Index I.                   Historical Introduction II.                Crown Copyright by Statute III.             Crown Copyright by Prerogative (1)  Works of Religion (2)    Statutes and Public Documents (3)   Law Reports (4)     Miscellaneous Works IV.       Crown Copyright in Canada V.          Enforcement of Crown Copyright VI.     University Copyright (1)   Imperial (2)   Canadian HHC – Index added.

I. Historical Introduction

PRINTING, upon 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”. [1]  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 copies. [2]

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, [3] which, modelled on the British act of 1911, [4] 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. [5]  Among the points which that statute has left unclarified are those relating to the position in Canada of copy-

1. At the bar of the house of commons, as counsel for Carnan, the bookseller, who resisted the supposed crown prerogative copyright in almanacs.

2. J. Chitty, Prerogatives of the Crown (London, 1820), at p. 238.

3. 11 and 12 Geo. V, c. 24, revised as R.S.C. 1927, c. 32.

4. 1 and 2 Geo. V, c. 46.

5. The Canadian Copyright Act of 1921 came into force on January 1, 1924.

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right belonging 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.

The general position of copyright prior to the enactment of the first Copyright Act in England in 1709 [6] 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. [7]  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, [8] 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 [10] 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. [11]

6. 8 Anne, c. 19.

7. E. W. Pollard, Shakespeare’s Fight with the Pirates (Cambridge, 1920), p. 2. 8. 8. C.B. Judge., Elizabethan Book-Pirates (Cambridge, 1934), p. 5.

9. The 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.

10. 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 Grammar.

11. 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 statute.]

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The historical basis of copyright prior to the first Copyright Act of 1709 [12] 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 [13] and in 1538 [14] 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. [15]  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, 1637.

The stationers’ 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. [16]  By its charter its members were granted the sole right to print throughout England, excepting the holders of the royal grant of letters

12. 8 Anne, c. 9.

13. 25 Hen. VIII, c. 15.

14. Cf. Bowker on Copyright, at  pp. 19-20; Pollard, Shakespeare’s Fight with the Pirates, pp. 5-6.

15. Judge, Elizabethan Book-Pirates, p. 15.

16. Cf. E. Arber, 1 Transcript of the Registers of the Stationers’ Company (London, 1875-94), pp. xix-xxiv.

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patent, and 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’.” [17]

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 [18] 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. [19]  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. [20]

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

17. (1769) 4 Burr, at p. 2313.

18. 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.

19. 0n 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.

20. Millar v. Taylor, (1769) 4 Burr, 2303, at p. 2376 (per Wiles J.).

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the long 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 [21] 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. [22]  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. [23]  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. [24]  The Licensing Act of 1662 was continued and revived from time to time, [25] finally expiring in 1694.  After a short hiatus the first statutory protection of copyright was enacted in 1709. [26]  It was only the final expiration of the licensing acts which, as Lord Erskine observed, [27] 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 [28] 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

21. 13 and 14 Car. 2, c. 39.

22. Cf. The Stationers v. The Patentees about the Printing of Rolle’s Abridgment, (1666) Cart. 89, at p. 91.

23. 8 House of Commons Journal, p. 425; Drone on Copyright (Boston, 1879), at p. 57.

24. H. 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.

25. 1 Jac. 2, c. 17; 4 Win. and Mary, c. 24; cf. Millar v. Taylor, (1769) 4 Burr. 2303, at 2317.

26. Copyright Act, 8 Anne, c. 19.

27. See supra, note 1.

28. (1769) 4 Burr. 2303, at p. 2313.

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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 [29] 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.

The Copyright 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 [30] over-ruling Millar v. Taylor [31] 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. [32]  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. [33]

The statute of 1709 was replaced by the Literary Copyright Act, 1842, [34] which remained the governing statute as to literary copyright until it was repealed by the Copyright Act, 1911. [35]

29. (1769) 4 Burr. 2303.

30. ( 1774 ) 4 Burr. 2408.

31. ( 1769 ) 4 Burr. 2395.

32.Beckford v. Hood, (1897) 7 Term Rep. 620; lefferys v. Boosey, (1854) 4 H.L.C. 815.

33.Mansell v. Valley Printing Co., [1908] 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, [1896] 1 Q.B. 147; Exchange Telegraph Co. v. Central News Agency, [1897] 2 Ch. 48; Philip v. Pennell, [1907] 2 Ch. 577.

34.5 and 6 Vic., c. 45.

35.Imp. 1 and 2 Geo. V, c. 46.

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104                       THE UNIVERSITY OF TORONTO LAW JOURNAL

Coming to a consideration of copyright legislation in Canada, [36] the first Canadian enactment, passed under the authority conferred on the parliament of Canada by the British North America Act, 1867 [37] was the Copyright Act of 1868. [38]  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, Ottawa.

But, 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 [39] 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 [40] and by the supreme court of Canada in Black v. Imperial Book Co. [41]  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. [42]

The scheme of the Canadian Copyright Act of 1921 [43] 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. [44]  By the second it repealed all legislation of the parliament of the United Kingdom so far as operative in Canada [45] and abolished all copyright apart from its own provisions. [46]  By the third it provided for a transition of all copyrights in existing works to the rights provided under the new

36. 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.

37. S. 91 (23 ) .

38. 31 Vic., c. 54.

39. (1868) L.R. 3 H.L. 100.

40. (1877) 1 O.A.R. at p. 447.

41. ( 1904 ) 8 O.L.R. 9; 35 S.C.R. 488.

42. 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.

43. 11 and 12 Geo. V, c. 24; R.S.C. 1927, c. 32.

44. Ss. 3 and 4.

45. S. 47.

46. Ss. 45 and 42(5).

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statute, giving 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. [48]

 

II. Crown Copyright by Statute

Copyright in crown publications [49] 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.”

Where, 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. [50]  It is, therefore, import‑

47. S. 42.

48. S. 47.

49. We 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., [1926] 1 Ch. 433).

50. Imp. s. 19.

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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. [51]

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 11.

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 [52] the crown can be bound by statute only if the statute expressly

51. Fox, Canadian Law of Copyright, at pp. 220 ff.

52. 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.”

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states that the crown shall be bound. [53]  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. [54]  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.

 

III. Crown 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. [55]

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 [56] 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

53. In re Silver Brothers: Attorney-General for Quebec v. Attorney-General for Canada, [1932] A.C. 514.

54. S. 42.

55. Millar v. Taylor, (1769) 4 Burr. 2303, at p. 2401 (per Lord Mansfield). 56. (1758) 1 Wm. Bl. 105, at p. 114.

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of monopolies 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 [57] 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 Religion. 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. [58]  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 [59] 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 punishing

57. (1769) 4 Burr 2303, at p. 2329.

58.3 Inst. c. 97.

59. Cf. Foxe’s Book of Martyrs, p. 290.

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of infringements of the regulations in respect to printing. [60]  By this time the theory of crown prerogative, at least so far as ownership of certain copyright is concerned, had become fixed.

Before the restoration, there were no questions in the courts of common law concerning crown copyright. [61]  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.” [62]  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.

The printing 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. [63]  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, [64] the more gener‑

60. 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).

61. Millar v. Taylor, (1769) 4 Burr. 2303, at p. 2401 (per Lord Mansfield).

62. The Stationers v. The Patentees about the Printing of Rolle’s Abridgment, (1666) Car. 89, at p. 90.

63. 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.

64. 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 [decision in 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 original publication.”]

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ally accepted 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. [65]  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.” [66]  Although all the judges in the famous case of Millar v. Taylor [67] 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 [68] 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.” [69]

Copyright by 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, [70] 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

65. 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.

66. Supra.

67. (1769) 4 Burr. 2303.

68. (1802) 6 Ves. Jun. 690, at p. 696.

69. See also Manners et al. v. Blair, (1825) 3 Bligh. N.S. 391, at p. 403 (per Lord Lyndhurst), discussed infra.

70. In re “The Red Letter New Testament (Authorized Version),” (1900) 17

T.L.R. 1.

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crown’s rights in this regard.  In Grierson v. Jackson [71] 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.” [72]

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, [73] 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

71. (1794) Ridg. L. & S., 304.

72. (1769) 4 Burr. at 2405.

73. See infra.

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doctrines of 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. [74]  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 applicable.

The law is not favourably disposed towards monopolies [75] 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 [76]  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. [77]  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. [78]

(2) Statutes and Public Documents. It has been observed that the power of promulgating laws and providing for their due execution resides

74. Chitty, Prerogatives of the Crown, at p. 240.

75. Cf. Statute of Monopolies, (1623) 21 Jac. I, c. 3.

76. Chitty, Prerogatives of the Crown, at p. 239.

77. Cf. Hanson and Evans, 2 Burn’s Ecc. Law 207, at p. 218 (per Lord Mansfield); Bowman v. Secular Society Ltd., [1917] A.C. 405, at p. 475 (per Lord Buckmaster).

78. It 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.

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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. [79]

The crown 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.

The crown’s 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. [80]  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. [81]  Printing the laws has been held to be a matter of state and one which concerned the state. [82]  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. [83]  As

79. 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).

80. (1666) Cart. 89.

81. Roper 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, [1938] 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., [1937] N.S.W.R. 195.

82. Company of Stationers v. Lee, (1683) 2 Ch. Cas. 76 (per Lord Nottingham

L. C.).

83. 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.]

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Lord 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.” [84]

The historical basis of the prerogative copyright in statutes and proclamations was indicated by Skinner L. C. B. in Eyre and Strahan v. Carman:

There are 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 such. [85]

But although 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, [86] 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 magistrate,

84. (1769) 4 Burr. 2303, at 2404.

85. (1781) 6 Bac. Abr., 7 ed., pp. 509-12.

86. Manners, Miller and Buchan v. Blair, (1825) 3 Blight. N.S. 391 (per Lyndhurst, L.C.).

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carrying with it a corresponding prerogative. [87]

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 [88] 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 [89] and Attorney-General of New South Wales v. Butterworth and Co. (Australia) Ltd. [90] accord completely with this view.

(3) Law Reports. The 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. [91]  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

87. 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 L.C.).

88. [1938] 3 D.L.R. 548, at p. 553.

89.  ( 1825) 3 Bligh. N.S. 391.

90. [1937] N.S.W.R. 195.

91. 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.

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decisions of the courts are not the subject of copyright whether of the judge preparing and delivering the opinion, the reporter, or the state. [92]  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. [93]  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 [94] 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 [95] but it is not claimed that list is by any means exhaustive.

(4) Miscellaneous Works. 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.” [96]  In Nicol v. Stockdale et al., [97] 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 the crown.

92. Wheaton v. Peters, (1834) 8 Pet. 591; Banks v. Manchester, (1888) 128 U.S. 244.

93. Howell v. Miller, (1898) 91 Fed. 129; Davidson v. Wheelock, (1866) 27 Fed. 61.

94. (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.

95. See infra.

96. [1938] 3 D.L.R. 548.

97. (1785) 3 Swans. 687.

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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.

Ordnance survey maps [98] 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 [99] 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 question.

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. [100]  No decision was given in that case however. [101]  It appears in Millar v. Taylor [101], 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.

98. R. v. Mutch, (1914) Macg. Cop. Cas. 159.

99. Supra.

100. (1713) 10 Mod. 105.

101. Cf. Millar v. Taylor, (1769) 4 Burr. 2402 (per Lord Mansfield). 102(1769) 4 Burr. 2303, at p. 2402 (per Lord Mansfield).

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Seymour [103]  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, [104] 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.” [105]  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. [106]

(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.” [107]  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. [108]

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

103. (1677) 1 Mod. 257.

104. (1775) 2 Wm. Bl. 1004, at p. 1009.

105. (1807) 13 Ves. Jun. 493, at p. 508.

106. Gurney v. Longman, (1807) 13 Ves. Jun. 493, at p. 508 (per Erskine L.C.). 107. (1769) 4 Burr. 2303, at p. 2401.

108. At p. 2383.

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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 [109] 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.

The decisions in Jefferys v. Boosey, [110] Caird v. Sime, [111] and Macmillan and Co. v. Dent [112] 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 [113] 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. [114]

 

IV. Crown 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 whether

109. (1774) 4 Burr. 2408.

110.(1854) 4 H.L.C. 815.

111. (1887) 12 A.C. 326.

112. [1907] 1 Ch. 107.

113. (1769) 4 Burr. 2303, at p. 2383.

114. Millar v. Taylor, (1769) 4 Burr. 2401; 5 Bac. Abr. 598; Chitty, Prerogatives of the Crown, at p. 241.

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such 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 :

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. [115]

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 Britain.” [116]

There is also direct authority on the point.  In Rex v. Bellman [117] 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

115. (1825) 3 Bligh. N.S. 391, at p. 403.

116. [1892j A.C. 437, at p. 441.

117. [1938] 3 D.L.R. 548.

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as public 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 [118] 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. [119]  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..” [120]

After an elaborate review of the authorities on the constitutional position [121] 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 limited,

118. At p. 557.

119. Attorney-General for New South Wales v. Butterworth and-Co. (Australia) Ltd., [1938] N.S.W.R. 195.

120. At p. 236.

121. 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, [1916] 2 A.C. 610; Toy v. Musgrave, [1891] A.C. 272; Bonanza Creek Gold Mining Co. Ltd. v. The King, [1916] 1 A.C. 566; Attorney-General for Ontario v. Attorney-General for Canada, [1912] A.C. 571.

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is 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.”

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, [122] 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, [123] 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 [124] 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. [125]  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

122. At  pp. 245ff.

123. 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.

124. (1769) 4 Burr. 2303.

125. This point was more generally settled in .The Liquidators of the Maritime Bank of Canada v. The Receiver General of New Brunswick, [1892] 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, [1907] A.C. 179; In re Commonwealth Agricultural Service Engineering Ltd., [1928] S.A.S.R. 342.

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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. [126]  Such legislative power can not be so exercised in Canada as to deprive a province of proprietary rights which it possesses. [127]

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. [128]  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 locality.” [129]

It would, 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. [130]  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. [131]  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 respectively,

126. Attorney-General for the Dominion of Canada v. Attorney-General for the Province of Ontario, Quebec and Nova Scotia, [1898] A.C. 700.

127. Attorney-General for Quebec v. Nipissing Central Railway Co. and Attorney-General for Canada, [1926] A.C. 715; In re Silver Brothers: Attorney-General for Quebec v. Attorney-General for Canada, [1932] A.C. 514.

128. Attorney-General for New South Wales v. Butterworth and Co. (Australia) Ltd., [1938] N.S.W.R. 195, at p. 250.

129. The Commonwealth v. The Colonial Combing, Spinning and Weaving Co. Ltd., 31 C.L.R. 421, at p. 438.

130. Attorney-General for New South Wales v. Butterworth and Co. (Australia) Ltd., [1938] N.S.W.R. 195, at p. 250.

131. Cf. Attorney-General for Quebec v. Nipissing Central Ry. Co., [1926] A.C. 715; In re Silver Brothers: Attorney-General for Quebec v. Attorney-General for Canada, [1932] A.C. 514.

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depending upon where the copyright came into being.  This point will be referred to at another stage.

There can, 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.”

Although Lord Dunedin in Attorney-General v. De Keyser’s Royal Hotel Ltd. [132] 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. [133]  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

132. [1920] A.C. at 526.

133.Theberge 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, [1916] 1 A.C. 145, at p. 162 (per Lord Mersey); Jamieson v. Downie, [1923] A.C. 691, at p. 694 (per Lord Buckmaster).

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terms of 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. [134]  This principle is departed from in the case of contracts of service [135] 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.

The statutory 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 [136] it would seem that it is.  If such copyright exists it is perpetual in its nature, for the decisions in Millar v. Taylor [137] and Donaldson v. Becket [138] 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

134. See s. 12.

135. See s. 12 (1) (b).

136.(1785) 3 Swan. 687.

137.  (1769) 4 Burr. 2303.

138. (1774) 4 Burr. 2408; 2 Bro. C.C. 129.

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ever provided otherwise and in considering this question, emphasis must again be placed on section 11 of the Canadian statute.

It would, 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, [139] 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 [140] 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, [141] 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 miscellaneous

139. See Fox, Canadian Law of Copyright, chap. XII, at p. 199.

140. R.S.C. 1906, c. 70.

141. 5 and 6 Vic., c. 45.

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collection of 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 [142] 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, [143] but an examination of the judgement in Millar v. Taylor [144] 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 submission.

 

V. Enforcement of Crown Copyright

In Great 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

142. (1774) 4 Burr. 2408.

143. 1t is to be noted that perpetual copyright in unpublished works remained in effect, so far as Canada was concerned, until 1924.

144. (1769) 4 Burr. 2303.

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works, e.g., the reports of the “Challenger” expedition, the rolls publications, the state trials, the “Board of Trade Journal”; and (7) charts and ordnance maps.

The second treasury minute, that of June 28, 1912 [145] 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.

But the 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, [146] 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, [147] 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

145. Parliamentary Paper, no. 292 of 1912.

146. (1914) Mang. Cop. Cas. 159.

147. Attorney-General for New South Wales v. Butterworth and Co. (Australia) Ltd., [1938] N.S.W.R. 195.

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decision, the 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 king’s printers.

No such 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 [148] 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.

There was 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, [149] 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. [150]  Such an opinion, however, confused subsistence of copyright with infringement of copyright.  Such an abridgement may constitute an original work capable of acquiring copyright, [151] but that is not to say that its publication will escape a charge of infringement. [152]  Whether, there‑

148. 5. 17(1).

149. (1762) 1 Wm. El. 371.

150. 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.

151. Leslie v. Young and Sons, (1894) A.C. 335; Macmillan v. Cooper, (1923) 40 T.L.R. 186.

152. Tinsley v. Lacy, (1863) 1 H. & M. 747; Dickens v. Lee, (1844) 8 Jur. 183.

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fore, 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. [153]  This principle applies, on direct authority, to annotated editions of the statutes. [154]

 

VI. University Copyright

(1) Imperial.  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. [155]  But when, in 1774, in the case of Donaldson v. Becket, [156] 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, [157] 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. [158]

153. Butterworth v. Robinson, (1801) 5 Ves. 709.

154. Attorney-General for New South Wales v. Butterworth and Co. (Australia) Ltd., [1938] N.S.W.R. 195.

155. 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.

156. (1774) 4 Burr. 2408.

157. 15 Geo. III, c. 53.

158. S. 1.

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The privilege 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. [159]  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. [160]  By an act of 1801 [161] 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.” [162]

The Imperial Copyright Act of 1911, [163] 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. [164]

(2) Canadian. 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.

159. S. 3.

160. S. 4.

161. 41 Geo. III, c. 107, s. 3. 1625 and 6 Vic., c. 45, s. 27.

163. S. 33.

164. 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 College, Dublin.

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The 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 [165] 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 [166] to pass a statute relating to copyright. [167]  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, [168] which was held to be in force in Canada [169] 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 [171] was held by the judicial committee not to extend to Canada. [172]  The Fine Arts Copyright Act was not expressed to extend to the Dominions and the sections which provided remedies for infringement [173] referred only to acts in the United Kingdom.  So also, in providing for matters of procedure, [174] 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, [175] was never in force in Canada 176

165. (1877) 1 O.A.R. 436.

166. S. 91(23).

167. 38 Vic., c. 88, continued as R.S.C. 1906, c. 70.

168. 3 Wm. IV, c. 15.

169. Stniies v. Belford, see n. 165.

170. S. 1.

171. 25 and 26 Vic., c. 68.

172. Graves v. Gorrie, [1900-2] 32 O.R. 266; 1 0.L.R. 309; 3 O.L.R. 697; [1903] A.C. 496; see also Black v. Imperial Book Co., [1903] 5 O.L.R. 184; Mansell v. Star Printing and Publishing Co. of Toronto Ltd., [1937] 3 All E.R. 912; Francis Day and Hunter v. Twentieth Century Fox Corporation, [1939] 4 All E.R. 192.

173. Ss. 6-11.

174. S. 9.

175. 45 and 46 Vic., c. 40.

176. Canadian Performing Right Society v. Famous Players Canadian Corporation Ltd., [1927] 60 O.L.R. 280, at p. 290 (per Rose, C.J.).

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When consideration is given to the act of 1775 [177] 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 [178] 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. [179]

It would 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 [180] 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

177. 15 Geo. III, c. 53.

178. 41 Geo. III, c. 107.

179. S. 3.

180. 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 Canada.

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of 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. [181]  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.

Assuming then, 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 [182] 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,

181. Graves v. Gorrie, [1903] A.C. 496.

182. S. 42.

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first 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 [183] 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

183. R.S.C. 1906, c. 70.

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the principle stated in Donaldson v. Becket [184] endured without limitation until publication.  Being entitled to common-law copyright it obtained the substituted right under the 1921 act. [185]  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, [186] 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 1921. [187]

HAROLD G. Fox

School of Law, University of Toronto.

184.(1774) 4 Burr. 2408; see also Mansell v. Valley Printing Co., [1908] 2 Ch. 441, at p. 447.

185. In re Dickens, [1935] 1 Ch. 267, at p. 307.

186. E. W. Savory Ltd. v. World of Golf Ltd., [1914] 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.

187. 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, [1940] 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.

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