Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: uk_1847

Commentary on Foreign Reprints Act 1847

Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on Foreign Reprints Act 1847', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. English literature at English prices

4. Henry Grey and ‘Responsible Government' in the Colonies

5. The Foreign Reprints Act 1847

6. The 1847 Act and Compulsory Licences

7. Routledge v. Low (1868) and the 1847 Act

8. References

1. Full title

Foreign Reprints Act, 1847, 10 & 11 Vict., c.95

2. Abstract

Legislation enabling colonial territories to import unauthorised foreign reprints subject to the payment of an import duty, to be collected for the benefit of British publishers.

The commentary explores the background to the Foreign Reprints Act 1847, and in particular, the differences between the British and colonial markets for literary works, and the introduction of 'responsible government' in the colonies. It also considers the movement in the late 1860s and early 1870s, on the part of the British book trade, to have the legislation repealed, as well as the efforts of the Canadian legislature to replace the import scheme with a system of compulsory licensing, set against the backdrop of increasingly fractious Anglo-Canadian copyright relations. The Canadian demands for compulsory licensing scheme were by and large abandoned, and the 1847 Act remained on the statute books until the passing of the Copyright Act 1911.

3. English literature at English prices

The Copyright Amendment Act 1842, which extended to both the United Kingdom as well as "every part of the British Dominions",[1] made it an offence for anyone to print a protected work without the consent of the owner, or to import or sell the same.[2] The Act also specifically provided that anyone importing or selling a work reprinted in any country or place outside British territory would be guilty of an offence.[3] The Copyright Act was quickly followed by the Customs Act 1842 which included a provision setting out that "all Books wherein the Copyright shall be subsisting, first composed or written or printed in the United Kingdom, and printed or reprinted in any other Country, shall be and the same are hereby absolutely prohibited to be imported into the United Kingdom".[4] This import provision was much farther reaching than that in the copyright legislation, in that it amounted to a total prohibition on all imported works whether for commercial or personal use.[5] Unlike the copyright legislation, however, the Customs Act only operated to prevent such works being imported into the United Kingdom, an oversight that was subsequently remedied in 1845.[6]

As Seville notes, "[t]he decision to exclude all foreign reprints had profound implications for the North American possessions in particular, accustomed as they were to cheap American reprints of British copyright works".[7] Complaints from the colonies, and in particular from Canada, were not long in coming. On 17 October 1843, for example, the Canadian Assembly appointed a Select Committee "to enquire into the effect of the English Copy Right Act, the consequent exclusion of American Reprints, and the policy of that exclusion, as connected with the probable influence on the minds of the rising generation of the Province, to report thereon with all convenient speed, with power to send for persons, papers and records".[8] On 30 April 1845 Lucius Cary (Viscount Falkland) (1803-1884), the Lieutenant Governor of Nova Scotia, wrote to Lord Edward Stanley (1799-1869), then Colonial Secretary, "at the request of the House of Assembly of Nova Scotia" setting out their reasons "for the necessity of a change in the existing law", based upon a Report prepared by a Select Committee of the Assembly upon the law of copyright.[9] The nature of the market in Nova Scotia they explained was considerably different from that in Britain. In the first place, the style of publication of English books tended to inflate their cost such that most publications were beyond the means of the ordinary reading public.[10] For example, books that ordinarily retailed in London for 1l.11s.6d. were readily available in the United States for a fraction of the price (typically 1s.3d.).[11] Second, whereas the high cost of English publications was ameliorated to some extent within Britain by "the wide establishment of circulating libraries, clubs, and reading societies, by which a command of the fresh literature is obtained on cheap and easy terms",[12] such strategies were impractical across the expansive North American territories. The combination, then, of the copyright and customs legislation was "impeding the advancement and refinement of the provincial mind".[13] What was wanted was "a wide dissemination of the cheap and popular literature of the age"; what was proposed was that they should be free to import the cheap American reprints of British works subject to the imposition of an appropriate duty upon the same.[14]

In pressing home its request, the Assembly was undeniably candid. Not only did the availability of cheap American reprints in effect render the copyright regime "nugatory and void", but, they continued:

"[T]he public feeling is against it ... it is regarded as oppressive and impracticable in its provisions, and [we] are satisfied that under present circumstances, no statute, however binding, and no regulations, however stringent, could enforce it, and even if possible to enforce it, that it would prevent the sale of American reprints, but would not extend the sale of English copies beyond the present demand."[15]

Stanley's response was less than encouraging. Acting upon the advice of the Board of Trade, he wrote to Falkland that there could be no expectation that a recommendation would be made "to alter the determination which it has deliberately taken of protecting the authors of this country in their right of property in their own productions". He continued:

"Even if it could be established that English authors have not benefited by the enforcement of the Copyright Laws, it is felt that it would be impossible to sanction a departure from the principle which has been laid down, as it is conceived to be a principle not of expediency but of justice."[16]

In December 1845 William Gladstone (1809-1898), who had been responsible for steering the Customs Act 1842 through Parliament,[17] succeeded Stanley as Secretary of State for the Colonies. Falkland wrote to Gladstone in May 1846 with news of a further Report from the Assembly which, in short, provided "a remonstrance on the decision come to by Lord Stanley". This new Report was as forthright as the previous one:

"[The] practical effect [of the law] is to curtail the sale of reprints; to deprive the people of the blessings of literature whose means render them unable to purchase the costly books issued from the English press; to diminish the revenue, and to encourage smuggling; and while they entail these lamentable evils, their enforcement produce[s] no corresponding benefit to the author."

The majority of the Canadian reading public, it continued, were "unable to enjoy English literature at English prices".[18] Three days before Falkland's letter, William Colebrooke (1787-1870), the Lieutenant Governor of New Brunswick, had also written to Gladstone with the recommendation that "English copyright ought not to extend to these Provinces except in virtue of Provincial Acts by which the high charges on English publications would be abated, which are so much beyond the means of the people".[19] Gladstone wrote to Colebrook that the matter was under consideration, but that it was unlikely the legislation would be amended. At the same time however he encouraged the Board of Trade to impress upon English publishers the nature and extent of the unrest within the colonies as to the operation of the copyright regime:

"Mr Gladstone thinks that the trade should be informed that it is the opinion of Her Majesty's Government that unless vigorous and decided efforts be made by the publishers to meet the views expressed in the annexed passage from the Report of the Committee of the House of Assembly at Halifax [Nova Scotia], the result will be an increase of dissatisfaction on this subject in the North American Provinces, and a diminution of whatever limited benefit the English authors and publishers now derive from the exclusion of the American reprints of English works. Mr. Gladstone desires me to state that, in his opinion, a representation to the trade, couched in pointed and not in qualified terms, would be highly conducive to Colonial interests, and to the interests of the publishers themselves, should it have the effect of inducing them to modify any exclusive views which may still prevail in reference to this important subject."[20]

4. Henry Grey and 'Responsible Government' in the Colonies

Whether Gladstone might have altered his position on the question of copyright in the colonies remains a moot point, for in July 1846 Peel's government was replaced by Lord John Russell's first administration. Henry Labouchere (1798-1869) was appointed President of the Board of Trade, and Lord Henry Grey (1802-1894) took over the reigns at the Colonial Office. Whereas Russell himself, as Colonial Secretary under Melbourne (1779-1848), had previously rejected calls for ‘responsible government' in the colonies,[21] the appointment of Grey was broadly speaking welcomed by those who argued for colonial reform in this regard.[22] One of the first measures Grey introduced enabled the North American colonies, the West Indies, and Mauritius, to repeal the imperial duties imposed upon foreign goods by the previous Tory government,[23] which legislation in Morrell's view "marked the beginning of a new system, in which the whole power of enacting colonial tariffs was left to the legislatures of the colonies, checked by the disallowing power of the Crown".[24] Four months later, in December 1846, Grey wrote to John Harvey (1778-1852), the new Lieutenant Governor for Nova Scotia, in the following terms: "It cannot be too distinctly acknowledged, that it is neither possible nor desirable to carry on the government of any of the provinces of British North America in opposition to the opinion of its inhabitants".[25]

In line with Grey's general policy, Harvey, after the electoral victory of the law reformers in Nova Scotia in late 1847, called them to office on 28 January 1848; this, as McInnis notes, amounted to "the formal inauguration of responsible government in the British colonies".[26] This is not to say, however, that Grey was in favour of ceding all control over colonial legislation. Rather, as was the case with the statute concerning the duty on foreign goods, he advocated that a veto should always be retained to be exercised, judiciously, whenever local colonial policy and British imperial interests came into conflict. This was, in effect, the solution which the Colonial Office and the Board of Trade adopted in relation to the colonists calls for an amendment to the copyright regime.

On 26 August, two days before Grey's customs legislation received the Royal Assent, Benjamin Hawes (1797-1862), under-secretary for the colonies, wrote to the Board of Trade on Grey's behalf, to enquire whether anything had come of Gladstone's suggestion that the Board inform the "principal publishers in London" of the discontent in the North American colonies. Stafford Henry Northcote (1818-1887), legal assistant at the Board of Trade (and Gladstone's private secretary), replied on 19 October in the following terms:

"My Lords are fully alive to the force of the considerations which have more than once been pressed upon the Home Government by the Legislature of Nova Scotia, as tending to show the injurious effect produced upon our more distant colonists by the operation of the Imperial law of copyright; and they are extremely desirous to adopt any measures consistent with justice which may place the literature of this country within the reach of its dependencies on easier terms than at present. With this view my Lords have attentively considered the possibility of modifying the Imperial law in such a manner as to meet the just demands of the colonists without sacrificing the rights of the author; but they have found it extremely difficult to decide upon any arrangement which might reasonably be expected to accomplish both these objects."[27]

Their recommendation then, in line with the general tenure of the Whig's colonial policy, as fashioned by Grey, was to invite the colonies to frame for themselves "such regulations as they may deem proper for securing at once the rights of authors and the interests of the public"; what legislation the colonies might enact, of course, would not come into effect "until so confirmed and finally enacted by the Queen in Council".[28] Grey, not surprisingly, was in agreement with the Board's proposal.[29] On 5 November 1846 he dispatched a circular to the governors of the North American colonies informing them that the government was disposed to bring forward legislation which would, he hoped, "remove the dissatisfaction which has been expressed on this subject, and place the literature of this country within the reach of the Colonies on easier terms than it is at present".[30]

5. The Foreign Reprints Act 1847

On 1 July 1847 leave was given to bring in the Foreign Reprints Act which was subsequently presented by Thomas Milner Gibson (1806-1884), then vice-president of the Board of Trade, and John Parker (1799-1881), joint secretary of the Treasury. The Bill passed through both the Commons and the Lords, with minimal amendment, in less than three weeks, and received the Royal Assent on 22 July.[31] As Barnes notes, "[e]ven with Government backing it is hard to imagine a Bill making its way through the legislature with greater ease and speed. Clearly, few of the Members gave much thought to it, and there was virtually no time for outside forces to mobilize any opposition".[32] It seems that there was little time for the London book trade to mobilize against the proposed legislation. Thomas Longman (1804-1879) and John Murray (1808-1892), in a letter to Gladstone in March 1870, even suggested that the book trade were by and large unaware of its existence. The legislation, they observed "appears to have escaped all notice in its quiet passage through both Houses. No trace of any debate upon it is to be found. The Act took British authors and publishers equally by surprise, as they knew nothing of the measure until it became law".[33]

This claim that the publishing industry knew nothing of the Bill before it became law has to be treated with some caution. The Athenæum, for example, on 10 July 1847, carried a short notice about the proposed legislation, setting out its basic intent and provisions,[34] and it seems unlikely that this would have escaped the industry's attentions. It seems more likely that the British publishers, in the first instance at least, either welcomed, or at the very least, were indifferent, to the new Act. If indeed the cost of British books was "so high" that it amounted to "a prohibition" upon the export of the same throughout the empire,[35] then, any scheme by which money could be realised from the colonies might be worth consideration. Again, the Athenæum, on 18 December 1847, were "glad to report" that Nova Scotia and New Brunswick had both passed legislation imposing a duty of 20 per cent on the importation of unauthorised foreign reprints, the proceeds of which were to be "remitted for the benefit of the parties entitled to copyright at home". The commentator continued: "This is also an ingenious principle of re-adjustment, by which the piracy itself is rendered beneficial in the right direction - the parties pirated on being made sharers in a new field of profit".[36]

Nova Scotia and New Brunswick were followed by Edward Island in May 1848, by Newfoundland in April 1849, and by Canada in August 1850.[37] Other colonial territories also followed suit: Barbados, Bermuda and the Bahamas; St Christopher, Antigua, and St Lucia; British Guiana, Trinadad and Tobago, and Natal; Mauritius and the Cape of Good Hope.[38] Of note, however, was the fact that none of the Australian colonies took up the opportunity of doing the same. The writer William Howitt (1792-1879) provides something of an explanation for this in his letter to the Athenæum written on his return from Australia in late 1854:

"Everywhere that I have been, in Victoria, New South Wales and Van Diemen's Land, American reprints abound. I have never seen or heard of any attempt on the part of Custom-House officers to prevent their introduction. No revenue officer ever asked me at any port to show my luggage; and I have seen scores of Americans come in and pass with the same impunity. In fact, all these Colonies consider it their interest to admit freely as many cheap books as possible; and when inclined to wink, who or what shall make them open their eyes?"[39]

Howitt's complaints about the lack of copyright enforcement in Australia were published in January 1855. Two months later, William Chambers (1800-1883), the Edinburgh-based publisher, wrote to the Athenæum, not about the Australian situation, but about the ineffective nature of the arrangements under the Foreign Reprints Act. In both Canada and Nova Scotia, he suggested, the collection of duties on imported reprints was nothing more than a "sham". He continued: "In a letter I have just received from Halifax, NS, it is stated that since 1847, not more than the sum of 10l. has been so collected - that, in fact, the colonial Acts on this point are a dead letter".[40] Given the 3,000-mile border which America shared with Canada, it was perhaps inevitable that the scheme would prove unenforceable and largely ineffective with little duty revenue ever making its way back to Britain.

In 1856, when the first official returns on the operation of the 1847 Act became available, it was clear that the scheme held out little promise of financial reward for British copyright owners. Not surprisingly, it was at this point that the book trade began to call into question the usefulness and appropriateness of the legislation. In 1857, in addition to complaining about the "paltry sums" which the scheme implemented under the 1847 Act had produced, the Publishers' Circular also suggested that "[t]he permission to import prohibited books on any such terms" was "unjust and contrary to all the principles of Commercial Legislation"; moreover, rather than benefit "Colonial trade", the legislation only "encourages the reprinters of the United States, and retards the subject of International Copyright".[41] Just over ten years later, in 1869 George Shaw-Lefevre (1831-1928), secretary of the Board of Trade, assessed the operation of the duty system under the 1847 legislation as "a complete failure". He continued: "the Colonists collect next to nothing for the British author, and are supplied with United States reprints, which are smuggled across the border without paying duty".[42] In 1878, the Report of the Royal Commission on Copyright shared Shaw-Lefevre's opinion. The Act had resulted in "no returns, or returns of an absurdly small amount" for British authors and copyright owners.[43]

6. The 1847 Act and Compulsory Licences

Despite that the British publishers' backlash against the legislation began in 1857, nevertheless, little action was taken on the part of the book trade until the late 1860s. The catalyst was the passage of the British North America Act 1867,[44] and the establishment of Canada as a self-governing dominion; this gave rise to a re-examination of the virtues of the Foreign Reprints Act against the backdrop of increasingly fractious Anglo-Canadian copyright relations.

When the first Canadian Copyright Act was passed in 1868,[45] it was, in essence, a restatement of the scheme devised under the 1847 Act.[46] Whereas the 1847 statute had originally been implemented to meet the needs of the colonial reader, however, the manner in which it operated opened the door for other arguments concerning the interests of colonial printers and publishers. In 1860, a commentator in The Jurist first drew attention to the same when, in offering a critique of the legislation, he observed that:

"The measure is injurious to the interests of the colonies as well as of British authors. It is confined to foreign reprints, and does not authorise the reprinting of copyright works within the favoured colony, or within any other colony. If it operates at all, it must therefore operate to give a monopoly within the colony to foreign paper makers, printers, and publishers - to discourage native industry and enterprise at the expense of British authors."[47]

Not only did the Act fail to properly benefit British copyright owners, it also impacted detrimentally upon the local publishing industry in the colonies, and particularly in Canada. This point was taken up by the Canadian Senate when it sent the new Copyright Act 1868 to the Governor General for approval,[48] in that it took the opportunity to "impress upon Her Majesty's Government the justice and expediency" of extending the benefit of the 1847 legislation to "colonial reprints".[49] That is, they proposed that the provisions of the 1847 Act should be extended to allow Canadian publishers to reprint British works upon payment of an appropriate duty, or, in other words, that a system of compulsory licensing be introduced.

John Rose (1820-1888), the Canadian Minister of Finance, followed up the Senate's proposal in a letter to the Colonial Office on 1 July 1868. There were, he considered, good reasons for supporting the introduction of such a scheme. In the first place, it would provide British copyright owners with a more reliable income stream from Canada than was the case under the 1847 Act. In addition, he continued: "[T]he whole of the Canadian public would not only be supplied by Canadian publishers, but a large portion of the issue would find its way to the United States, owing to the superior facilities and cheapness of publishing in Canada".[50] The Colonial Office forwarded Rose's letter to the Board of Trade for consideration. The response, signed by none other than Louis Mallet (1823-1890),[51] was less than encouraging.

The British government was reluctant to introduce the kind of licensing scheme being proposed. One of the Board's main objections was that the introduction of such a scheme might jeopardise current negotiations with the United States about the possibility of an Anglo-American copyright treaty.[52] The second concerned a broader point about the principle upon which the imperial (and colonial) copyright regime was based. The 1847 Act was, Mallet wrote, "of an exceptional and provisional character, and one which could not, without seriously compromising the principles of copyright, both municipal and international, be made the foundation of future Colonial legislation". He continued:

"[W]hile the public policy of the mother country enforces an absolute monopoly in works of literature for a term of years, it is very undesirable to admit in British Colonial Possessions an arrangement, which whatever advantages it may possess (and my Lords fully admit that much may be said in its favour) rests upon a wholly different principle."[53]

Rose rejected both arguments. As to the first, he suggested that any privilege accorded to the Canadian publishers should be "provisional and temporary", designed to terminate on the conclusion of any copyright treaty between the two nations. Moreover, that a royalty scheme might see the Canadian printing industry beginning to undercut and undermine the existing American trade in unauthorised reprints, would, he suggested, operate to expedite the successful conclusion of a treaty rather than hinder the same. As to the second, he acknowledged that the principle behind a royalty system was "at variance with the general policy of the Mother Country". He considered however that the very need for such a scheme arose out of the circumstances set in place by the 1847 Act itself, which legislation itself represented "a previous departure from this theoretical policy", but one which also afforded "a premium to the interests of a foreign country" as well as discriminating "against those of an important part of the British Dominions". Rose concluded his rebuttal as follows:

"[D]uring the last few months the present subject has been very largely discussed in the leading journals of Canada as well as at public meetings. The public sentiment throughout the country is, that the privilege asked for is fair and reasonable in itself, and that the granting of it would not only promote the interests of English authors but give an impetus to the publishing and printing trade, and other cognate branches of Canadian industry, and would be calculated to increase the circulation in Canada of the best British works, and to foster literary tastes, and develop the literary talents, of the Canadian people."[54]

The Board however remained unconvinced. In July 1869 they decided against any "immediate adoption of the Canadian proposal", reiterating that "it is impossible to make any complete or satisfactory arrangement with the Canada unless the United States are also parties to it".[55]

7. Routledge v. Low (1868) and the 1847 Act

In the late 1860s the poor state of diplomatic relations between Britain and Canada was largely due to the reluctance of the British government to sanction the introduction of the kind of royalty scheme for which Rose had been lobbying. The decision of the House of Lords in Routledge v. Low (1868), however, served to exacerbate the situation.[56] In Routledge, the Lords decided that, while the Copyright Amendment Act 1842 secured copyright protection throughout the empire for works first published in Britain, by contrast, books first published in a British colony received no comparable protection in Britain or in any of its other territories; rather, they were left with such protection as might be afforded under the local copyright laws. About the decision the Athenæum wrote as follows:

"The result of this opinion of the House of Lords is very disastrous, and justly creates great dissatisfaction in the Colonies and India; it has either destroyed all copyright property in the numerous works which, since 1842, have been first published there, or rendered such property comparatively worthless; and this hardship is increased by the fact that, since 1842, it has been and still is compulsory upon all publishers in the British dominions gratuitously to send one copy of every book published by them to the British Museum, and four to the Libraries of Oxford, Cambridge, &c."[57]

On this point alone, all colonial authors and publishers had every reason to feel aggrieved. However, the impact of the decision upon the Canadian provinces carried a double blow, in that the Lords also decided that, if an American author was resident in Canada (or indeed in any other part of the British Empire) when they first published their work in Britain then he or she would enjoy the full protection of the 1842 Act.[58] From a Canadian perspective, in providing American (and other foreign) authors with a mechanism for ensuring protection of their works throughout the British Empire, Routledge removed the need for the Americans to engage in any meaningful discussions with Britain about a possible copyright treaty.[59] Moreover, given that the British government seemed reluctant to de-couple the resolution of the copyright question in both Canada and the United States, if the Americans were no longer interested in negotiating a treaty with the British, then the issue of Anglo-Canadian copyright relations would remain unresolved.

Against this backdrop, twenty-three years after it had first been passed, the British publishers began to mobilise against the Foreign Reprints Act. On 16 March, a meeting was organised for "a number of authors and gentlemen interested in literary property",[60] chaired by Lord Stanhope (1805-1875) who, of course, had been instrumental in securing the passage of the Copyright Amendment Act 1842.[61] Following that meeting the publishers Thomas Longman and John Murray wrote to Gladstone, now the Prime Minister, seeking the "prompt repeal" of the 1847 Act which, they asserted, had caused "serious damage" to British authors and publishers, as well as "the various trades, such as printers, paper-makers, type-founders, and others employed in the manufacture and sale of copies of books first published in the United Kingdom". The practical effect of the legislation, they argued, was "to throw the trade of reprinting British copyright works, or foreign reprints, into the hands of the United States publishers", as a result of which the Act had "consequently operated as a large premium to the United States not to enter into an international copyright convention with England".[62] In addition, they sought to "call the attention of Mr. Gladstone to the unexpected and unjust position in which all British colonial authors and publishers are placed by the decision of the House of Lords in Low v. Routledge, upon the Copyright Amendment Act, 1842, as to works first published in any part of the British Dominions not included in the United Kingdom".[63]

In fact, a Bill had already been drafted with the aim of addressing the impact of Routledge upon those authors who first published in the colonies. The Board of Trade, however, in response to Longman and Murray's letter sought to link the passage of that Bill with the repeal of the 1847 Act. Canada, naturally, was likely to object to this course of action; however, from the Board's perspective, if, as a result of the proposed legislation "Canada will therefore obtain all the advantages of Imperial copyright, it is only right that she should accept its restrictions".[64] Here then, was the quid pro quo: copyright protection throughout the Empire for those publishing in the colonies, in exchange for the repeal of the 1847 Act. The Board wrote to Granville (1815-1891), at the Colonial Office, to ascertain how the colonies, and in particular Canada, might respond. Granville sent a copy of the Bill to each of the colonial governors to ask for their observations on the same, and to request that they report upon whether "in view of the benefits intended to be conferred upon British Colonial authors and publishers by the proposed Bill, any objection will be offered in the Colony ... to the proposed repeal of the Act of 1847".[65]

Not surprisingly, Canada did object.[66] Francis Hincks (1807-1885), who in October 1869 had replaced John Rose as the Canadian Minister of Finance, responded that "very strong objections will be made by the people of the Dominion of Canada to the repeal of the Act in question", and recommended to the British government that the matter be dropped for the current parliamentary session.[67] The Canadian Privy Council, endorsing Hincks' view, wrote that "it is highly inexpedient that legislation should take place during the present Session of the Imperial Parliament, and without full opportunity being given to the Canadian Government to consider the whole subject".[68] Later that year, in December 1870, the Canadian government did forward their views on the copyright question to the Colonial Office, in the form of a memorandum signed by Hincks and Christopher Dunkin (1812-1881), the Canadian Minister of Agriculture. The tone of the memorandum was certainly bullish:

"[T]here is no probability of the Dominion Parliament consenting to any measure for enforcing British copyright in Canada, unless it provides for local publication; and ... while the Canadian Government will be ready to introduce a measure that will be of great advantage to British authors, they must, in reference to foreign reprints, have regard to the interests of Canadian as well as of British publishers."

What they proposed was that the duty on foreign reprints be "materially increased", that steps be taken to improve the enforcement of the same, and "unless British copyright works should be published concurrently in Canada, licensed Canadian publishers should be allowed to publish, paying, for the benefit of the author or owner of the English copyright, an Excise duty, which could be collected by means of stamps as easily as other duties of a similar kind".[69] In short, the Privy Council reiterated the desirability of a system of compulsory licensing.

Throughout the next two years, relations between the two countries deteriorated further still. The Canadian proposals were clearly unacceptable to the British publishers. "[I]t would be highly imprudent" they argued "to agree to a measure that would completely take from the author or the owner of Copyright the control of every book, on terms to which his consent is neither asked nor required. Such a forced surrender would be a private wrong and a public injury".[70] Having received no response to their memorandum of December 1870, the Canadian government brought matters to a head in June 1872 when they passed the Canadian Copyright Act 1872 which allowed for the publication in Canada of all British copyright works by licence of the Governor General of Canada. That is, the Canadians decided to introduce their own system of compulsory licensing. In accordance with the provisions of the British North America Act 1867, the Canadian Act required the assent of the Imperial Parliament; predictably, this was refused.

A compromise position was eventually negotiated however with the passing of the Copyright Act 1875 in Canada,[71] and the Canadian Copyright Act 1875 in Britain.[72] The combined intent of these two measures was to encourage the production of authorised, but affordable, Canadian editions of British works for the Canadian market, which editions, it was hoped, would supplant the existing demand for unauthorised American reprints within that market, while at the same time protecting the British publishers against an influx of these cheaper authorised Canadian reprints.[73] Moreover, the original proposal that Canadian publishers should be free to reproduce British works upon the payment of a fixed duty was by and large abandoned, in that it was retained within the Canadian legislation only for works that were out of print, and only upon the licence of the Canadian Minister of Agriculture.[74] This new arrangement seemed to enjoy some degree of success. For example, when Thomas Farrer (1819-1899), the permanent secretary to the Board of Trade, gave evidence before the Royal Commission on Copyright in January 1877, he explained that, since the legislation had been passed, thirty-one works by British authors had been published in Canada, with the author's consent. Not only were these Canadian imprints considerably cheaper that the original British editions, but they also appeared to have supplanted the market for unauthorised American reprints of the same.[75] The bespoke nature of this arrangement however meant that the issues concerning the position of the colonial author under the Routledge decision, as well as the place of the Foreign Reprints Act within both the Imperial-Colonial copyright regime and Anglo-American copyright relations, were left outstanding. The former would not be addressed until the enactment of the International Copyright Act 1886,[76] and the 1847 Act would remain on the statute books until the passing of the Copyright Act 1911.[77]

8. References

Government papers and legislation

Foreign Reprints Act, 1847, 10 & 11 Vict., c.95

Copyright Amendment Act, 1842, 5 & 6 Vict., c.45

Customs Act, 1842, 5 & 6 Vict., c.47

Customs Act, 1845, 8 & 9 Vict., c.93

An Act to enable the Legislatures of certain British Possessions to reduce or repeal certain Duties of Customs, 1846, 9 & 10 Vict. c.94

British North America Act, 1867, 30 & 31 Vict., c.3

Copyright Act, 1868, 31 Vict., c.54 (Canada)

Copyright Act, 1875, 38 Vict. c.88 (Canada)

Canadian Copyright Act, 1875, 38 & 39 Vict. c.53

Correspondence and Papers on the Colonial Copyright Act 1847, 1872, Paper No.339, xliii, 277

Return of Colonies and British Possessions in favour of which Orders in Council have been issued suspending Prohibition of Importation of Reprints of British Copyright Works, 1857, Session II, Paper No.303, xxviii, 113

Report of the Royal Commission on Copyright, 1878, xxiv, C.2036

Cases

Routledge v. Low (1868) 3 LTR 100

Low v. Ward (1868) 6 LR (Eq) 415

Books and articles

Daldy, F.R., The Colonial Copyright Acts (London: Longmans & Co., 1889)

McInnis, E., Canada, A Political & Social History, 4^th ed. (Toronto: Holt, Rinehart and Winston, 1982)

Morrell, W.P., British Colonial Policy in the Age of Peel and Russell (Oxford: Clarendon Press, 1930)

Nowell-Smith, S., International Copyright Law and the Publisher in the reign of Queen Victoria (Oxford: Clarendon Press, 1968)

Seville, C., The Internationalisation of Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (Cambridge: Cambridge University Press, 2006)

Ward, J.M., Colonial Self-Government, The British Experience 1759-1856 (London: MacMillan, 1976)

[1] Copyright Amendment Act, 1842, 5 & 6 Vict., c.45, s.29.

[2] Ibid., s.15.

[3] Ibid., s.17. This provision, which had its origin in customs legislation dating from 1794, only extended to works first composed, written, or printed and published within the United Kingdom; for further discussion, see: uk_1844.

[4] Customs Act, 1842, 5 & 6 Vict., c.47, s.24. The Act also incorporated a new section designed to facilitate the enforcement of the ban on importing protected works by requiring the proprietors thereof to give notice in writing to the Customs Commissioners as to which works were copyright protected and for how long; ibid., s.25.

[5] For an account of the way in which this new provision impacted upon individual travellers see Barnes, 110-12.

[6] The Customs Act, 1845, 8 & 9 Vict., c.93, s.9, prevented the importation [of copyright protected works] "into the British Possessions abroad"; s.9.

[7] C. Seville, The Internationalisation of Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (Cambridge: Cambridge University Press, 2006), 80.

[8] E. Nish, ed., Debates of the Legislative Assembly of the United Canada, 1841-1867, 3 (1843): 319.

[9] Correspondence and Papers on the Colonial Copyright Act 1847 (1872), Paper No.339, XLIII, 277, 1.

[10] The Report noted that: "[T]he style of publication, the printing, types, and binding are suited to a more aristocratic taste and a richer people than exist here. That their prices, including of course a suitable compensation to the author, come far beyond the means of our population, and hence if our sources of literature were confined to them, the mass of the people would in fact be entirely deprived of the productions of the English press"; ibid., 2.

[11] Ibid., 4.

[12] Ibid., 2.

[13] Ibid., 1. Although the Select Committee Report did not refer explicitly to the customs legislation it seems clear that they had it in mind: "[U]nder the regulations of the present law all books prohibited to be imported into the United Kingdom are prohibited here. These restrictions extend to all books in which the rights of the author, as secured by the law of copyright, now exist. If any reprint of these works, although contained in the trunk of a traveller, and imported from a foreign country even for his own use, were seized by an officer of the Customs, the instructions are to destroy it"; ibid., 2 (emphasis added).

[14] It was suggested that "the Imperial Act may be modified as to permit the importation here of American reprints of all English works on the payment of a protecting duty, say to the extent of 25 to 30 per cent. if in pamphlet shape, and 15 to 20 per cent. if in volumes bound"; ibid., 3.

[15] Ibid., 2.

[16] Ibid., 7-8.

[17] See: uk_1844.

[18] Correspondence and Papers, 9.

[19] Ibid., 8.

[20] Ibid., 10.

[21] See for example, E. McInnis, Canada, A Political & Social History, 4^th ed. (Toronto: Holt, Rinehart and Winston, 1982), 271-72.

[22] W.P. Morrell, British Colonial Policy in the Age of Peel and Russell (Oxford: Clarendon Press, 1930), 461-71.

[23] An Act to enable the Legislatures of certain British Possessions to reduce or repeal certain Duties of Customs, 1846, 9 & 10 Vict. c.94.

[24] Morrell, 217.

[25] Quoted in McInnis, 278.

[26] Ibid., 279; see also J.M. Ward, Colonial Self-Government, The British Experience 1759-1856 (London: MacMillan, 1976), 247-90.

[27] Correspondence and Papers, 12.

[28] Ibid., 12-13.

[29] Colonial Office to Board of Trade, 30 Oct. 1846; ibid., 13.

[30] Ibid.

[31] Journal of the House of Commons (CJ) 102: 778, 807, 813, 847, 862, 864, 868, 874, 931, 951.

[32] Barnes, 148.

[33] Correspondence and Papers, 46.

[34] The Athenæum, 10 July 1847, 735.

[35] The Athenæum, 2 Sept. 1843, 795.

[36] The Athenæum, 18 Dec. 1847, 1304.

[37] Seville, 86-87.

[38] See: Return of Colonies and British Possessions in favour of which Orders in Council have been issued suspending Prohibition of Importation of Reprints of British Copyright Works (1857), Session II, Paper No.303, xxviii, 113. Other colonies to enact legislation were: St Vincent, Grenada, Jamaica, and Nevis. See also: F.R. Daldy, The Colonial Copyright Acts (London: Longmans & Co., 1889).

[39] The Athenæum, 13 Jan. 1855, 51.

[40] The Athenæum, 17 March 1855, 324.

[41] The Publishers' Circular, 15 Sept. 1857, 393-94.

[42] Board of Trade to Colonial Office, 27 July 1869, in Correspondence and Papers, 27.

[43] Report of the Royal Commission on Copyright (1878) xxiv, C.2036, xxxi (see: uk_1878). The Report estimated that "during the ten years ending in 1876, the amount received from the whole of the 19 colonies which have taken advantage of the Act was only 1,155l. 13s. 2½d., of which 1,084l. 13s. 3½d. was received from Canada; and that of these colonies, seven paid nothing whatsoever to the authors, while six now and then paid small sums amounting to a few shillings"; ibid.

[44] British North America Act, 1867, 30 & 31 Vict., c.3.

[45] Copyright Act, 1868, 31 Vict., c.54.

[46] For details see: Correspondence and Papers, 16-17.

[47] The Jurist, 11 Feb. 1860, 45.

[48] The British North America Act, 1867, delegated the function of the Crown to assent to enactments of the Dominion parliament to the Canadian Governor General, who could withhold his assent, or reserve for the consideration of Westminster, any proposed measure that was considered to conflict with Imperial legislation.

[49] Ibid., 16.

[50] John Rose to the Colonial Office, 1 July 1868, in Correspondence and Papers, 17.

[51] See: uk_1878.

[52] Mallet set out the nature of the problem as follows: "If such a Treaty should be concluded, its main stipulation would doubtless be the reciprocal extension to the authors of both countries of the prohibition afforded by their respective laws, in which case British authors would enjoy, in the United States, the absolute monopoly given to American authors during the existence of their copyright". He continued: "If under such circumstances Canadian publishers were enabled to reprint the works of British authors on payment of 12½ per cent., it is probable that a contraband trade would spring up across the United States frontier, and that they would be enable d to undersell the works of such authors legally circulating in those States; a consideration which can hardly fail to operate in deterring the United States Government from concluding a Treaty with this country". Correspondence and Papers, 22.

[53] Ibid.

[54] John Rose, "Copyright Law in Canada", 30 March 1869, ibid., 36-37.

[55] Board of Trade to Colonial Office, 27 July 1869, ibid., 29.

[56] Routledge v. Low (1868) 3 LTR 100.

[57] The Athenaeum, 20 Nov. 1869, quoted in S. Nowell-Smith, International Copyright Law and the Publisher in the reign of Queen Victoria (Oxford: Clarendon Press, 1968), 87.

[58] This principle was affirmed two months later in Low v. Ward (1868) 6 LR (Eq) 415.

[59] As Rose put it: "[A]fter the decision in Routledge and Law, American authors have no interest in international copyright, so far as England is concerned. They have only to cross the St. Lawrence for a day, and publish in London, and they will have a copyright throughout the British Empire"; Correspondence and Papers, 29.

[60] Those present included: the lawyer Roberton Blaine; the writers, William Smith (1809-1872), Arthur Helps (1813-1875), Anthony Trollope (1815-1882), Henry Reeve (1813-1895), and Charles Dickens (1812-1870); and a number of publishers including George Bentley (1828-1895), Frederick Chapman, Frederick Richard Daldy, Alexander MacMillan (1818-1896), John Murray, James Ferguson and Thomas Longman.

[61] See: uk_1842.

[62] Thomas Longman and John Murray to W.E. Gladstone, 29 March 1870, in Correspondence and Papers, 46. The British publishers reiterated this argument in a Memoranda on International and Colonial Copyright, prepared on behalf of the Copyright Association in March 1872: "The pernicious Act of 1847, admitting American reprints of our English copyright books into Canada, has indirectly done much to retard the establishing of international copyright with America, by giving a larger field of operation to American reprinters, and thus giving additional reason for withholding what is equitably due to English authors"; ibid., 71.

[63] Ibid., 47.

[64] Board of Trade to Colonial Office, 25 April 1870, ibid., 45.

[65] The Earl of Granville to the Governors of certain Colonies, 2 June 1870, ibid., 50.

[66] So too, however, did Barbados and Bermuda; see in ibid., 53, 54.

[67] Sir John Young to Earl Granville, 6 July 1870, in ibid., 50.

[68] Ibid., 51.

[69] Ibid., 58.

[70] Memoranda on International and Colonial Copyright, March 1872, ibid., 76.

[71] Copyright Act, 1875, 38 Vict. c.88.

[72] Canadian Copyright Act, 1875, 38 & 39 Vict. c.53. For an account of the negotiations leading to the passing of both these Acts, see: Seville 103-109.

[73] For the details of the way in which the legislation operated see Seville, 106-109.

[74] Copyright Act, 1875, s.22 provided as follows: "Should a work copyrighted in Canada become out of print, a complaint may be lodged by any person with the Minister of Agriculture, who, on the fact being ascertained to his satisfaction, shall notify the copyright owner of the complaint and of the fact; and if, within a reasonable time, no remedy is applied by such owner, the Minister of Agriculture may grant a license to any person to publish a new edition or to import the work, specifying the number of copies and the royalty to be paid on each to the copyright owner".

[75] Report of the Royal Commission on Copyright: Minutes of Evidence, 208.

[76] See: uk_1886.

[77] Copyright Act, 1911, c.46, s.36, Second Schedule.