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Typo: A Monthly Newspaper and Literary Review, Volume 3

Colonial Copyright

page 123

Colonial Copyright.

An important copyright case was heard in the Supreme Court in banco in Dunedin, on the 2nd October, before Mr Justice Williams, when Messrs Stone & Sons, publishers, applied for an order to restrain Chas. W. White from printing, publishing, selling, distributing, or otherwise disposing of any copy or copies of The Strangers' Vade Mecum, containing parts copied or taken from Stone's Otago and Southland A B C Monthly Guide and Diary. Plaintiffs were represented by Sir Robert Stout; defendants by Mr W. D. Stewart. The defence was in effect that the Strangers' Vade Mecum was not printed for sale, but for gratuitous distribution to Exhibition visitors; that part of the information was not supplied to the printer by defendant, but by the Secretary of the Exhibition; and that other works in the Colony contained very similar information. The matter was argued by counsel, Sir R. Stout contending that the three points did not touch the question of infringement, but practically admitted plaintiff's charges.

His Honor, in giving judgment, said: This case raises the interesting question as to whether the International Copyright Act, 1886, of the Imperial Parliament, repeals by implication our copyright ordinance of 1842. The question has to be determined mainly upon the eight section of the Imperial act. The first sub-section of that section provides that the copyright acts shall, subject to the provisions of this act, apply to literary or artistic work first produced in the British dominions, in like manner as they apply to work first produced in the United Kingdom; and then follows a provision that if there is an enactment in any particular colony as to registration of copyright, it shall not be necessary to register the work sought to be protected at Stationers' Company in London, nor is it to be necessary to give a copy of the work to the British Museum and sundry other institutions in Great Britain. We have therefore this, that after the act of 1886 the various British copyright acts have become law in New Zealand, amongst them is the 5 and 6 Victoria, chapter 15. Any person, therefore, who publishes a work in New Zealand is now entitled to copyright under the act of 5 and 6 Victoria, chapter 45, and the copyright endures for the natural life of the author, and for a further term of seven years, but if the term of seven years shall expire before the end of the 42nd year from the first publication of such book, the copyright shall in that case endure for such period of 42 years; so that now in New Zealand any author publishing a work has by virtue of the Imperial Statute a copyright practically for the term of 42 years. He cannot, however, under the statute, bring any action in respect of the copyright, unless he registers it either in the colony (if there is provision for registration there) or at Stationers' Hall in London, if there is no such provision in the colony. In New Zealand there is no such provision, and therefore to obtain the benefit of the act it is necessary for him to register his work in London. Our local ordinance of 1842 gives the author of any book which shall thereafter be printed and published the sole liberty of reprinting the book for the term of 28 years from the first day of publishing the same, and also, in the event of his living after that period, for the residue of his natural life. The effect, therefore, of the Imperial act is to give in New Zealand a much longer term of protection than authors previously had, and also to give what the New Zealand ordinance did not and could not give—protection throughout the British dominions for the same period. The New Zealand ordinance did not require before a person could sue in respect of the infringement of copyright any registration whatever. The question therefore is whether the greater right granted by the Imperial act necessarily supersedes the lesser right given by the local ordinance. Whether it does so or not must be determined upon the construction of §8 of the Imperial act of 1886. It is plain, that if possible, the two rights should co-exist, and that being so, we have to look at the section to see if there is any indication of the intention of the Imperial Legislature that they should exist together, or that they should not. I was at first inclined to think that §8 of the Imperial act of 1886 superseded our local ordinance, but on consideration I am tolerably satisfied that that is not so. The first sub-section of §8 of the act of 1886 implies that there may be at the time of the passing of the act a copyright law in force in any colony providing for the registration of copyright, and paragraph A of sub-section 1 shows that at any rate it is not intended to repeal such law. I think, however, that it is to sub-section 3 of §8 that we must principally look to see what the real intention of the Legislature was. That sub-section says, « that where before the passing of this act, an act or ordinance has been passed in any British possession respecting copyright in any literary or artistic work, her Majesty-in-Council may make an order modifying the Copyright Act and this act, so far as they apply to such British possession, and to literary and artistic works first produced therein, in such manner as to her Majesty-in-Council seems expedient. » The meaning of that section is this—that if at the time of the passing of the act of 1886 there were in any colony local provisions as to copyright, and the act of 1886 had incidentally the effect of giving the larger protection, the Queen might modify the Imperial act to bring it into consonance with the local acts. Thus in our own case the local Legislature has declared it sufficient protection for an author to have copyright for a term of 28 years only, or for life if he should live more than 28 years after the book is first published. The Imperial Copyright Act gives a larger measure of protection, and it would be open under this section for the Queen if she thought fit, so far as works published in New Zealand are concerned, to extend the protection given by the Imperial law within the limits prescribed by the colonial Legislature. The sub-section plainly assumes that if there is a conflict as to the provisions of the local act and the general act, so far as works published in the locality are concerned, it is competent for the Crown to assimilate the general law to the local law. That implies, of course, that the local law stands unrepealed. Fourth sub-section of §8 assists this contention, because it declares that the local Legislature, notwithstanding the Imperial act, shall have power, so far as local publication is concerned, to pass in future any ordinance they please. I think therefore that the plaintiff has a right to come and sue under the New Zealand ordinance, though he has not registered his work as he would be bound to do if he relied on any right which the Imperial act could give him. With respect to the merits of the case, I am quite satisfied of this: that the plaintiff has expended labor and pains in compiling from original sources the information which he has published. That, I think, looking at the principle of the case, is sufficient to give him the right to have his labor protected. I am equally satisfied of this: that the defendant, or some person identified with the defendant, has taken as the basis of his railway guide time table the compilation of the plaintiff; that he has copied it in substance, has cut out portions of it and has added some trifling additions of his own; but that there has been a substantial copying, mistakes included, I think there can be no question. The only point upon which I have any serious doubt is whether, looking at the terms of the second section of the New Zealand ordinance, the defendant has brought himself within it; whether, in short, the defendant has wrongfully published a book which plaintiff has previously published. The protection given by the New Zealand ordinance is of a very limited description, and is by no means the protection which is given by the Imperial act. On the whole, however, looking at the decision of Mr Justice Richmond, who granted the injunction in Wise and Caffin v. Wright, where parts only were taken, and looking also at the fact that the really substantial and original part of the plaintiff's publication is the « A B C Guide, » I am inclined to to think that the substantial part is a book within the meaning of the ordinance. It has been suggested that an injunction ought not to go because this is an ephemeral pubcation [sic: publication] . It is however, stated in Slater, page 195, « that where a defendant pirates a work and offers it for sale at a greatly reduced price, he will be restrained even though that work is wholly of an ephemeral nature » In the present case the production complained of is given away, so that there is no reason why it should not be restrained. The injunction will therefore be granted.