* 815

* JEFFERYS v. BOOSEY.

1854. February 16, 17, 20; June 29; August 1.
CHARLES JEFFERYS, Plaintiff in error.

THOMAS BOOSEY, Defendant in error.

Foreigner. Copyright. Assignment of Copyright.

The object of 8 Anne, c. 19, was to encourage literature among British subjects, which description includes such foreigners as, by residence here, owe the Crown a temporary allegiance,' and any such foreigner, first publishing his work here, is an "author" within the meaning of the statute, no matter where his work was composed, or whether he came here solely with a view to its publication.

Copyright commences by publication; if at that time the foreign author is not in this country, he is not a person whom the statute meant to protect.

An Englishman, though resident abroad, will have copyright in a work of his own first published in this country.

B., a foreign musical composer, resident at that time in his own country, assigned to R., another foreigner, also resident there, according to the law of their country, his right in a musical composition of which he was the author, and which was then ur published. The assignee brought the composition to this country, and, before publication, assigned it, according to the forms required by the law of this country, to an Englishman. The first publication took place in this country:

Held, reversing the judgment of the Court of Exchequer Chamber, that the foreign assignee had not, by the law of this country, any assignable copyright here in this musical composition.'

Per LORDS BROUGHAM and ST. LEONARDS. mon law; it is the creature of statute.

Per LORD ST. LEONARDS.

Copyright did not exist at com

No assignment of copyright under the 8 Anne, c. 19, the benefit of which is claimed by the assignee, although from a foreigner, can be good in this country, unless it is attested by two witnesses.

Per LORD ST. LEONARDS.

There cannot be a partial assignment of copyright.

THIS was an action on the case brought in the Court of

Exchequer by T. Boosey against C. Jefferys. The dec*816 laration* stated that the plaintiff was, and still is, the proprietor of the copyright in a certain book, to wit, a musical composition called "Come per me sereno," Recitativo e Cavatina

1 See

per Lord Westbury in Routledge v. Low, Law Rep. 3 H. L. 103. See Routledge v. Low, Law Rep. 3 H. L. 100; Houldsworth v. M-Crea, Law Rep. 2 H. L. 380.

nell' Opera La Sonnambula, del M. Bellini, which said book had been and was first printed and published in England, and within twenty-eight years last past, and which copyright was subsisting at the time of the committing of the grievances, &c. Yet the defendant, contriving to injure the plaintiff, and to deprive him of the gains, &c. which he might, and otherwise would have derived from the said book, and also to deprive him of the benefit of his copyright therein, heretofore and after the passing of a certain Act of Parliament, &c. (the 5 & 6 Vict. c. 45), and within twelve months before the commencement of this suit, to wit, &c. wrongfully, and without the consent in writing of the plaintiff; so being the proprietor of the said copyright, did, in England, unlawfully print and cause to be printed for sale, divers copies of the said book, contrary to the form of the statute. And the defendant further contriving, &c., heretofore and within twelve calendar months next before the commencement of this suit, to wit, &c., did wrongfully, and without the consent in writing of the plaintiff, so being the • proprietor of the copyright, unlawfully sell and cause to be sold, and unlawfully publish and cause to be published, and expose to sale and hire, and caused to be exposed to sale and hire, and unlawfully had in his possession divers, &c. copies of the said book, then on those days and times, &c., well knowing the said copies, and each and every of them, to have been unlawfully printed, contrary to the form of the statute. By means, &c. the plaintiff has been hindered and prevented from selling, &c., and his copyright has been and is greatly injured and damnified, to the plaintiff's damage.

The defendant pleaded, first, that the plaintiff was not *the proprietor of the copyright in manner and form, and 817 secondly, that there was not, at the time of committing the supposed grievance, a subsisting copyright in the book, as alleged. The plaintiff took issue on these pleas.

The cause came on for trial before Mr. Baron Rolfe, at the sittings after Easter Term, 1850, when it appeared in evidence that the opera in question was composed at Milan, in February, 1831, by Vincenzo Bellini, an alien, then and since resident at Milan; that by the law of Milan, he was entitled to copyright in this opera, and to assign such copyright; that on the 19th of February, 1831, he did, by an instrument in writing, according to the law of Milan, assign the copyright to Giovanni Ricordi, also an

alien, and resident at Milan; that according to the law of Milan, such copyright, and the right of assigning the same, thereby became vested in Ricordi; that on the 9th day of June, 1831, Ricordi being then in London, duly executed, according to the laws of England, an indenture, made between himself and the plaintiff, which indenture recited the above facts, and assigned all Ricordi's interest in the copyright in the opera to the plaintiff, but for publication in the United Kingdom only. The plaintiff further proved that he was a native-born subject, resident in England; that the opera was first published by him in London on the 10th June, 1831, and that there had been no previous publication thereof in the British dominions, or in any other country; and on the same day the book was duly registered in the Stationers' Company and copies deposited there according to law. The plaintiff further proved that, on the 13th of May, 1844, he caused a further entry to be made in the registry of the Stationers' Company, for the purposes of the statute passed in the 5 & 6 Vict. c. 45, and these entries were proved in evidence at the trial. Mr. Baron Rolfe *818 *then, in conformity with the decision in Boosey v. Purday, directed the jury that the matters given in evidence were not sufficient to entitle the plaintiff to a verdict on either of the issues, and that the verdict must be found for the defendant. A bill of exceptions was tendered to this direction. The cause came on to be heard on the bill of exceptions (which set forth the pleadings and facts above stated) before the Judges in the Court of Exchequer Chamber, on the 20th May, 1851, when judgment was given declaring the direction at the trial to be wrong, and a venire de novo was awarded.2 A writ of error was then brought in this House.

The Judges were summoned, and Lord Chief Justice Jervis, Lord Chief Baron Pollock, Mr. Baron Parke, Mr. Baron Alderson, Mr. Justice Coleridge, Mr. Justice Maule, Mr. Justice Wightman, Mr. Justice Erle, Mr. Baron Platt, Mr. Justice Williams, and Mr. Justice Crompton attended.

Mr. Serjeant Byles and Mr. Quain for the plaintiff in error. The judgment of the Court below is wrong, for Ricordi possessed no copyright in England, and his assignment passed nothing. It is a generally understood principle, that a municipal law, such as

1

4 Exch. 145.

26 Exch. 580.

that of copyright, does not extend beyond the limits of the country which enacts it. Story's Conflict of Laws. If the laws of two countries conflict, the decision must be according to universal principles of law, or according to the special law of the country where the suit is prosecuted.

[LORD BROUGHAM. That principle was declared in this House in Don v. Lippmann,2 the authority of which * has been universally recognised.

times by Story.]

It is quoted many * 819

In the United States, the law expressly declares that no person has copyright there but one who is a native of the States, or a resident in them; and it appears doubtful whether he must not be such a resident as may become an American citizen. In this country the law has not been so expressly declared by statute, but the statutes that have been passed upon that subject bear a similar interpretation. Starting from an acknowledged point, the course is perfectly clear. The case of Chappell v. Pur- *820 day decides that a foreign author resident abroad, whose works are published in this country, has not, under the Statutes of 1 Sections 7-18, 375, 425, 436. 25 Clark & F. 1.

66

The words of the Act of Congress of 3 Feb. 1831, § 1, are: Any person or persons, being a citizen or citizens of the United States, or resident therein, who shall be the author or authors of any book, map, chart, or musical composition, which may be now made or composed and not printed and published, or shall be hereafter made or composed, or who shall invent, design, etch, engrave, work, or cause to be engraved, etched, or worked, from his own design, any print or engraving, and the executors, administrators, or legal assignees of such person or persons, shall have the sole right and liberty of printing, reprinting, publishing and vending such book or books, map, &c., &c., in whole or in part, for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter described."

Curtis on Copyright, p. 141: "In the United States there can be no copyright of a book, map, chart, or musical composition, print, cut, or engraving, unless the author be a citizen of the United States or resident therein, at least at the time of publication. Whether it is necessary that the work should have been made or composed in the United States, or while the author was a citizen of, or resident in the country, does not present a question of much doubt"; he then gives the provisions of the statute of 1831, and after describing the questions that may arise as to the length of the foreigner's residence in the United States, and whether it amounts to domicile, he says, speaking of the Act of Congress, “Does it mean that he must have resided while he made or composed his work, or can a resident foreigner publish and take a copyright of a work which he has composed abroad?"

5

14 M. & W. 303.

VOL. IV.

40

[ 625 ]

8 Anne, c. 19, and 54 Geo. 3, c. 136, any copyright here. That case was decided in 1845, and it was there said: "The general question, whether there was such a right at common law, was elaborately discussed in the great cases of Millar v. Taylor1 and in Donaldson v. Beckett." In the latter of these cases, it was distinctly decided that copyright was entirely the creature of the statute, a decision that was adopted and recognised by Lord Kenyon, in Beckford v. Hood, and seems to be assumed by Lord Ellenborough, in The University of Cambridge v. Bryer, and asserted by Lord Tenterden, in White v. Geroch. Hinton v. Donaldson was a case in Scotland, that preceded the decision of Donaldson v. Beckett in this country, and there twelve of the Judges held that there was no copyright at common law, Lord Monboddo being the only Judge who took an opposite view of the question. In Boosey v. Purday, where the facts were the same as here, it was decided that a foreign author domiciled abroad had no copyright in England. That decision, which was, in fact, made after reconsidering an opinion to the same effect previously intimated in Chappell v. Purday, seems to have been misunderstood when the present case was in the Court of Exchequer Chamber.

6

* 821

The chief case on the other side is that of Cocks v. Purday, where the Court of Common Pleas held that a foreigner, resident abroad, might, in a book first published by him in this country, have an English copyright which he could assign to another. That decision was pronounced. in 1848. After that came Boosey v. Davidson,10 which supported Cocks v. Purday, and indeed adopted it as a guiding authority. The question now will be, whether those decisions can be supported.

The title to copyright is given by statute, and is a right which can only be exercised in England according to the statute. It is a right as strictly local as are rights to an estate, or to any easement incident or appurtenant to an estate; it is a municipal law which can have no force in any other country. There is no dispute here 16 East, 317.

1 4 Burr. 2303.

4 Burr. 2408, 2 Brown, P. C. 129.

7 T. R. 620-627.

5 2 B. & Ald. 298.

• Dict. of Decisions, tit. Literary Property, p. 8307; Fol. Dic. v. 3, p. 388.

7 4 Exch. 145.

8 14 M. & W. 319.

10 18 Law J. N. S. Q. B. 174, 13 Q. B. 257.

95 C. B. 860.