Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: uk_1852

Commentary on International Copyright Act 1852

Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on International Copyright Act 1852', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. The International Copyright Act 1852

4. Problems with the Translation Right, and the introduction of Permitted Acts

5. References

1. Full title

International Copyright Act, 1852, 15 & 16 Vict., c.12

2. Abstract

Legislation introducing the concept of translation rights within British copyright law. The document contains the following associated material: Hansard: 119 (1852): 498-502 (uk_1852a); 121 (1852): 4 (uk_1852b); Anglo-French Copyright Treaty (uk_1851).

Introduced to implement the obligations of the Anglo-French Copyright Convention, agreed in November 1851, this Act provided that the British monarch could, by Order in Council, provide foreign authors with the right to prevent the reproduction and performance of their literary and dramatic works in translation. The Act also introduces the first statutorily defined permitted acts within the UK, and is indicative of the increasing influence that international standards and obligations began to exert upon the content and substance of domestic copyright law.

The commentary locates the Act within the context of the two previous International Copyright Acts (see: uk_1838; uk_1844) and the Anglo-French Convention, highlighting the selective manner in which the British legislature implemented its obligations under the 1851 Convention, in particular in drawing a distinction between the reproduction of political and non-political material, as well as the difficulty that foreign authors experienced in complying with the provisions of the legislation.

3. The International Copyright Act 1852

When, on 20 March 1838, Charles Poulett Thomson (1799-1841), President of the Board of Trade, sought leave in the Commons to bring in the International Copyright Bill, various Members of the House spoke to his proposal. Amongst them was Henry Goulburn (1784-1856), M.P. for Cambridge University, who expressed some concern as to whether the proposed legislation would prove to be either successful or effective. One of the reasons for his scepticism lay in the fact that the Bill, as Poulett Thomson had explained it, was to include an exemption for translations of works that would otherwise be protected in accordance with the current copyright legislation. While it was right, he considered, that someone who investing time and effort translated a work should be rewarded, nevertheless, permitting the publication of works in translation he suggested "would be unjust to the original inventor of the work" whose interests "would be materially affected by means of the translation". Goulburn suggested that the House should take care in addressing these various issues so that the Act (or any measure therein) would prove neither "dangerous to authors" nor "inoperative".[1] All negotiations under the 1838 Act of course failed,[2] and while Goulburn's warning did not prevent Britain successfully negotiating bilateral copyright agreements with various German states following the International Copyright Act 1844,[3] the issue of translations did prove fatal as regards negotiations with the French,[4] in the short term at least.

When, in November 1851, an Anglo-French agreement was finally negotiated, the question of protecting translations lay at the heart of the same. In brief, the Treaty set out that reciprocal copyright protection would be extended to "works of literature or of art",[5] and would specifically encompass the publication of literary works as well as the performance of dramatic works in translation. The protection for translations of works however was of a limited nature, as we shall see. In general, however, as regards the translation right, in agreeing the treaty, the British negotiators were purporting to provide protections which did not yet exist in domestic law.[6] Indeed this was acknowledged within the treaty itself in that it incorporated an undertaking on the part of Victoria "to recommend to Parliament to pass an act to enable her to carry into execution such of the arrangements contained in the present Convention as require the sanction of an act of the legislature".[7] As a result, six months later, the International Copyright Act 1852 received the Royal Assent. The 1852 Act then is notable not just for the fact that it introduced the concept of the translation right into British copyright jurisprudence, albeit only in relation to work by foreign authors (or, more accurately, to works first published or performed in a foreign jurisdiction),[8] but that it did so to comply with a pre-existing international obligation as regards the parameters of that domestic law.[9] Also, of significance was the fact that the Act was to provide the model for future international copyright negotiations. When Henry Labouchere (1798-1869), then President of the Board, moved for leave to introduce the Bill, he made it clear that, while the Bill was drafted to implement the treaty with France, this did not prevent it from having "universal application"; the Bill, he explained, was designed to "complement" the existing International Copyright Act 1844.[10] Labouchere continued that:

"[I]t was the intention of Government, when the Bill should become law, to communicate the law as it should then stand to the various countries of the world, especially to the United States, and to urge upon them the subject, in order that a negotiation might be entered into that would lead to a satisfactory conclusion."[11]

4. The Translation Right, and the introduction of Permitted Acts

In principle the protection for works in translation represents a considerable conceptual milestone in the history of British copyright law; in practice however this new protection proved somewhat limited in effect. When Labouchere sought leave to introduce the Bill on 13 February 1852, he explained that, in earlier negotiations, the French government had pressed for extending the "protection now confined to original works to translations of works"; the British government, however, did not think it right to accede to that proposal or "to grant a very extended protection in translations". In setting out the government's position on the matter, Labouchere explained that it seemed to him "unjust and improper to place translations on the same, or anything like the same, footing as original publications".[12] As a result, whereas, under the terms of the Treaty, the protection for foreign authors of literary and artistic works was to be "for the same term, and to the same extent" as the author of such a work would receive in his or her own country,[13] with respect to translations of the same, it was agreed that authors would only receive the "right of translating" their work for a period of five years from first publication.[14] Moreover, this translation right was contingent upon satisfying a series of considerably burdensome practical and legal conditions.[15] In the context of the 1852 Act, for example, the foreign author of a literary work had to publicly reserve his right of translating the work,[16] and, within the first three months of publishing the original work, both register the work with the Stationers' Company and deposit a copy of the same with the British Museum (in accordance with the 1844 Act);[17] in addition, he had to publish a translation (of at least part) of the work either in the country of origin or within the British Dominions no later than one year after registration and deposit of the original,[18] and register and deposit a copy of the work in translation.[19] It is perhaps not surprising that the Publishers' Circular within two months of the passing of the Act was "reminding authors and publishers of the treaty's requirements, and noting with regret that very few appeared to be taking advantage of its protection".[20]

Even when authors purported to act in compliance with the legislation the issue of what amounted to a "translation" of a work, so as to satisfy the publication requirements laid down by the Act, could be their undoing. Wood v. Chart (1870), for example, concerned a dramatic work, Frou-Frou, by two French authors, that was first performed in Paris in October 1869. They subsequently published the play, again in Paris, (and with the requisite notification that their rights of reproduction, translation and representation were reserved), and then registered the work in London on 2 December of the same year.[21] In January 1870 they assigned all their rights of performing the work in Britain and Ireland (whether in translation or in the original French) to the plaintiff for the sum of £80. Throughout January and February the plaintiff published the work, under the title Like to Like, in the periodical the Musical World with the following note: "This version is sanctioned by the authors, and published with their approval, in conformity with the requirements of the International Copyright Act, 1852".[22] When the defendants staged a performance of the play, translated by Benjamin Webster (1798-1882), at Brighton, they argued that the plaintiff's play, Like to Like, was not protected in accordance with the legislation in that it was not a translation of the original French comedy but rather an adaptation of the same.[23] James VC (1807-1888) agreed:

"It appears to me that the plaintiff has gone out of his way to dig a pit-fall for himself ... he has introduced English characters; he has transferred the scene to England; he has made the alterations necessary for adapting it and making it an English comedy, and not a translation of a French comedy, and he has left out a great number of speeches and passages, especially in the first act, which would seem to imply that at first he was merely making an imitation, or adaptation, and afterwards was minded more completely to make a translation."[24]

The distinction that James VC alluded to between executing a translation of a work and making an imitation or adaptation of the same was one that had been drawn out within the legislation itself. When the Convention was agreed it included a number of provisions that sought to delineate certain uses of protected work that would not otherwise be considered to be unlawful. Article 4 set out that the protection provided for translations of dramatic works was "not intended to prohibit fair imitations, or adaptations of dramatic works to the stage in England and France respectively, but is only meant to prevent piratical translations". Similarly Article 5 provided that "articles extracted from newspapers or periodicals published in either of the two countries, may be republished or translated in the newspapers or periodicals of the other country, provided the source from whence such articles are taken be acknowledged" subject that is to a right of the author to specifically forbid the republication of the same.[25] These two articles then gave rise to the first statutorily defined ‘permitted acts' within British copyright law.[26]

When incorporating these two provisions within the domestic legislation, however, the drafters of the 1852 Act altered the substance of both in significant ways. In relation to the right to reproduce material from newspapers and periodicals, the legislature introduced a distinction between ‘political' and ‘non-political' material. That is, while it was lawful to reprint foreign articles containing "political discussion" in Britain regardless of whether the author had "signified his intention of preserving the copyright therein",[27] foreign authors could prevent the republication of articles relating to "any other subject" if they gave notification of the same in accordance with Article 5.[28] As regards the right to make fair imitations and adaptations of dramatic works under the Convention, the 1852 Act extended this not just to "dramatic piece[s]" published in a foreign country,[29] but also to any "musical composition".[30] In this way, while the legislation was intended to give effect to the provisions of the Anglo-French Treaty, the manner in which it implemented those obligations was by no means a mechanical and unthinking exercise. There was clearly a willingness on the part of the legislature to depart from those obligations in defining the parameters of the domestic copyright regime when to do so was considered advantageous and in the national interest.

5. References

Government papers and legislation

International Copyright Act, 1838, 1 & 2 Vict., c.59

International Copyright Act, 1844, 7 & 8 Vict., c.12

International Copyright Act, 1852, 15 & 16 Vict., c.12

Statute of Anne, 1710, 8 Anne, c.19

Copyright Act, 1911, 1 & 2 Geo.V, c.46

International Copyright Act, 1875, 38 Vict., c.12

Cases

Burnet v. Chetwood (1721) 2 Mer. 441

Wood v. Chart (1870) 10 Eq. 193

Books and Articles

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

Thompson, G.C., Remarks on the Law of Literary Property in Different Countries (London: The National Press Agency, 1883)

Sherman, B. and Bently, L., The Making of Modern Intellectual Property Law (Cambridge: Cambridge University Press, 1999)

[1] Hansard, 3^rd Ser., 41 (1838): 1105.

[2] International Copyright Act, 1838, 1 & 2 Vict., c.59; see: uk_1838.

[3] International Copyright Act, 1844, 7 & 8 Vict., c.12; see: uk_1844.

[4] C. Seville, The Internationalisation of Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (Cambridge: Cambridge University Press, 2006), 51-52.

[5] These were defined as including "publication of books, or dramatic works, of musical compositions, of drawing, of painting, of sculpture, of engraving, of lithography, and of any other works whatsoever of literature and of the fine arts"; A.1.

[6] As early as 1721 the courts had decided that the Statute of Anne, 1710, 8 Anne, c.19, did not necessarily prohibit the publication of a work in translation in that "a translation might not be the same with the reprinting the original, on account that the translator has bestowed his care and pains upon it"; Burnet v. Chetwood (1721) 2 Mer. 441. See: uk_1721.

[7] A.14.

[8] It must be remembered of course that, at this time, these translation rights only operated to protect works by authors first published or performed in a foreign jurisdiction, and not works first published within the United Kingdom itself. In that regard, the concept of a translation right for British authors, as a derivative right, had not yet been realised within the domestic copyright regime. Thompson, writing over 30 years later, summarised the position in relation to translations in the following way: "In England ... every translation is regarded as a new and substantive work, and to publish a translation of a book is no infringement of the author's copyright. But this is subject to the qualification that on the basis of reciprocity, protection for a period not exceeding five years may be given to foreign authors who have authorised the publication of one translation in England against the publication of a second translation"; G.C. Thompson, Remarks on the Law of Literary Property in Different Countries (London: The National Press Agency, 1883), 30. The extension of a general right to prevent translations of works first published within the UK was not realised until the passing of the Copyright Act 1911 which defined copyright as including the sole right to "produce, reproduce, perform, or publish any translation of the work"; Copyright Act, 1911, 1 & 2 Geo.V, c.46, s.1(2)(a).

[9] As Sherman and Bently note: "[T]here is no doubt that translation rights were introduced into British law in 1851 [1852] so as to bring domestic law into line with the pre-existing Anglo-French copyright treaty"; B. Sherman and L. Bently, The Making of Modern Intellectual Property Law (Cambridge: Cambridge University Press, 1999), 118.

[10] Hansard, 3^rd Ser., 119 (1852): 500.

[11] Ibid., 502.

[12] Hansard, 3^rd Ser., 119 (1852): 499.

[13] Article I.

[14] Article III.

[15] See in general Article III.

[16] Either upon the title page of the work, or "if there is no Title Page on some conspicuous Part of the Work"; s.8(2).

[17] Ibid., s.8(1).

[18] s.8(3); the whole work had to be published within three years of registering and depositing the original work within the UK.

[19] s.8(4).

[20] Quoted in Seville, 52.

[21] Wood v. Chart (1870) 10 Eq. 193.

[22] Section 8(5) of the 1852 Act sets out that "[i]n the case of Dramatic Pieces the Translation sanctioned by the Author must be published within Three Calendar Months of the Registration of the original work".

[23] The defendants also argued that their production of the play was a "fair imitation" of the original and so permissible under s.6 of the Act itself. It is clear however that James VC did not share that opinion dismissing their version of the play as no more than a "piratical translation of the original work"; Wood v. Chart, 643.

[24] Ibid., 642-43. He continued: "[W]hat the Act required ... was that the English people should have the opportunity of knowing the French work as accurately as it was possible to know a French play by the medium of a version in English. That seems to me what was intended, and having come to the conclusion that this is not a translation, I am of opinion that the plaintiff has failed to comply sufficiently with the condition precedent which the Act has imposed upon him to be entitled to sustain this suit"; ibid., 643.

[25] Article 5 continued: "Nevertheless, this permission shall not be construed to authorize the republication in one of the two countries of articles from newspapers or periodicals published in the other country, the authors of which shall have notified in a conspicuous manner in the journal or periodical in which such articles have appeared, that they forbid the republication thereof".

[26] Prior to the 1852 Act the courts had begun to develop the concept of ‘fair use' within copyright jurisprudence, for details of which, see, in general: uk_1741.

[27] This was of course still subject to an obligation to acknowledge the source of the article; s.7.

[28] Ibid.

[29] This concept of a lawful fair imitation or adaptation of a dramatic work was revisited with the passing of the International Copyright Act, 1875, 38 Vict., c.12, s.1 of which provided that: "In any case in which ... any Order in Council has been or may hereafter be made for the purpose of extending protection to the translation of dramatic pieces first publicly represented in any foreign country, it shall be lawful for Her Majesty by Order in Council to direct that the sixth section of the said Act shall not apply to the dramatic pieces to which protection is also extended; and thereupon the said recited Act shall take effect with respect to such dramatic pieces and to the translations thereof as if the said sixth section of the said Act were hereby repealed".

[30] Ibid., s.6.