 prohibited printing and sale of books except
upon approval of one of the secretaries of state.  A
decree of the star chamber in 1556, confirmed by further
decree of June 29, 1566, regulated the manner of printing
and restrained it within limits prescribed in the order. By
statute of 1559, the printing of books was forbidden except
the same was first licensed by the queen by express words in
writing or by six of her privy council, or by certain
specified ecclesiastical officers. Further provisions for
the licensing of printing were made by the decree of the
star chamber of June 23, 1585, the proclamation of September
25, 1623, and the decree of the star chamber of July 11,
company, created by Henry VIII, was incorporated by Queen
Mary on May 4, 1556 with the declared object of preventing
the advancement of the protestant reformation. Although it
had existed as one of the craft guilds since 1403, there are
no records of its history prior to 1554.  By its
charter its members were granted the sole right to print
throughout England, excepting the holders of the royal grant
Anne, c. 9.
Hen. VIII, c. 15.
Cf. Bowker on Copyright, at pp. 19-20; Pollard,
Shakespeare’s Fight with the Pirates, pp. 5-6.
Judge, Elizabethan Book-Pirates, p. 15.
Cf. E. Arber, 1 Transcript of the Registers of the
Stationers’ Company (London, 1875-94), pp. xix-xxiv.
upon its wardens was conferred the power of search and
seizure of any books printed contrary to the form of any
statute, act, or proclamation. The charter was confirmed by
Elizabeth in 1559. Printing without prior registration and
the printing of another member’s book were punished by fine.
In Millar v. Taylor, Willes J. observed: “In 1558,
and down from that time, there are entries of copies for
particular persons. In 1559, and downward from that time,
there are persons fined for printing other men’s copies. In
1573 there are entries which take notice of the sale of the
copy and the price. In 1582, there are entries with an
express proviso, ‘that, if it be found any other has a right
to any of the copies, then the license touching such of the
copies so belonging to another shall be void’.” 
The sole right
of printing a work, whether obtained by royal grant or by
registration on the books of the stationers’ company and
subsequent transmission, was, by the end of the sixteenth
century, regarded and accepted as a proprietary right.
While the court of star chamber  acted in protecting
infringement as a contempt of royal prerogative, it is
obvious that, once it accepted the doctrine that a right
flowed from recording a “copy” in the registers of the
stationers’ company, in accordance with the decree of 1585,
that right was recognized as a right of property. 
Although the by-laws of the stationers’ company protected
none but its own members, nevertheless at common law an
author of any book or literary composition had the sole
right of first printing and publishing it for sale, and
might bring action against any person who printed,
published, and sold it without his consent. 
Until the year
1640, the crown exercised an unlimited authority over the
press, which was enforced by the summary powers of search,
confiscation, and imprisonment conferred on the wardens of
the stationers’ company, and by the jurisdiction of the star
chamber, which were not interfered with either by the courts
at Westminister hall or by parliament. But in 1640
(1769) 4 Burr, at p. 2313.
The court of high commission exercised a like jurisdiction.
Cf. Reports of Cases in the Courts of Star Chamber and
High Commission (Camden Society, 1886), at pp. 274, 296,
304, 305, 314, 321.
no other principle could the court have entertained
proceedings based upon a right which had been the subject of
transmission, whether upon death, as in the case of
Richard Day et al. v. Ponsonby et al., 1585, Star
Chamber, Eliz. D.4/1; D.28/7; Arber, 2 Registers of the
Stationers’ Company, 790-3, or upon purchase, as in the case
of Christopher Barker v. Stafford, (1598) Star
Chamber, Eliz. S.7/22; referred to in Arber, 2 Registers
of the Stationers’ Company, and Judge, Elizabethan
Book-Pirates. See also Ponsonby v. Legatt and
Waldegrave, (1599) Star Chamber, Eliz. P.5/6; Records of
the Court of the Stationers’ Company, pp. 82-8.
Millar v. Taylor, (1769) 4 Burr, 2303, at p. 2376 (per
parliament abolished the court of star chamber and all
regulations of the press and restraint of unlicensed
printing, by proclamations, decrees of the star chamber, and
charter powers given the stationers’ company, were swept
aside as illegal. The rapid spread of licentious and
libellous printing caused parliament to pass an ordinance in
1643 prohibiting printing, unless the book was first
licensed, and entered in the register of the stationers’
company. This was followed by an ordinance of 1649
prohibiting the printing of any book legally granted, or any
book entered without the consent of the owner.
Then came the
Licensing Act  of 1662, prohibiting the printing of any
book unless first licensed and entered in the register of
the stationers’ company, and also the printing of any book
without the consent of the owner.  This act recognized
the existence of certain patents with respect to printing
and the right of the crown to grant them, although, like all
the preceding enactments, it was aimed chiefly and directly
at the press.  The sole property of the owner was
acknowledged in express terms as a common-law right and
remedies were granted for the enforcement of that right.
The cases of disputed property which arose after the
passing of that act arose from the conflict whether the
property belonged to the author, from his invention and
labour, or to the king, from the subject-matter.  The
Licensing Act of 1662 was continued and revived from time to
time,  finally expiring in 1694. After a short hiatus
the first statutory protection of copyright was enacted in
1709.  It was only the final expiration of the
licensing acts which, as Lord Erskine observed, 
stripped the crown of every prerogative over printing,
except that which belonged to it as chief magistrate under
the title of prerogative copies.
In Millar v.
Taylor  Willes J., stated it as his opinion that
copyright existed, without any positive statute, prior to
the year 1640. It is certain that, down to that time,
copies were protected and secured from piracy for
and 14 Car. 2, c. 39.
Cf. The Stationers v. The Patentees about the Printing of
Rolle’s Abridgment, (1666) Cart. 89, at p. 91.
House of Commons Journal, p. 425; Drone on
Copyright (Boston, 1879), at p. 57.
G. Fox, Canadian Law of Copyright (Toronto, 1944), at
p. 16; Copinger on Copyright (7 ed., London, 1936),
at p. 7; W. S. Holdsworth, 6 History of English Law
(London, 1922-6), at p. 377.
Jac. 2, c. 17; 4
Win. and Mary, c. 24; cf. Millar v. Taylor, (1769) 4
Burr. 2303, at 2317.
Copyright Act, 8 Anne, c. 19.
See supra, note 1.
(1769) 4 Burr. 2303, at p. 2313.
the reason that
no licence could be obtained “to print another man’s copy,”
and he who printed without licence was liable to severe
penalties. The decree of the star chamber in 1637 expressly
supposed copyright to exist otherwise than by patent, order,
or entry in the register of the stationers’ company, which
could only be by common law. The ordinances of the long
parliament in 1643 and 1649 show that both houses took it
for granted that copyright existed at common law. This view
is confirmed by the Licensing Act of 1662 and its
successors, and the case of Millar v. Taylor  is
authority for the statement that at common law an author of
any book or literary composition had the sole right of first
printing and publishing the same for sale, and might bring
an action against any person who printed, published, and
sold the same without his consent.
Act of 1709 gave authors of books then printed the sole
right of printing them for a term of twenty-one years from
April 10, 1710 and of books not then printed, the sole right
of printing them for a term of fourteen years, subject to
renewal for a like term. The titles of all books had to be
registered with the stationers’ company.
In the case of
Donaldson v. Becket  over-ruling Millar v.
Taylor  on this point, the house of lords held that
the effect of this statute was to extinguish common-law
copyright of private citizens in published books, though
leaving the common-law copyright in unpublished works
unaffected. The statute therefore had the result of
curtailing copyright rather than giving greater protection.
 Common-law copyright in published works was thus
extinguished by the statute of Anne, but remained operative
in Canada, until the commencement of the 1921 act, so far as
unpublished works were concerned. 
The statute of
1709 was replaced by the Literary Copyright Act, 1842, 
which remained the governing statute as to literary
copyright until it was repealed by the Copyright Act, 1911.
(1769) 4 Burr. 2303.
1774 ) 4 Burr. 2408.
1769 ) 4 Burr. 2395.
v. Hood, (1897) 7 Term Rep. 620; lefferys v. Boosey,
(1854) 4 H.L.C. 815.
v. Valley Printing Co.,  2 Ch. 441; Prince
Albert v. Strange, (1849) 1 Mac. & G. 25; Caird v.
Sime, (1887) 12 A.C. 326; Exchange Telegraph Co. v.
Gregory,  1 Q.B. 147; Exchange Telegraph Co. v.
Central News Agency,  2 Ch. 48; Philip v.
Pennell,  2 Ch. 577.
and 6 Vic., c. 45.
35.Imp. 1 and 2 Geo. V, c. 46.
to a consideration of copyright legislation in Canada, 
the first Canadian enactment, passed under the authority
conferred on the parliament of Canada by the British North
America Act, 1867  was the Copyright Act of 1868. 
This statute, subject to amendments, appeared in the
revision of 1906 as chapter 70 and formed the basis of the
copyright law of Canada prior to the coming into effect of
the Copyright Act of 1921. Under the terms of this statute
it was necessary that a literary work be printed and
published or reprinted and republished in Canada and that
copies of the work be deposited at the copyright office,
THE UNIVERSITY OF TORONTO LAW
notwithstanding the strict provisions of the Canadian
statute and the fact that the Canadian parliament had
exercised its power, as set forth in the British North
America Act, 1867, to pass such a statute relating to
copyright, it was held by the judicial committee, in
Routledge v. Low  that the Imperial Copyright Act of
1842 extended the protection of British copyright to all the
British dominions, even to a colony having its own copyright
act. That view was adopted by the Ontario court of appeal
in Smiles v. Belford  and by the supreme court of
Canada in Black v. Imperial Book Co.  The
important point in this connexion is that, although the
imperial act of 1842 provided for registration at
stationers’ hall, this was only a condition precedent to
suit, and that copyright in any work first published within
British territory was still a good and valid right even
though not so registered. 
The scheme of
the Canadian Copyright Act of 1921  may, in general, be
said to consist of three separate principles. By the first
of these it defined copyright and specified in what works
copyright might subsist.  By the second it repealed all
legislation of the parliament of the United Kingdom so far
as operative in Canada  and abolished all copyright
apart from its own provisions.  By the third it
provided for a transition of all copyrights in existing
works to the rights provided under the new
Disregarding the act of Lower Canada of 1832, 2 Will. IV, c.
53, and the act of the province of Canada of 1841, 4 and 5
Vic., c. 61.
91 (23 ) .
Vic., c. 54.
(1868) L.R. 3 H.L. 100.
(1877) 1 O.A.R. at p. 447.
1904 ) 8 O.L.R. 9; 35 S.C.R. 488.
Morang and Co. Ltd. v. Publishers’ Syndicate Ltd.,
(1900) 2 Can. Com. R. 232; 32 O.R. 393; The International
Copyright Act, 1886, 49 and 50 Vic., c. 33, s. 8.
and 12 Geo. V, c. 24; R.S.C. 1927, c. 32.
Ss. 3 and 4.
Ss. 45 and 42(5).
to such works instead of whatever copyright they possessed
prior to January 1, 1924, the substituted right of copyright
provided by the new statute while preserving rights existing
by virtue of imperial legislation. 
Copyright by Statute
crown publications  is provided for by section 11 of the
Copyright Act, 1921 in these terms: “Without prejudice to
any rights or privileges of the Crown, where any work is, or
has been, prepared or published by or under the direction or
control of His Majesty or any government department, the
copyright in the work shall, subject to any agreement with
the author, belong to His Majesty, and in such case shall
continue for a period of fifty years from the date of the
first ‘publication of the work.”
therefore, a work is prepared under the direction or control
of the crown or a government department, the copyright will
immediately vest in the crown and will there remain until
publication, whenever that may occur, and for fifty years
after publication. Where the work is independently prepared
but is later published by or under the control of the crown
or a government department, the copyright will remain in the
author until publication when it will automatically pass to
the crown, and there remain for the ensuing period of fifty
years. In the case of a work prepared by or under the
control of the crown or a government department the vesting
of the copyright in the crown occurs quite apart from the
existence of a contract of service such as is required in
the ordinary case of employment under section 12(b).
If it were not
for the opening phrase of section 11 crown copyright might
be limited in scope to those works prepared or published by
or under the direction or control of the crown or a
government department. But the crown, in Great Britain at
any rate and probably in Canada, claims a much wider right
than is expressed in section 11.  It is, therefore,
are here referring only to copyright of the crown in its
corporate capacity. In its private capacity the reigning
sovereign has the same rights of authorship and ownership of
copyright as the subject (Prince Albert v. Strange,
(1849) 1 H. & T. 1; 2 De G. & Sm. 652). Nor must the crown,
in this connexion, be confused with crown companies, or what
are sometimes called “emanations from the crown,” which
operate under licence from his majesty. These are entitled
to own and hold copyright in the same manner as other
corporations in the works prepared under their direction.
Such works are not government publications and the crown
does not acquire copyright therein (British Broadcasting
Co. v. Wireless League Gazette Publishing Co.,  1
Imp. s. 19.
ant to analyse
the general scheme of the Copyright Act, as noted above. By
virtue of section 45 no person shall be entitled to
copyright in any work otherwise than under and in accordance
with the provisions of the act, or of any other statutory
enactment for the time being in force. With respect to
copyright in works made before January 1, 1924, copyright
shall not, subject to the provisions of the act, subsist in
such works otherwise than under and in accordance with
section 42. This is the transition section which provides
that where copyright in any work subsisted immediately prior
to January 1, 1924, the owner thereof shall be entitled to
the substituted right provided in the first schedule to the
act. So far as this discussion concerns literary works, the
substituted right granted by the act of 1921 is copyright as
defined by that act. 
All this would
seem to indicate that, in order to have copyright under the
1921 act in existing publications of a crown or government
character, the crown must have had copyright in such
publications immediately prior to January 1, 1924, and that,
under the transition section, it obtained the substituted
right provided by the new act. Certainly, the crown will
not be in any worse position than any other copyright owner
and whatever such rights it had prior to the effective date
of the new act will, at the very least, be changed into the
substituted rights of that act. But has the crown any wider
rights than appear from the provisions of these sections we
have discussed? It is suggested that the crown has such
wider rights and that its copyright in a number of works at
least, and probably in all under its ownership, is not
dependent upon the wording of the statute. This question is
not merely academic. If the crown’s rights depend entirely
on the statute, then, in order to obtain the substituted
right in old works provided by the transition section, it
must show that copyright existed in such works immediately
prior to January 1, 1924. In order to obtain copyright in
new works it must show that their production was according
to the terms and under the conditions laid down in section
But there are
two important considerations. Section 45 which denies
copyright in any work other than those under and in
accordance with the provisions of the act does not name the
crown, and therefore, as its effect is to diminish rights
in, certain circumstances, the crown is not bound by its
terms. While at common law the crown may be bound by a
statute by necessary implication or intendment, under
section 16 of the Interpretation Act  the crown can be
bound by statute only if the statute expressly
Fox, Canadian Law of Copyright, at pp. 220 ff.
R.S.C. 1927, c. 1, s. 16: “No provision or enactment in any
Act shall effect, in any manner whatsoever, the rights of
His Majesty, his heirs or successors, unless it is expressly
stated therein that His Majesty shall be bound thereby.”
states that the
crown shall be bound.  Secondly, section 11 commences
with the words : “Without prejudice to any rights or
privileges of the Crown.” Therefore, whatever rights the
crown may have had by way of copyright at the effective date
of the act of 1921 are in no way affected by the provisions
of that section nor are they affected, it is submitted, by
any other of the provisions of the act, including the
transition section.  A close reading of section 11
would seem to show that, in order that the crown may have
copyright in any work it must be, or must have been at some
time in the past, prepared or published under the direction
or control of the crown or a government department. Such an
interpretation would unduly limit the crown in its claim to
copyright in a number of works and would disregard the
opening phrase the effect of which is to preserve the
crown’s claims in full. The right of the crown to copyright
in documents prepared for or published by it or its servants
is a right independent of the right provided for in section
11 of the act, and exists by reason of the rights and
privileges of the crown which are not to be prejudiced by
section 11 of the 1921 act.
Copyright by Prerogative
The right of
the crown to copyright, at least in a considerable number
and variety of works, depends not upon statute but upon
prerogative. We have already discussed shortly the history
of the law of copyright and pointed out that in early times
the crown claimed a prerogative right of control over the
exercise of printing and the licensing of printing by the
court of star chamber. But constitutional changes have
somewhat curtailed the prerogative and today it is accepted
that the crown has no prerogative over printing generally,
the crown being unable to grant an exclusive licence to
print any book, except upon the basis of an interest in the
particular work based either upon prerogative or property.
The question of
copyright by crown prerogative must not be confused with the
prerogative control of printing. Solicitor-General Yorke
observed in the course of his argument in Baskett v. The
University of Cambridge  that even Henry VIII,
however arbitrary, never claimed a prerogative over the
press, nor did the crown ever exercise the art of printing
solely by its own servants or patentees either in the time
of Henry VIII or at any time since; “not even in the
memorable era of 43 Eliz. when such a catalogue
In re Silver Brothers: Attorney-General for Quebec v.
Attorney-General for Canada,  A.C. 514.
Millar v. Taylor, (1769) 4 Burr. 2303, at p. 2401 (per
Lord Mansfield). 56. (1758) 1 Wm. Bl. 105, at p. 114.
was laid before the House of Commons, that one of the
members said they should soon hear of a patent for the sole
making of bread.” The crown, it is therefore to be
emphasized, did not claim the prerogative of all printing:
merely the prerogative of controlling printing, together
with some special copyright. But while in the time of Lord
Mansfield it began to be questioned whether copyright by
prerogative rested upon executive power or upon a
proprietary right residing in the crown, the claim to the
exclusive right of printing and publishing certain works was
not at any time seriously disputed. The case of Millar
v. Taylor  laid down the proposition that the king
is the owner of the copies of all books or writing which he
had the sole right originally to publish. It, therefore,
becomes necessary to examine the nature of those works which
the crown “had the sole right originally to publish.”
(1) Works of
The claim of the crown to the right to control printing has
been said to be based upon its position as caput
ecclesiae. As Coke pointed out, all heretic books that
have been burnt are testimonies of the king’s prerogative.
 But it is questionable whether the royal control of
printing was in the beginning based upon prerogative. The
earliest instance of a prohibition of the printing of any
book was in 1526  and was plainly founded on the statute
2 Hen. IV, c. 15 against heresy and not on any royal
prerogative. In 1550 by statute 3 and 4 Edw. VI, c. 10,
parliament interposed with respect to superstitious books
and importation was forbidden by 25 Hen. VIII, c. 15. In
1555, there was a proclamation against importing heretical
books, as all writings of the reformers were styled, and
this likewise was founded on the statute 2 Hen. IV against
heresy. In 1559, a proclamation was issued against
heretical books, containing also injunctions with respect to
the morality of pamphlets, etc., and other provisions, which
required all printers or authors to be licensed by the king,
archbishop of Canterbury, or chancellors of the
universities. As soon as the company of stationers was
formed in 1556, the star chamber interposed in support of
religious matters and in 1566 several ordinances were issued
by Cecil (afterwards Lord Burleigh) and the commissioners
for religious matters. The star chamber intervened in a
number of cases to restrain printing of religious and other
books in infringement of letters patent granting the sole
right of printing. Following upon the decree of the star
chamber of 1623, the court of high commission took over the
(1769) 4 Burr 2303, at p. 2329.
Inst. c. 97.
Cf. Foxe’s Book of Martyrs, p. 290.
infringements of the regulations in respect to printing.
 By this time the theory of crown prerogative, at least
so far as ownership of certain copyright is concerned, had
restoration, there were no questions in the courts of common
law concerning crown copyright.  The first reported
case in the common-law courts pointed out that “the King’s
prerogative over printing is necessary as to religion,
conservation of the publique peace, and necessary to
preserve good understanding between King and people.” 
Counsel further stated to the court that he had a note of
fifty-one patents granted for the printing of divinity
books, such as common-prayer books and testaments, none of
which had been held to be monopolies or grievances.
and publication of the authorized version of the Bible, the
New Testament, and the Book of Common Prayer have, in all
the cases on the point, been held to be a matter of crown
prerogative right.  While some of these decisions
appear to base the rule on the fact that King James had the
translation of the bible made at his own expense,  the
Thus on April 9, 1632, that court imprisoned Richard
Blagrave for having in his possession a number of “Bibles of
the Geneva print with the notes.” On May 8, 1632, Barker
the printer was brought before the court for false printing
of the bible (in the edition of 1631, Exodus 20, “Thou shalt
commit adultery”; Deuteronomy, 5, “The Lord hath shewed us
his glory, and his great asse”), and for printing it on bad
paper. (Reports of Cases in the Courts of Star Chamber
and High Commission, at pp. 296, 304). On June 21,
1632, Henry Goskin was imprisoned for printing a ballad
“wherein all the histories of the bible were scurrilously
abused” (ibid., at p. 314).
Millar v. Taylor, (1769) 4 Burr. 2303, at p. 2401 (per
The Stationers v. The Patentees about the Printing of
Rolle’s Abridgment, (1666) Car. 89, at p. 90.
The Stationers v. The Patentees about the Printing of
Rolle’s Abridgment, (1666) Cart. 89, at p. 90; The
Company of Stationers v. Seymour, (1677) 1 Mod. 256;
The Company of Stationers v. Lee et al., (1683) 2 Show.
258; 2 Ch. Cas. 66, 76, 93; Hills v. University of Oxford,
(1684) 1 Vern. 275; The Stationers’ Company v. Wright,
cited (1769) 4 Burr. 2303, at p. 2382; Baskett v. The
University of Cambridge, (1758) 1 Wm. Bl. 105, at p.
114; The Company of Stationers v. Partridge, cited 4
Burr. at p. 2403; Stationers’ Company v. Carnan,
(1775) 2 Wm. Bl. 1004, at p. 1007; Eyre and Strahan v.
Carnan, (1781) Exchequer, 6 Bac. Abr., 7 ed., pp.
509-12; cited 6 Ves. Jun. at p. 697; Millar v. Taylor,
(1769) 4 Burr. 2303, at pp. 2381-4; Grierson v. Jackson,
(1794) Ridg. L. & S. 304; Universities of Cambridge and
Oxford v. Richardson, (1802) 6 Ves. Jun. 690; Manners
et al. v. Blair, (1825) 3 Bligh. N.S. 391; In re “The
Red Letter New Testament (Authorized Version),” (1900)
17 T.L.R. 1.
Cf. Baskett v. The University of Cambridge, (1758) 1
Wm. Bl. 105, at 114; Hills v. University of Oxford,
(1684) 1 Vern. 275; Millar v. Taylor, (1769) 4 Burr.
2303, at pp. 2403, 2405 (per Lord Mansfield). Here,
Lord Mansfield, in referring to the
Baskett v. The University of Cambridge, (1758) 1 Wm. Bl.
105, said: “We had no idea of any prerogative in the Crown
over the press; or of any power to restrain it by exclusive
privileges, or any power to control the subject-matter on
which a man might write, or the manner in which he might
treat it. We rested upon property from the King’s right of
on page 110 of original
opinion seems to have been that the ground of the
prerogative was laid down not as property, but duty; to take
care that the works in question were correct.  As
Skinner L. C. B. observed in the Eyre and Strahan Case:
“It has ever been a trust reposed in the king, as executive
magistrate, and the supreme head of the church, to
promulgate to the people all those civil and religious
ordinances which were to be the rule of their civil and
religious obedience.”  Although all the judges in the
famous case of Millar v. Taylor  unanimously
recognized that the crown had the prerogative right of sole
printing of the works under discussion, they differed
respecting the origin of it. But these doubts have been set
at rest by the judgement of Lord Eldon L. C. in
Universities of Cambridge and Oxford v. Richardson 
where he observed that “the public interest may be looked
to, upon a subject, the communication of which to the public
in an authentic shape, if a matter of right, is also a
matter of duty in the Crown; which are commensurate. The
principle of law is, that this duty and this right are
better executed and protected by a publication of books of
this species in England by persons confided in by Letters
Patent under the Great Seal of England.” 
crown prerogative in the specified works of religion which
we have been considering is a right which is apparently
regarded by the law officers as a subsisting and valuable
right and one which is to be enforced. Thus as recently as
the year 1900 the registration of copyright in a version of
the New Testament was ordered expunged at the suit of the
queen’s printer in England,  the locus standi of
the applicants being their possession of letters patent
giving them the sole right of printing and publishing copies
of the New Testament.
It remained for
an Irish court to point the exact limitation of the
Eyre and Strahan v. Carnan, (1781) Exchequer, 6 Bac.
Abr., 7 ed., pp. 509-12; cited (1802) 6 Ves. Jun. at p. 697;
Stationers’ Company v. Carnan, (1775) 2 Wm. Bi. 1004
at p. 1007.
(1769) 4 Burr. 2303.
(1802) 6 Ves. Jun. 690, at p. 696.
See also Manners et al. v. Blair, (1825) 3 Bligh. N.S.
391, at p. 403 (per Lord Lyndhurst), discussed infra.
In re “The Red Letter New Testament (Authorized Version),”
in this regard. In Grierson v. Jackson  an
action was brought by the holder of letters patent granted 6
Geo. III for the sole power of printing and selling bibles.
In denying an injunction Lord Chancellor Clare said: “I can
conceive that the King, as head of the Church, may say, that
there shall be but one man who shall print bibles and books
of common prayer for the use of churches and other
particular purposes, and that none other shall be deemed
correct books for such purposes. But I cannot conceive that
the King has any prerogative to grant a monopoly as to
bibles for the instruction of mankind in revealed religion…
The patent could not mean to give an exclusive right in the
printing of bibles.”
It will thus be
seen that the extent of the crown’s prerogative is limited.
The right does not extend to prohibit printing the bible
per se. As Lord Mansfield observed in Millar v.
Taylor: “The copy of the Hebrew Bible, the Greek
Testament, or the Septuagint does not belong to the King: it
is common. But the English translation he bought: therefore
it has been concluded to be his property. If any man should
turn the Psalms, or the writings of Solomon, or Job, into
verse, the King could not stop the printing or sale of such
a work: it is the author’s work. The king has no power or
control over the subject-matter.” 
It is obvious
that the dictum in this case, as well as the limitations
expressed by Lord Mansfield have been completely overlooked
in the later cases such as Universities of Cambridge and
Oxford v. Richardson and Manners v. Blair, 
in both of which the prerogative right of the crown to
monopolize the printing of the bible was based upon the
character of the duty imposed upon the chief executive
officer of the government to superintend the publication of
those works upon which the established doctrines of our
religion are founded. Such a principle, although it has the
authority of the house of lords to reinforce it, is
justified neither by a perusal of the decisions nor by any
rule of reason or common sense. Whatever may have been
considered the function and prerogative of the crown in the
days of Queen Mary, when the avowed object of the royal
licensing and regulation of the press was to prevent the
spread of the reformed religion, the progress of
constitutional law and custom has shown that it is not now,
and has not been for some time past, the function of the
crown or of the executive part of the government to regulate
matters of religion and the conscience of the public. The
crown may have the duty imposed upon it to superintend the
publication of those works upon which the established
(1794) Ridg. L. & S., 304.
(1769) 4 Burr. at 2405.
our religion are founded but that duty, and the
corresponding prerogative based, upon it, do not go any
farther. They do not progress to the point of permitting
the crown to interfere in the printing of the bible or any
other work of religion, save only those particular examples
in which copyright can be shown. There are very forcible
objections against any prerogative monopoly in bibles and
other works of religion, generally.  For example, The
Codex Sinaiticus, lately acquired by the British
museum from the Soviet government, cannot be the subject of
prerogative copyright. The British museum may be entitled
to copyright in the Codex as an unpublished work in its
original form and to the right of permitting or refusing its
translation in accordance with Article 8 of the
international convention. If a translation of it is
permitted, the copyright in that translation resides in the
translator, who is free to publish it and cannot be
restrained by any patent granting the sole right of printing
bibles. To suggest that the crown prerogative goes any
farther than that is to mistake the extent to which it is
The law is not
favourably disposed towards monopolies  and, even in the
case of the crown, they are allowed to subsist only when
necessity requires it. Prerogative copyright exists only on
grounds of political and public convenience, and its
applicability must be restrained to the reasons for its
existence  It has been many centuries since the crown
or the common law claimed any right to restrain the printing
and publishing of any works contrary to the tenets of the
christian religion.  It would be passing strange to
suggest that the obligation and prerogative we have been
discussing had as its object and as its effect, a restraint
only upon the publication of the great works of the
christian religion while leaving the books of all other
“heathenish and pagan” religions completely unrestrained.
and Public Documents.
It has been observed that the power of promulgating laws and
providing for their due execution resides
Chitty, Prerogatives of the Crown, at p. 240.
Cf. Statute of Monopolies, (1623) 21 Jac. I, c. 3.
Chitty, Prerogatives of the Crown, at p. 239.
Cf. Hanson and Evans, 2 Burn’s Ecc. Law 207, at p.
218 (per Lord Mansfield); Bowman v. Secular
Society Ltd.,  A.C. 405, at p. 475 (per Lord
will be noted that works of religion do not appear among the
enumerated works in the treasury minutes of August 31, 1887
or June 28, 1912 (infra). The inference is not,
however, to be drawn from the omission that the crown
thereby proposes to allow its prerogative to fall into
desuetude. The action brought in 1900 to expunge a
registration of copyright in the New Testament would seem to
indicate that the crown and the crown printers do not
propose to abrogate their rights. See In re “The Red
Letter New Testament (Authorized Version),” at p. 1.
in the crown,
which is the sole executive power. Hence arose the
prerogative of printing acts of parliament, which succeeded
to the proclamations by the sheriff. 
exercised the sole right of printing acts of parliament
prior to the time of Henry VIII, for Bartlet styled himself
“Regius Impressor” to Henry VII and Henry VIII from 1503 to
1528. These grants of the office of printer were not,
however, of an exclusive nature, as may be gathered from
civil and literary history. But the copyright of the king
was still asserted, as well to books of religion as acts of
parliament, for various learned men of both universities
obtained grants of these, about the years 1531 and 1533.
exclusive privilege with respect to the printing of matters
of public import first arose for decision in the courts of
common law in The Stationers v. The Patentees about the
Printing of Rolle’s Abridgment.  From that time on,
the prerogative right of the crown to the exclusive printing
of acts of parliament, orders-in-council, state papers, and
other public documents appears never to have been
successfully contested.  Printing the laws has been
held to be a matter of state and one which concerned the
state.  By the latter part of the eighteenth century it
had become established as a principle that the sole right of
printing statutes resided in the crown by virtue of its
prerogative.  As
Cf. Coke, 3- Inst. 41; Baskett v. University of Cambridge,
(1758) 1 Wm. Bl. 105, at p. 110; Stationers’ Company v.
Carnan, (1775) 2 Wm. Bl. 1004, at p. 1006. Prior to the
introduction of printing it appears to have been the
practice of the king to send to the sheriff of every county
at the end of every session a transcript of all the acts
made at that session, and to cause them to be proclaimed at
his county court, and there kept, so that anyone might read
them and take copies. This practice continued until the
reign of Henry VII (1 Blackstone’s Commentaries, 18
ed., London, 1795, at p. 184).
(1666) Cart. 89.
v. Streater, (1672) 2 Ch. Cas. 67; Skin 234;.6 Bac.
Abr., 7 ed., p. 507; Company of Stationers v. Seymour,
(1677) 1 Mod. 257; Company of Stationers v. Lee,
(1683) 2 Ch. Cas. 76; Baskett v. The University of
Cambridge, (1758) 1 Wm. Bl. 105; 2 Burr. 661; Baskett
v. Cunningham et al., (1762) 1 Wm. Bl. 370; 2 Eden 137;
Millar v. Taylor, (1769) 4 Burr 2303, at p. 2329;
Stationers’ Company v. Carnan, (1775) 2 Wm. B 1. 1004,
at p. 1008; Eyre and Strahan v. Carnan, (1781) 6 Bac.
Abr., 7 ed., p. 509; Rex v. Bellman,  3 D.L.R. 548;
Manners et al. v. Blair, (1825) 3 Bligh N.S. 391; Attorney-General
of New South Wales v. Butterworth and Co. (Australia) Ltd.,
 N.S.W.R. 195.
Company of Stationers v. Lee, (1683) 2 Ch. Cas. 76 (per
Cf. Stationers’ Company v. Carnan, (1775) 2 Wm. B1.
1004, at p. 1008, where counsel admitted that “statutes are
proper subjects of exclusive patents.” Chitty,
Prerogatives of the Crown, at p. 239 states that it is
on grounds of political and public convenience that the
prerogative copyright exists, and its applicability must
[be restrained to
the reasons for its existence. As executive magistrate, the
crown has the right of promulgating to the people all acts
of state and government. This gives the king the exclusive
privilege of printing, at his own press, or that of his
grantees, all acts of parliament, proclamations, and
orders-of-council. See also 2 Blackstone’s Commentaries,
at p. 409.]
on page 114of original
Mansfield observed in Millar v. Taylor: “Acts of
Parliament are the works of the Legislature: and the
publication of them has always belonged to the King, as the
executive part, and as the head and sovereign.” 
THE UNIVERSITY OF TORONTO LAW
basis of the prerogative copyright in statutes and
proclamations was indicated by Skinner L. C. B. in Eyre
and Strahan v. Carman:
traces of the ancient mode of promulgating the ordinances of
the state yet remaining to us, suited to the gloominess of
the times when few who heard them could have read them; the
king’s officers transmitted authentic copies of them to the
sheriffs, who caused them to be publicly read in their
county court. When the demand for authentic copies began to
increase, and when the introduction of printing facilitated
the multiplication of copies, the people were supplied with
copies by the king’s command by his patentee. This seemed a
very obvious and reasonable extent of that duty which lay
upon the crown to furnish the people with the authentic text
of their ordinances. Our courts of justice seem to have so
considered it when they established it as a rule of
evidence, that acts of parliament printed by the king’s
printer should be deemed authentic, and read in evidence as
the power of the crown and its prerogative over the printing
of public documents and acts of parliament as well as of
works of religion seems never to have been seriously
questioned,  it has been rested by judges upon different
principles. Some have based it upon property, as, e.g., in
the case of the translation of the bible having been
actually paid for by James I. Others have referred to the
vesting of- the prerogative in the king with reference to
his character as head of the church. The better opinion
seems to be that it is referred to another consideration,
namely, to the character of the duty imposed upon the chief
executive officer of the government, to superintend the
publication of the acts of the legislature, and acts of
state of that description, and also of those works upon
which the established doctrines of our religion are founded
- that it is a duty imposed upon the first executive
(1769) 4 Burr. 2303, at 2404.
(1781) 6 Bac. Abr., 7 ed., pp. 509-12.
Manners, Miller and Buchan v. Blair, (1825) 3 Blight.
N.S. 391 (per Lyndhurst, L.C.).
it a corresponding prerogative. 
In Millar v.
Taylor, opinion was divided as to the basis upon which
crown copyright rests. Both Lord Mansfield and Willes J.
based it upon property. But Lord Mansfield nevertheless
adhered to the idea of prerogative based on executive power
when he stated that the right of publication of acts of
parliament belonged to the king as the executive part, and
as the head and sovereign. Willes J. stated that the right
to publish acts of parliament derived from the king’s
position as head of the state, while in the case of works
otherwise acquired, as, e.g., by purchase, the right is
independent of prerogative. Yates J. held unhesitatingly
for the prerogative right based on executive power “as head
of the church and of the political constitution.” There is,
therefore, no justification for stating that Millar v.
Taylor is authority for the proposition that, after its
date, crown copyright was based solely upon a proprietary
right and that prerogative no longer played any part. With
respect therefore, it must he said that Baxter C.J. in
Rex v. Bellman  misdirected himself when he said:
“By the time of Lord Mansfield the idea of prerogative had
pretty well disappeared and the King’s exclusive right was
put on the ground of property.” What Millar v. Taylor
decided, and the only basis upon which the decision can be
understood, is that crown copyright rests upon prerogative,
based in the case of some works on executive power, and in
other works upon proprietary right. The later cases,
particularly Manners et al. v. Blair  and
Attorney-General of New South Wales v. Butterworth and Co.
(Australia) Ltd.  accord completely with this view.
(3) Law Reports.
law is settled that copyright may be acquired by a reporter
or editor of those parts of a report of which he is the
author or compiler, such as head-notes, annotations,
additional citations, statements of fact, and abstracts of
the arguments of counsel.  In the case of judicial
decisions, however, the matter seems never to have come up
for decision either in Canada or Great Britain. In the
United States the
Donaldson v. Becket, (1774) 4 Burr. 2408 (per
Lord Camden); Eyre and Strahan v. Carnan, (1781)
Exchequer (per Baron L.C.B.); Universities of
Oxford and Cambridge v. Richardson, (1802) 6 Ves. 704;
Grierson v. Jackson, (1794) Ridg. L. & S. 304, at p.
306 (per Care L.C.) ; Manners, Miller and Buchan
v. Blair, (1825) 3 Bligh. N.S. 391 (per Lyndhurst
 3 D.L.R. 548, at p. 553.
1825) 3 Bligh. N.S. 391.
 N.S.W.R. 195.
Butterworth v. Robinson, (1801) 5 Vies. 709; Sweet v.
Shaw, (1839) 3 Jur. 217; Saunders v. Smith,
(1838) 3 My. & Cr. 711; Sweet v. Maugham, (1840) 11
Sim. 51; Hodges v. Welsh, (1840) 2 Ir. Eq. 266;
Sweet v. Benning, (1855) 16 C.B. 459.
of the courts are not the subject of copyright whether of
the judge preparing and delivering the opinion, the
reporter, or the state.  This is on the same principle
which, in the United States, provides that every person is
entitled to print and publish all statutes without
restraint, on the ground that no one can obtain the
exclusive right to publish the laws of a state.  In
Canada and Great Britain, on the contrary, judicial
decisions may be regarded as falling within the purview of
crown copyright on the principle stated in Stationers v.
Patentees about the Printing of Rolle’s Abridgment 
that the judges are paid by the crown and copyright in their
official pronouncements resides in the crown. It is obvious
that judicial decisions are a proper subject of copyright.
It is equally obvious that copyright in them should not
reside in the judges who prepare them. The property
inherent in them is governed by the same principles that
apply to all literary compositions. A judge is obviously in
the employment of the state under a contract of service
(even though dignified by royal appointment) and the
decisions are prepared and made in the course of his
employment. On the express provisions of section 12 of the
Copyright Act the copyright resides in the employer, namely
the government of which the crown is the chief executive.
Whether the title of the crown to this form of copyright
resides in prerogative or property is immaterial - the title
is clearly in the crown. Whether it would ever attempt to
enforce its right is another question. It is significant
that judicial decisions do not appear among the enumerated
subjects of crown copyright in the treasury minute of August
31, 1887  but it is not claimed that list is by any
THE UNIVERSITY OF TORONTO LAW
As observed by Baxter C. J. in Rex v. Bellman “there
remains in the Crown the sole right of printing a somewhat
miscellaneous collection of works, no catalogue of which
appears to be exhaustive.”  In Nicol v. Stockdale et
al.,  Thurlow L. C. observed that where the crown
directs a voyage of discovery to be made and a narrative of
the voyage to be prepared, that narrative is the property of
Wheaton v. Peters, (1834) 8 Pet. 591; Banks v.
Manchester, (1888) 128 U.S. 244.
Howell v. Miller, (1898) 91 Fed. 129; Davidson v.
Wheelock, (1866) 27 Fed. 61.
(1666) Cart. 89; the house of lords also approved the
principle in Roper v. Streater, (1672) cited 4 Burr.
2316; Skin 234; 1 Mod. 257; Bac. Abr., tit. Prerogative.
 3 D.L.R. 548.
(1785) 3 Swans. 687.
If the crown
gives all the benefit of the works to an individual, that
person “is entitled to every benefit which can be derived
under the statute of Queen Anne.” Thurlow L.C. was
obviously quite satisfied as to the crown’s copyright in the
work, but as to the extent of that right, or the basis of
it, he was far from clear. If the crown was entitled to
copyright by prerogative the right would be perpetual. It
will be noted that Thurlow L.C. declared that, in order to
acquire the copyright given by the Copyright Act of 1709 it
must be clearly vested by the crown in that person to whom
the benefit is given. Such a principle appears in no other
case and it would seem that, on this occasion at least, he
was speaking per incuriam.
maps  and admiralty and hydrographic charts are the
subject of copyright on the part of the crown, but the neat
question arises whether they are subject to perpetual
copyright arising by prerogative, whether in the nature of
an executive power or a proprietary right, or to the limited
copyright provided by section 11. In Rex v. Bellmann
 Baxter C. J., held that such charts were the subject of
crown copyright, but upon what basis and to what extent is
not clear from his judgement. He discusses at length those
works in which perpetual copyright exists by virtue of the
prerogative as well as those in which the rights arise under
the Copyright Act. But he did not say into which category
the hydro-graphic chart under consideration fell. No doubt
this is explainable by virtue of the fact that the question
at issue was one of admissibility of evidence and that crown
copyright arose only as an incident of the resolving of that
In former times
the opinion was held that almanacs fell within the domain of
crown copyright upon the basis that the regulation of time
is in all countries a matter of state, and almanacs are
nothing else but an application to a particular year of the
general calendar prefixed to the prayer book and as such are
parts of an act of parliament. The matter came up in The
Company of Stationers v. Partridge.  No decision
was given in that case however.  It appears in
Millar v. Taylor , that the crown had been in the
constant course of granting the right of printing almanacs.
James II granted that right by charter to the stationers’
company and the two universities, and for a century they
kept up that monopoly by the effect of prosecutions. In
The Company of Stationers v.
R. v. Mutch, (1914) Macg. Cop. Cas. 159.
(1713) 10 Mod. 105.
Cf. Millar v. Taylor, (1769) 4 Burr. 2402 (per
Lord Mansfield). 102(1769) 4 Burr. 2303, at p. 2402 (per
a patent for the sole printing of almanacs was held valid
on the ground that the almanac which is put in the rubrick
of the prayer book proceeded from a public constitution; it
was established by the church and was under the government
of the archbishop of Canterbury; so that almanacs might be
accounted prerogative copies. At length Carnan, “an
obstinate man,” insisted upon printing them and an
injunction was granted against him. When the matter came up
for hearing, however, in The Stationers’ Company v.
Carnan,  on a case stated out of chancery for the
opinion of the court of common pleas, it was certified “that
the Crown had not a prerogative or power to make such a
grant to the plaintiffs, exclusive of any other or others.”
As Erskine L.C. observed in Gurney v. Longman this
case settled the principle that “almanacs were not
prerogative copies.”  Following that decision the
house of commons threw out a bill, brought in for the
purpose of vesting the sole right of printing almanacs in
the stationers’ company. 
(5) Duration of
Crown Copyright by Prerogative.
An examination of the common-law decisions will show that
copyright by prerogative is in quite a different position
from that enjoyed by private authors. Thus, in Millar v.
Taylor Lord Mansfield stated that “it is and has all
along been admitted that, by the common law, the King’s copy
continues after publication.”  And in the same case,
Yates J. observed :
And as printing
has, since the invention of that art, been the general mode
of conveying these publications, the King has always
appointed his printer. This is a right which is inseparably
annexed to the King’s office: but no such right is annexed
to the situation of any private author. The King does not
derive this right from labour, or composition, or any one
circumstance attending the case of authors… From these
authorities, therefore, I say, it seems to me that the
King’s property in these particular compositions called
prerogative copies stands upon different principles than
that of an author; and therefore will not apply in case of
an author. 
It is important
to note that Yates J. was here discussing one of the
questions propounded to the court which was, whether an
author had at common law perpetual copyright in his work,
and whether the Copyright Act of 1709 took away that right
on publication. Yates J., in a dissenting judgment, held
that perpetual copyright did not exist at common law in
(1677) 1 Mod. 257.
(1775) 2 Wm. Bl. 1004, at p. 1009.
(1807) 13 Ves. Jun. 493, at p. 508.
Gurney v. Longman, (1807) 13 Ves. Jun. 493, at p. 508
(per Erskine L.C.). 107. (1769) 4 Burr. 2303, at p.
At p. 2383.
the case of
private authors and that copyright under the statute existed
only for the limited time prescribed by the statute upon
publication. The house of lords in Donaldson v. Becket
 which over-ruled Millar v. Taylor, held that
the author of any literary composition and his assigns had,
by the common law, the sole right of printing and publishing
the same in perpetuity, but that this right was taken away
by the statute of 8 Anne, being merged, upon publication, in
the statutory right conferred by the Copyright Act. It,
therefore, must be noted that Yates J. excepted crown
copyright from the principles he enunciated with regard to
copyright of authors, and, although he does not so state in
his judgement, he must be taken to have meant by his
differentiation, that, so far as crown copyright was
concerned, he concurred with the opinion of the rest of the
court that the perpetual right at common law was not merged
in and extinguished by, the statutory right.
in Jefferys v. Boosey,  Caird v. Sime,
 and Macmillan and Co. v. Dent  have
effectively disposed of the suggestion that common-law
copyright of private authors continued after publication.
But as Yates J. in his dissenting judgement in Millar v.
Taylor  pointed out, there is no analogy between
copyright of private authors and copyright residing in the
crown. These later cases do not affect the authority of the
cases establishing and recognizing the royal prerogative
right of perpetual copyright, nor do they affect the view
expressed by the majority of the judges in Millar v.
Taylor that prerogative, whatever its basis or origin,
is the foundation of this type of property. It will
therefore be seen that the crown has the sole perpetual
right, founded upon prerogative, based either upon property
or executive power, to publish a number of works of a
religious, legal, and state nature, not only by its own
agencies, but by others upon grant of that privilege, and to
prevent their unauthorized publication. This right is not,
as in the case of private authors, lost upon publication but
continues in perpetuity. 
Copyright in Canada
So far we have
been considering the existence of copyright by virtue of the
crown prerogative in England. The question naturally arises
109. (1774) 4 Burr. 2408.
110.(1854) 4 H.L.C. 815.
(1887) 12 A.C. 326.
 1 Ch. 107.
(1769) 4 Burr. 2303, at p. 2383.
Millar v. Taylor, (1769) 4 Burr. 2401; 5 Bac. Abr.
598; Chitty, Prerogatives of the Crown, at p. 241.
a prerogative right exists in Canada. A number of decisions
enables us to answer that question in the affirmative. Of
these the first is Manners et al. v. Blair where Lord
Lyndhurst L.C., speaking in the house of lords, determined
that the prerogative right existed in Scotland to the same
extent as in England. He said :
THE UNIVERSITY OF TORONTO LAW
In Scotland, as
well as England, patents of this description have been
granted without dispute or contest, for more than two
hundred years… In the course of this argument it was
assumed, as the basis of a part of an argument, that the
prerogative in England depended upon the King’s character as
supreme head of the Church; and it was argued, that the
principle did not apply to Scotland, for that although the
King was the supreme head of the Church in England, he was
not the supreme head of the Church in Scotland; and
therefore the prerogative might well exist in this part of
the island, and yet not exist in Scotland. But, I have
already stated that I do not refer the prerogative to the
circumstances of the King being, in a spiritual or
ecclesiastical sense, the supreme head of the Church in
England, but to the kingly character - to his being at the
head of the Church and State, and it being his duty to act
as guardian and protector of both, - a character which he
has equally in Scotland and England. It is perfectly clear,
that it is the duty of the King to act this part, as the
guardian of the Church in Scotland… I think, therefore,
that this right and prerogative depends upon the King’s
character as guardian of the Church and guardian of the
State, to take care that works of this description are
published in a correct and authentic form; and that those
arguments upon which the authority rests in this country
apply also in Scotland. 
Upon the same
reasoning, the king’s character as king of Canada, accords
to him the same prerogative right and the same duty to act
as guardian of the church and the state. The extent of the
prerogative right in Canada was effectively settled by the
judicial committee in Liquidators of the Maritime Bank of
Canada v. The Receiver General of New Brunswick, where
Lord Watson said: “The prerogative of the Queen, when it has
not been expressly limited by local law or statute, is as
extensive in Her Majesty’s colonial possessions as in Great
There is also
direct authority on the point. In Rex v. Bellman
 Baxter C.J., of the New Brunswick supreme court,
considered the question of crown copyright in an exhaustive
judgement. The case involved a prosecution against the
master of a ship for carrying liquor in violation of the
Customs Act and, on appeal from an acquittal, it was held
that admiralty charts prepared under governmental authority
are admissible in evidence
(1825) 3 Bligh. N.S. 391, at p. 403.
[1892j A.C. 437, at p. 441.
 3 D.L.R. 548.
documents as an exception to the hearsay rule. In the view
of Chief Justice Baxter “constitutional changes have
shattered the idea of prerogative” and “by the time of Lord
Mansfield the idea of prerogative had pretty well
disappeared and the King’s exclusive right was put on the
ground of property.” Nevertheless, according to Baxter C.J.
“there remains in the Crown the sole right of printing a
somewhat miscellaneous collection of works, no catalogue of
which appears to be exhaustive.” While discussing some of
the earlier decisions and the terms of section 18 of the
imperial and section 11 of the Canadian Copyright Acts, the
learned chief justice does not attempt to enumerate any of
the catalogue of works in which the crown may have
copyright. The point at issue being, as his lordship is
careful to point out, one of admissibility of evidence
rather than of subsistence of copyright, the judgement
states the applicable principle  when the learned chief
justice says that “the Crown has the same capacity of
acquiring copyright as a private individual but as this is
not expressly mentioned in the Imperial Copyright Act I
think this capacity must be referred to the common law right
which I have previously tried to indicate.”
The point at
issue of how far copyright by virtue of crown prerogative
will subsist in a Dominion or colony and whether it subsists
on the same principles and to the same extent as in Great
Britain fell to be decided in an Australian case in the same
year as the BeMilan Case in Canada.  The
argument of counsel and the judgement proceed to discuss the
previous decisions in a full and exhaustive manner and Long
Innes C.J. in Eq. sums up the discussion by saying: “A
consideration of the authorities already mentioned
establishes, in my view, the existence of the prerogative
right under consideration..” 
elaborate review of the authorities on the constitutional
position  Long Innes C.J. in Eq. held that these
established that the prerogative right in question, if it is
to be regarded either as a purely executive power relating
merely to the internal self-government of the state or
commonwealth, or as in its nature mainly executive and so
At p. 557.
Attorney-General for New South Wales v. Butterworth
and-Co. (Australia) Ltd.,  N.S.W.R. 195.
At p. 236.
Musgrave v. Pulido, (1879) 5 A.C. 102; Fabrigas v.
Mostyn, (1773) 1 Cowp. 161; Hill v. Bigge, (1841)
3 Moo. P.C. 465; Cameron v. Kyte, (1835) 3 Knapp.
332; Phillips v. Eyre, (1870) L.R. 4 Q.B. 225;
Commercial Cable Co. v. Government of Newfoundland,
 2 A.C. 610; Toy v. Musgrave,  A.C. 272;
Bonanza Creek Gold Mining Co. Ltd. v. The King,  1
A.C. 566; Attorney-General for Ontario v.
Attorney-General for Canada,  A.C. 571.
vested in regard to the statutes of New South Wales either
in the crown in right of the state or in the crown in right
of the commonwealth. Furthermore, said Long Innes C.J., “I
think also that they further establish that certain
prerogatives, not of the nature of executive powers, but in
the nature of proprietary rights, which arose by virtue of
the King being the supreme executive authority of a
particular territorial unit possessed of self-government are
also held by the Crown in right of that particular
territorial unit or political entity.”
THE UNIVERSITY OF TORONTO LAW
It is important
to emphasize this last statement for two reasons. The first
is that the learned chief justice points out that
prerogatives in the nature of proprietary rights still exist
as well as those based upon executive power. At a later
stage of his judgement,  Long Innes C.J. holds in terms
that the prerogative right to grant patents conferring on
the patentees the exclusive right of printing acts of
parliament is not such a right on the part of the king to do
certain things, at certain times and places, apart from
parliamentary authority, as is embraced within the issue of
letters patent for inventions,  and does not fall into
the same category. In the case of patents of invention the
right is not based on any proprietary right in the king in
respect to inventions; while in the case of copyright the
right is based on property. The decision in Millar v.
Taylor  that the crown had a property in the nature
of copyright, has not been affected by the later decisions.
The second reason for emphasis lies in the determination of
the question that prerogatives in the nature of proprietary
rights are held by the crown in right of each particular
territorial unit possessed of self-government.  On the
specific point, therefore, Long Innes C.J. held that the
prerogative power to print state statutes in Australia,
whether it was in the nature of an executive power or a
proprietary right, was
At pp. 245ff.
1n Great Britain and Australia the grant of patents of
invention flows from crown prerogative; in Canada the
prerogative basis of grant has been merged in the statute.
(1769) 4 Burr. 2303.
This point was more generally settled in .The Liquidators
of the Maritime Bank of Canada v. The Receiver General of
New Brunswick,  A.C. 437, where the judicial
committee held that the crown in right of the province of
New Brunswick was entitled to the crown prerogative in
respect of priority in the payment of debts as against other
simple contract creditors, the lieutenant-governor of the
province being “as much the representative of Her Majesty
for all purposes of provincial government as the Governor
General is for all purposes of Dominion Government.” See
also In re Oriental Bank Corporation, (1885) 28 Ch.
D. 643; Commissioners for Taxation for the State of New
South Wales v. Palmer,  A.C. 179; In re
Commonwealth Agricultural Service Engineering Ltd.,
 S.A.S.R. 342.
vested in the
crown in right of the state immediately prior to the
confederation of the Commonwealth of Australia. Upon the
formation of the Commonwealth this prerogative in the nature
of a proprietary right was not taken away from the state.
The grant of legislative power to a Dominion in respect of
the property of a province does not necessarily and of
itself deprive the province of its proprietary rights,
although the exercise of the power may affect them. 
Such legislative power can not be so exercised in Canada as
to deprive a province of proprietary rights which it
It is, of
course, immaterial whether the proprietary right of crown
copyright be asserted to reside in the crown in the right of
the Dominion or of the provinces. The crown is one and
indivisible and ubiquitous throughout the British dominions.
 The principle has been stated in an Australian case
by Isaacs J., in the following words: “Where responsible
government exists, it is an axiom of the public life of the
British Commonwealth of Nations that the King’s agents to
regulate the exercise of his royal authority with respect to
each Dominion are those chosen by the people of that
Dominion. In the development of the Federal system in the
Dominions, the doctrine adapts itself to the differentiation
of ministerial agents for different purposes in the same
therefore, seem that the proprietary right of crown
copyright is capable of being asserted by his majesty’s
attorney-general for that constitutional unit which has
jurisdiction to entertain the appropriate action. 
While the crown is one and indivisible throughout the
Dominions and their constituent parts it is necessary for
procedural purposes that the crown should be regarded as
separate juristic entities.  It would seem, therefore,
that the proprietary right of crown copyright would belong
to the crown in right of the Dominion or of the provinces
Attorney-General for the Dominion of Canada v.
Attorney-General for the Province of Ontario, Quebec and
Nova Scotia,  A.C. 700.
Attorney-General for Quebec v. Nipissing Central Railway
Co. and Attorney-General for Canada,  A.C. 715;
In re Silver Brothers: Attorney-General for Quebec v.
Attorney-General for Canada,  A.C. 514.
Attorney-General for New South Wales v. Butterworth and
Co. (Australia) Ltd.,  N.S.W.R. 195, at p. 250.
The Commonwealth v. The Colonial Combing, Spinning and
Weaving Co. Ltd., 31 C.L.R. 421, at p. 438.
Attorney-General for New South Wales v. Butterworth and
Co. (Australia) Ltd.,  N.S.W.R. 195, at p. 250.
Cf. Attorney-General for Quebec v. Nipissing Central Ry.
Co.,  A.C. 715; In re Silver Brothers:
Attorney-General for Quebec v. Attorney-General for Canada,
 A.C. 514.
upon where the copyright came into being. This point will
be referred to at another stage.
THE UNIVERSITY OF TORONTO LAW
therefore, be no question but that crown copyright existed
by virtue of the prerogative immediately prior to the
commencement of The Canadian Copyright Act in 1924. Such
copyright was in no way affected by the enactment of
sections 42 (5), 45, or 11 of that act by reason of the
principles contained in section 16 of the Interpretation Act
coupled with the clear intent of the opening phrase of
section 11 to the effect that it was to operate “without
prejudice to any rights or privileges of the Crown.”
Dunedin in Attorney-General v. De Keyser’s Royal Hotel
Ltd.  stated the settled principle that if the
whole ground of something which could be done by prerogative
is covered by a statute, it is the statute that rules,
nevertheless, it is an equally settled principle that the
prerogative can be abridged or curtailed only by specific
words or necessary implication.  The crown’s
proprietary right by way of copyright in such works as the
bible, the book of common prayer, acts of parliament,
orders-in-council, regulations and state papers generally,
therefore, still subsists by virtue of the prerogative and
is in no way dependent upon section 11 of the Copyright Act.
The copyright, as we have seen, is perpetual and is not
limited to the term specified in the statute.
It is obvious,
upon an examination of the terms of section 11, that certain
rights by way of copyright residing in the crown are
provided which are both narrower and at the same time wider
than those existing by virtue of the prerogative. They are
narrower in that by virtue of the prerogative right it is
not necessary to show that a work in question “is, or has
been, prepared or published by or under the direction or
control of His Majesty or any government department.” The
prerogative right subsists quite apart from authorship or
from responsibility or expense of publication but depends
solely upon the kingly character of the crown as head of the
church and state and the corresponding duty to act as
guardian and protector of both. This is of some importance
in the consideration of the position of acts of parliament
for in the legal sense there is no author of a statute. It
might of course be reasonably argued that a statute is a
literary work and as such must have an author or authors and
copyright therefore subsists in it, or in the alternative,
that it falls within the
 A.C. at 526.
v. Landry, (1876) 2 A.C. 102, at p. 106 (per Lord
Cairns L.C.) Woolley v. Attorney-General of Victoria,
(1877) 2 A.C. 163, at p. 167; The Odessa,  1
A.C. 145, at p. 162 (per Lord Mersey); Jamieson v.
Downie,  A.C. 691, at p. 694 (per Lord
section 11 of the Copyright Act. But such an argument
becomes unnecessary when it is borne in mind that statutes
fall within the special type of copyrights which arise by
virtue of prerogative. Then, on the other hand, the statute
provides rights which may be wider than those subsisting by
virtue of the prerogative. There is no case reported where
regulations, reports, briefs, opinions, and a host of other
documents and works of that general type, have ever been
brought before a court on the basis of crown copyright
subsisting therein. The statute throws a wide net over
every work of that nature, which may or may not be the
subject of prerogative copyright. So long as it was
prepared by or under the direction or control of his majesty
or any government department, crown copyright subsists
therein. But the section goes even farther. The crown will
have copyright in any work so long as it is published by or
under such direction or control. Subject to any agreement
with the author, the crown will have copyright merely by
paying for the publication of a work or, even without paying
for it, by having it published under the direction or
control of the crown or a government department. This is a
reversal of the usual position with respect to ownership of
copyright, for the general basis of the statute is that
copyright shall in the first instance be the property of the
author.  This principle is departed from in the case
of contracts of service  and one or two other minor
particulars, but in the case of works prepared for or
published by the crown or the government no contract of
service is necessary to vest the copyright in the crown.
copyright again is narrower than the prerogative right in
that the former is limited in its duration to fifty years
from the date of publication while in the latter case it is
perpetual. It is of much importance to ascertain whether
the crown is, and has been in the past, entitled to
copyright in these lesser types of publication by virtue of
its prerogative, whether in the nature of an executive power
or a proprietary right. On the principle settled in
Nicol v. Stockdale  it would seem that it is. If
such copyright exists it is perpetual in its nature, for the
decisions in Millar v. Taylor  and Donaldson
v. Becket  clearly indicate that the effect of the
statute of 1709, while effectively putting an end to
common-law copyright in published works on the part of
private authors, had no such effect on works belonging to
the crown. No statute since that time has
See s. 12.
See s. 12 (1) (b).
136.(1785) 3 Swan. 687.
(1769) 4 Burr. 2303.
(1774) 4 Burr. 2408; 2 Bro. C.C. 129.
provided otherwise and in considering this question,
emphasis must again be placed on section 11 of the Canadian
THE UNIVERSITY OF TORONTO LAW
therefore, appear on the principles above discussed that
statutes, orders-in-council, and state documents of all
types are subject to perpetual copyright by virtue of the
prerogative. Copyright in Dominion statutes and other
documents of a Dominion nature or origin will reside in the
crown in the right of the Dominion while copyright in
provincial statutes and other official documents of
provincial import will reside in the crown in the right of
the respective provinces. If, on the other hand, it should
be held that copyright by crown prerogative exists only in
the more important classes of works which have been the
subject of the various decisions herein discussed different
principles will arise. For such a determination there is no
authority in the decided cases and Nicol v. Stockdale
points the other way. But that is not to say that such a
decision may not be made. At what point a work would in
such a case be held to have ceased to be of sufficient
importance to fall into that class of works in which
perpetual copyright subsists by virtue of the prerogative
would obviously be a matter of some nicety.
If this view is
correct, then the earlier discussion of the scheme of the
Copyright Act becomes of considerable importance. Not all
works published before the act of 1921 were the subject of
copyright. The subject is too complicated to discuss in
detail here,  but it is sufficient to say, as an
example, that artistic works were not entitled to Canadian
copyright unless the terms of the Dominion Copyright Act of
1906  with respect to their publication and
registration had been complied with. Those works in which
copyright did not subsist immediately prior to January 1,
1924, received no rights under the transition section of the
new act. It is quite probable that considerable numbers of
government documents and works made before 1924 were not
registered under the 1906 act and, subject to any rights in
literary works which might have been acquired by the crown
under the Imperial Literary Copyright Act of 1842, 
those works would not acquire copyright under the act of
1921 and, if they did not fall within the class of works
subject to the prerogative proprietary right, would not now
be the subject of any copyright. The discussion, being
hypothetical, need not be pursued farther. It is submitted
that crown copyright does not depend upon statute.
But the decided
cases have so far considered only isolated instances of
crown copyright and have spoken vaguely of the “somewhat
139. See Fox, Canadian Law of
Copyright, chap. XII, at p. 199.
R.S.C. 1906, c. 70.
and 6 Vic., c. 45.
works” the sole right of printing which resides in the
crown. It is submitted that that is hardly an accurate
statement of the law if it is meant to be restrictive in any
way of the works in which the crown may have perpetual
copyright. We have seen that Donaldson v. Becket
 held that the effect of the statute of Anne was to
extinguish the right on the part of the private author in
published works so far as perpetuity was concerned, 
but an examination of the judgement in Millar v. Taylor
 will show that the statute had no effect on crown
copyright. It is therefore submitted that, in any case
where the crown can show the existence of a proprietary
right occasioned by authorship on the part of its servants,
in the course of their employment, it will be entitled to
perpetual copyright apart from the terms of section 11 of
the act. The decided cases, therefore, with respect to
statutes, the bible, etc., are of importance only as
indicating the existence of this proprietary right which
might otherwise be questioned on the ground of non-proof of
authorship. This view is strengthened by noting that it is
only the authorized translation of the bible which is so
protected. Any other version or translation is free for
reproduction at will. On this view of the law, section 11
of the Canadian act is redundant and unnecessary. Perpetual
crown copyright not having been specifically extinguished by
statute subsists in all crown and government documents and
the opening phrase of section 11 serves to emphasize that
of Crown Copyright
Britain the practice relative to the enforcement by the
crown of its copyright in various works has been clarified
by, the issue of two treasury minutes. The first, dated
August 31, 1887, divided crown publications into seven
classes as follows: (1) reports of select committees of the
two houses of parliament, or of royal commissions; (2)
papers required by statute to be laid before parliament,
e.g., orders-in-council, rules made by government
departments, accounts, reports of government inspectors; (3)
papers laid before parliament by command, e.g., treaties,
diplomatic correspondence, reports from consuls and
secretaries of legation, reports of inquiries into
explosions or accidents, and other special reports made to
government departments; (4) acts of parliament; (5) official
books, e.g., king’s regulations for the army or navy; (6)
literary or quasi-literary
(1774) 4 Burr. 2408.
1t is to be noted that perpetual copyright in unpublished
works remained in effect, so far as Canada was concerned,
(1769) 4 Burr. 2303.
the reports of the “Challenger” expedition, the rolls
publications, the state trials, the “Board of Trade
Journal”; and (7) charts and ordnance maps.
treasury minute, that of June 28, 1912  recites the
above classification and then proceeds to state that a
considerable and increasing number of government works falls
into the three last classes above. These, often produced at
considerable cost, are not to be reproduced by private
enterprise for the benefit of individual publishers. They
are to bear on their title page an indication that crown
copyright is reserved; any infringement is to be brought to
the notice of the controller of the stationery office who
will refer to the treasury board for instructions as to
whether such infringement shall be made the subject of legal
proceedings. The publications which fall into the first
four classes are issued for the use and information of the
public, and it is desirable that the knowledge of their
contents should be diffused as widely as possible. In the
case of these publications no steps will ordinarily be taken
to enforce the rights of the crown in respect of them. The
rights of the crown will not, however, lapse, and should
exceptional circumstances appear to justify such a course it
will be possible to assert them. Procedure is indicated if
such a course of action is decided upon, and it is noted
that acts of parliament, except when published under the
authority of the government, must not purport on the face of
them to be published by authority.
treasury minutes above set out constitute no infallible
guide to the copyist. Governments seldom commit themselves
to a divesting of rights without leaving a convenient handle
by which they may be grasped and revested. The words of the
minute of 1912 indicate as much, and two cases show that
care must be exercised in dealing with government
publications. Thus, in Rex v. Mutch,  a
defendant was fined for piracy of an ordnance survey map and
ordered to deliver up or destroy all remaining copies. In
the second case, which we have already had occasion to
consider,  a well-known Australian law book publisher
was restrained by injunction from printing the statutes of
New South Wales to which copious notes and information of an
original character had been added at great expense to the
publisher. It will be noted that the subject-matter of the
action concerned one of the classes of publications which,
according to the imperial practice, are issued for the use
and information of the public and are to be diffused as
widely as possible. Although this was an Australian
Parliamentary Paper, no. 292 of 1912.
(1914) Mang. Cop. Cas. 159.
Attorney-General for New South Wales v. Butterworth and
Co. (Australia) Ltd.,  N.S.W.R. 195.
principle is the same and the situation might well arise in
Canada. One is, however, prompted to question whether the
basis of enforcing such a crown prerogative copyright does
not lie more in the profit to be gained by the king’s
printer than in the dissemination of accurate and useful
copies of the statutes to the public. Experience has shown
that most reputable publishing houses are at least as
careful and accurate in their type-setting as the various
directions or minutes of instruction respecting the use of
crown copyright have been issued by the responsible
authorities in Canada. Until such time as they are, it
would seem that the public must rely exclusively on such
publications as are put out by the government and must make
no use of them in any form by way of reproduction. And that
last statement must be taken literally. The crown is not
subject to the terms of the Copyright Act relating to
permitted acts of infringement  and it would therefore
seem that the publication of even one section of a statute
would technically constitute an infringement. It may well
be that the Canadian government would not bring action for
such a miniscule infringement of its privilege, but
text-books writers and newspapers should not be left in such
a position of uncertainty.
formerly opinion somewhat vaguely expressed to the effect
that statutes could be printed if they were used purely as a
basis for the writing of comments and annotations. Thus in
Baskett v. Cunningham,  a case which concerned the
publication of A Digest of the Statute Law containing
the statutes at large, methodized under alphabetical heads,
with notes from Coke and other writers, the lord chancellor,
in considering the grant of an injunction, stated that in
his opinion the work was within the patent of the king’s
printer, and that the notes were merely collusive. Such a
consideration flowed from the opinion then held, that an
abridgement of a work, fairly made, and upon which skill and
labour were expended, would not be restrained.  Such
an opinion, however, confused subsistence of copyright with
infringement of copyright. Such an abridgement may
constitute an original work capable of acquiring copyright,
 but that is not to say that its publication will
escape a charge of infringement.  Whether, there‑
(1762) 1 Wm. El. 371.
Gyles v. Wilcox, (1742) Atk. 141; Dodsley v.
Kinnersley, (1761) Amb. 403; Hawkeworth v. Newbery,
(1774) Lofft 775; Bell v. Walker, (1785) 1 Bro. C.C.
451; D’Almaine v. Boosey, (1835) 1 Y. & C. Ex. 288;
Hodges v. Welsh, (1840) 2 Ir. Eq. 266.
Leslie v. Young and Sons, (1894) A.C. 335; Macmillan
v. Cooper, (1923) 40 T.L.R. 186.
Tinsley v. Lacy, (1863) 1 H. & M. 747; Dickens v.
Lee, (1844) 8 Jur. 183.
the matter is abridged or added to makes no difference in
principle. The question for decision is whether there has
been a substantial reproduction of protected material. It
may now be taken as settled law that the addition of notes,
comments, annotations, illustrations, or other material,
while it may create a new work capable of acquiring
copyright, will not avoid a charge of infringement. 
This principle applies, on direct authority, to annotated
editions of the statutes. 
THE UNIVERSITY OF TORONTO LAW
Shortly after the invention of printing, in the reign of
Henry VI, a printing press was set up at Oxford. The
University of Cambridge soon followed suit, and the two
seats of learning claimed thereafter the sole right of
printing a number of works. To this list was added those
works of which the sole right of printing was granted to
them by royal letters patent. These letters patent have
from time to time given to the universities either the sole
right or, what is more usual, the concurrent right with the
king’s printer, of printing the bible, the new testament,
book of common prayer, administration of the sacrament, and
other rites and ceremonies of the Church of England. 
But when, in 1774, in the case of Donaldson v. Becket,
 the house of lords decided that perpetual copyright at
common law in published works had been extinguished by the
Copyright Act of 1709, the universities applied for and
obtained an act of parliament which gave them perpetual
copyright in all works the copyright in which had been given
or bequeathed to them or might thereafter be given or
bequeathed. This act,  which in its preamble was
stated to be for the purpose of amending the act of 8 Anne,
provided that the two universities in England, the four
universities in Scotland, and the several colleges of Eton,
Westminster, and Winchester should, at their respective
presses, have the sole liberty of printing and reprinting
all works theretofore bequeathed or given, or at any time
thereafter bequeathed or given by their authors or their
representatives to or in trust for any such institution
unless given only for a term of years. 
Butterworth v. Robinson, (1801) 5 Ves. 709.
Attorney-General for New South Wales v. Butterworth and
Co. (Australia) Ltd.,  N.S.W.R. 195.
Cf. The Universities of Oxford and Cambridge v.
Richardson, (1802) 6 Ves. Jun. 689; Hills v.
University of Oxford et al., (1684) 1 Vern. 275; The
Company of Stationers v. Parker, (1685) Skin. 233.
(1774) 4 Burr. 2408.
15 Geo. III, c. 53.
was to endure only so long as the books or copies were
printed by the universities and colleges at their own
printing presses and for their sole benefit and advantage;
without derogating from the right to sell copyright under
the Copyright Act of 8 Anne, the right given by the present
act was to be void if any of the copyrights were sold or
licensed, or any other person permitted to print any of the
works.  All existing copyrights were to be registered
by a prescribed date in the register of the stationers’
company and all future copyrights were to be so registered
within two months of their gift or bequest.  By an act
of 1801  Trinity College, Dublin, was given a similar
perpetual copyright in the same terms as provided in the
case of the other universities.
The rights of
the universities and colleges above mentioned were saved
from the operation of the Literary Copyright Act, 1842, by
section 27, which provided : “That nothing in this Act
contained shall affect or alter the Rights of the Two
Universities of Oxford and Cambridge, the Colleges or Houses
of Learning within the same, the Four Universities in
Scotland, the College of the Holy and Undivided Trinity of
Queen Elizabeth near Dublin, and the several Colleges of
Eton, Westminster, and Winchester, in any copyrights
heretofore and now vested or hereafter to be vested in such
Universities or Colleges respectively, any thing to the
contrary therein contained notwithstanding.” 
Copyright Act of 1911,  provides that nothing therein
shall deprive any of the universities and colleges mentioned
in the Copyright Act, 1775, of any copyright they already
possess under that act, but the remedies and penalties for
infringement of any such copyright shall be under the new
and not under the old act. The effect of this section is
that while all existing university copyrights are continued
in perpetuity, no new perpetual copyrights can be created.
The Canadian Copyright Act, section 47, repeals all the
enactments relating to copyright passed by the parliament of
the United Kingdom so far as they are operative in Canada,
but provides that such repeal shall not prejudicially affect
any legal rights existing at the time of the repeal.
41 Geo. III, c. 107, s. 3. 1625 and 6 Vic., c. 45, s. 27.
The Copyright Act of 1775, 15 Geo. III, c. 53 is. repealed
by s. 36 of the Imperial Copyright Act of 1911, second
schedule, although, strangely enough, nothing is said as to
the repeal of 41 Geo. III, c. 107 respecting Trinity
situation, therefore, with regard to university copyright in
Canada at the present time depends upon an answer to the
question as to whether the act of 1775 was in effect in
Canada immediately prior to January 1, 1924. This question
has never been adjudicated in any case. The only guide
therefore must be by way of analogy. The first light on the
subject is shed by an examination of the position of the
Literary Copyright Act, 1842. In Smiles v. Belford
 the court of appeal for Ontario held that the Imperial
Act of 1842 was in force in that province notwithstanding
the fact that the Dominion parliament had exercised its
power, as set forth in the British North America Act, 1867
 to pass a statute relating to copyright.  It
must, however, be pointed out that by section 29 of the act
of 1842, its provisions were enacted to extend to “every
part of the British Dominions.” So also, the Dramatic
Copyright Act of 1833,  which was held to be in force
in Canada  was by its main enacting section170 made
applicable to “any part of the British Dominions.” Section
2 of the act provided for penalties against persons for
performing pieces contrary to the act as well in the British
Dominions as in the United Kingdom. On the other hand, the
Fine Arts Copyright Act, 1862  was held by the judicial
committee not to extend to Canada.  The Fine Arts
Copyright Act was not expressed to extend to the Dominions
and the sections which provided remedies for infringement
 referred only to acts in the United Kingdom. So also,
in providing for matters of procedure,  the act spoke
only of the superior courts of record at Westminster and
Dublin. For the same reason it has been suggested, although
with some doubt, that the Imperial Copyright (Musical
Compositions) Act, 1882,  was never in force in Canada
THE UNIVERSITY OF TORONTO LAW
(1877) 1 O.A.R. 436.
38 Vic., c. 88, continued as R.S.C. 1906, c. 70.
Wm. IV, c. 15.
Stniies v. Belford, see n. 165.
25 and 26 Vic., c. 68.
Graves v. Gorrie, [1900-2] 32 O.R. 266; 1 0.L.R. 309;
3 O.L.R. 697;  A.C. 496; see also Black v. Imperial
Book Co.,  5 O.L.R. 184; Mansell v. Star
Printing and Publishing Co. of Toronto Ltd.,  3
All E.R. 912; Francis Day and Hunter v. Twentieth Century
Fox Corporation,  4 All E.R. 192.
45 and 46 Vic., c. 40.
Canadian Performing Right Society v. Famous Players Canadian
Corporation Ltd.,  60 O.L.R. 280, at p. 290 (per
consideration is given to the act of 1775  it will be
noted that section 2 provided that the penalty for
infringement of copyright held by the English and Scottish
universities and the three colleges was “to be recovered in
any of his Majesty’s courts of record at Westminster, or in
the Court of Session in Scotland.” The act  conferring
perpetual copyright on Trinity College, Dublin, was, by its
terms, made applicable only to “the United Kingdom and the
British Dominions in Europe.” Actions for infringement are
to be brought in the courts of record of the United Kingdom
or of the British Dominions in Europe, in which the offence
was committed. 
therefore appear that, on the principles applicable to the
Fine Arts Copyright Act, 1862, neither of the imperial acts
relative to university copyright was at any time in force in
Canada. It must be noted that section 27 of the Literary
Copyright Act, 1842, did not serve to extend the earlier
acts to Canada. Section 27 of the 1842 act merely preserved
the rights of the universities and colleges, and although
the act of 1842 was in force in Canada, the effect of
section 27 was only to save rights and not to extend them.
Little help is
obtainable from internal sources in Canada. As noted above,
no case has discussed the problem. The Canadian Copyright
Act of 1921 contains no schedule of statutes repealed as
does the Imperial Act of 1911. Curiously enough a bill was
brought down before the Canadian parliament in 1911 in
somewhat similar terms  to the Imperial Act of the same
year but was not enacted. That bill contained a schedule of
statutes to be repealed which was in terms practically
identical with the like schedule in the Imperial Act. The
only difference between the two schedules was that by the
Imperial Act of 1911, all the sections of the act of 1775
were repealed, but by the Canadian bill it was proposed to
repeal only sections 2, 4, and 5, leaving sections 1 and 3
still in force, thus preserving the perpetual copyright of
the United Kingdom universities and colleges without
requiring registration or providing any penalties for their
infringement. From this it might be supposed that the law
officers of the crown in Canada were of the opinion that the
act of 1775 was in force in Canada and that it was desired
to retain the perpetual copyright
15 Geo. III, c. 53.
41 Geo. III, c. 107.
The main differences in principle were that it required
registration as a condition precedent to the subsistence of
copyright; it granted copyright only to residents of Canada;
it required notice of copyright to appear on the work, and
required works published in Canada to be printed or made in
the universities. This view might have some force if it
were, not for the fact that, in the same schedule, there was
numbered among the acts to be repealed, certain sections of
the Fine Arts Copyright Act, 1862, which eight years earlier
the privy council had held not to extend to Canada. 
Although this bill was not enacted as a statute until the
revised bill which resulted in the act of 1921 was brought
down, this incident is another example of the quality of
statutory draftsmanship which from time to time gives so
much trouble and difficulty to the courts of Canada and
provides so much well-earned remuneration to lawyers.
THE UNIVERSITY OF TORONTO LAW
that neither of the acts conferring copyright in the
universities was ever in force so far as Canada is
concerned, what is the position of works given or bequeathed
to the enumerated British universities and colleges so far
as Canadian copyright at present is concerned? Saving any
rights existing at the time of the repeal, section 47
repealed all imperial enactments relating to copyright so
far as they were operative in Canada. The acts of 1775 and
1801, not being in force in Canada, there was nothing to
repeal and no rights to save. By section 45 no person is
entitled to copyright or any similar right otherwise than in
accordance with the terms of the 1921 act. Therefore,
whatever rights the British universities and colleges may
have by way of Canadian copyright, among them cannot be the
right of perpetual copyright to which they are entitled in
Great Britain but only the copyright provided by the act of
1921. In order to obtain this right they must show that
they had copyright subsisting in Canada prior to January 1,
1924, which will thus bring them within the provisions of
the transition section  and thus provide the
substituted right set forth in the first schedule.
We need examine
only two types of works, literary and artistic. The first
is answered by a reference to the acts of 1775 and 1801,
which required registration at stationers’ hall. If they
were not so registered they did not obtain perpetual
copyright. But registration did something more than that so
far as our present examination is concerned. It served also
to confirm in the owners of such works copyright under the
Literary Copyright Act, 1842. Under that act, which
remained in force until the enactment of the Imperial
Copyright Act of 1911, the term of copyright was the life of
the author and seven years after his death. If, therefore,
registration in the registers of the stationers’ company was
made by any of the enumerated universities and colleges in
accordance with their particular statutes or under the act
of 1842, or even without registration,
Graves v. Gorrie,  A.C. 496.
publication took place in British territory, and that
copyright was subsisting on December 31, 1923, it obtained
the benefit of the transition section of the Canadian Act of
1921, and received the substituted right provided by the
first schedule of that act. It is probably too obvious to
require stating that, if registration had been made under
the Canadian Act of 1906 and that copyright was still
subsisting it would, by virtue of the transition section,
also receive the substituted right under the 1921 act. If a
university had not registered it, of course, obtained no
copyright under the act of 1775 and, if it had not first
published in British territory, it obtained no copyright
under the act of 1842, and therefore obtained no copyright
under the terms of the transition section of the Canadian
act. If such copyright did subsist but the author had been
dead for more than seven years at the time of the
commencement of the 1921 act it obtained no benefit
therefrom. The enumerated colleges are therefore in the
position that, with respect to a considerable number of
works in which they hold perpetual copyright in the United
Kingdom and those other British Dominions to which the
imperial legislation applies, they will, in some, have no
Canadian copyright at all, while in others, they will have
the limited right enduring for the period set out in the
Canadian act. For it must be noted that the effect of the
transition section is, in many cases, to extend the life of
copyright. Whereas under the 1842 act it lapsed seven years
after the author’s death, under the 1921 act it lapses only
at the end of fifty years from the death of the author. As
to present and future works, the universities and colleges
are in the same position here as in England. They obtain
copyright in accordance with the act of 1921 and for the
term therein specified, or they obtain no copyright at all.
With respect to
artistic works the situation is even more simple. If the
universities did not register their copyrights in artistic
works under the Canadian Act of 1875  they did not
obtain Canadian copyright and so had no right which was in
existence at the time of the commencement of the 1921 act,
which could receive the benefit of the transition section.
Registration at the stationers’ company could not serve to
create Canadian copyright in an artistic work as it did in
the case of a literary work and, unless copyright was
subsisting at the effective date, there was nothing to which
the substituted right could be transferred.
So far, we have
been speaking of published works. If, of course, a work was
in the hands of one of the designated universities in an
unpublished condition it was entitled to common-law
copyright which on
R.S.C. 1906, c. 70.
stated in Donaldson v. Becket  endured without
limitation until publication. Being entitled to common-law
copyright it obtained the substituted right under the 1921
act.  The common-law copyright existing in such
unpublished work was an inchoate right which could be turned
into an actual right by a formal act,  and therefore
fell within the classes of works in which copyright
subsisted and which received the benefit of the transition
section. Upon future publication, copyright in such a work
will subsist in accordance with the provisions of the act of
HAROLD G. Fox
School of Law,
University of Toronto.
184.(1774) 4 Burr. 2408; see also Mansell v. Valley
Printing Co.,  2 Ch. 441, at p. 447.
In re Dickens,  1 Ch. 267, at p. 307.
E. W. Savory Ltd. v. World of Golf Ltd.,  2 Ch.
566; and cf. H. G. Fox: “Some Points of Interest in the Law
of Copyright,” 6 University of Toronto Law Journal
(1945), at p. 119.
The universities in Canada, most of which are corporate
bodies created by statute are capable, as are other types of
corporation, of acquiring and owning copyright. (Cf.
Massie and Renwick v. Underwriters’ Survey Bureau Ltd. et al,
 S.C.R. 218, at p. 229.) Some at least of the
provinces have passed special legislation vesting in the
universities the power to acquire and hold patents, trade
marks, and copyright (see, e.g., The University Act. R.S.O.
1937, c. 372, s. 32(iii)), but such provisions are redundant
and unnecessary. Apart from this there are no special
statutory provisions affecting copyright owned by
universities in Canada.