Evan James Macgillivray

“ If a work is derivative and there is some novel feature which distinguishes it from the work from which it is derived, that novel feature constitutes the originality and receives protection, and the novel feature alone is protected in so far as the derivative work is concerned.
The reproduction of spoken words in the form of a written report, and the recording of musical sounds upon a perforated roll or gramophone record constitute in each case the making of an original work, the originality consisting in the new form in which the words or music are produced [22] . ”

“ Taking it as a whole, the Copyright Act, 1911, is a valuable measure in the interests of literature and art. It may be said that the Government has made too many concessions, both to the socialistic demands of the members of the Labour Party, who believe that there should be no copyright, and to the demands of the makers of mechanical instruments, who appealed to the Government to save a great industry from possible bankruptcy. ”

“ No copyright vests in the proprietor of a collective work unless the author is employed under a contract of service or apprenticeship, or there is an assignment in writing; and when the copyright vests in the proprietor of a periodical by reason of a contract of service or apprenticeship, the author may restrain separate publication. The passing of the copyright by reason of the work having been executed on commission is confined to the cases of engravings, photographs and portraits. The self-governing dominions are given a free hand in copyright matters. ”

“ Photographic Company [17] has lost much of its importance. In that case it was held that where a photographer was employed by a customer in the ordinary way, then even although through want of proper registration the customer could not sue on copyright, yet, as there was an implied term in the contract between the parties that the photographer would only use the negative for the purpose of supplying his customer with copies, the customer could restrain the photographer from making copies for his own use or selling copies or exhibiting them in public. ”

“ Canada, in particular, has long demanded complete autonomy in the matter of copyright legislation, and it became increasingly obvious that if a consolidating Copyright Act was to be passed, the self-governing dominions would insist on having complete liberty to cut themselves adrift from Imperial legislation if they so desired. Authors and publishers in this country were not unnaturally extremely nervous of the possible consequences of Colonial autonomy. ”

“ The enjoyment and the exercise of these rights shall not be subject to the performance of any formality; such enjoyment and such exercise are independent of the existence of protection in the country of origin of the work. Consequently, apart from the express stipulations of the present Convention, the extent of protection, as well as the means of redress secured to the author to safeguard his rights, shall be governed exclusively by the laws of the country where protection is claimed. ”

“ The Act will undoubtedly simplify the law, and although there may be an increase of copyright litigation for the next few years, this will not continue after a few doubtful points have been cleared up and laymen begin to understand the salient features of the new law. The self-governing colonies have at last got their desire in the matter of copyright autonomy, and there is good reason to believe that it will not be exercised so as in any way to prejudice the market for English books either in Canada or the United States. ”

“ All works protected in whatever form they are produced. An important feature of the new Act is that every literary, dramatic, musical, and artistic work is protected without making any specified physical form of production a condition precedent to protection and, indeed, without demanding that the work shall be clothed in any physical form at all. ”

“ This alone would be sufficiently serious, but there was the further possibility that if Canada adopted a manufacturing clause as against the United States, the latter might retaliate against Great Britain by excluding British subjects from copyright in the United States upon any condition. Unless the publishers in this country could have reasonable assurance that these things would not follow upon the passing of a consolidating Act they were content to abide by the status quo, which, on the whole, afforded a fairly satisfactory protection throughout the British dominions. ”

“ Investitive publication depends on the terms of the different statutes. A literary work must be published in the form of a book as defined by the Copyright Act, 1842 [125] . Engravings and sculpture acquire copyright upon publication, provided the name of the author and date is placed upon every copy published [126] . Paintings, drawings and photographs acquire statutory copyright although unpublished [127] . It is still a moot point whether or not public performance of a play or music is a condition precedent to statutory performing right. ”

“ The self-governing dominions were to have an absolutely free hand, each in its own dominion, but provision was to be made that if any self-governing dominion did not afford satisfactory protection to the works of British subjects resident elsewhere, then the residents in that dominion might be excluded from the enjoyment of Imperial copyright. ”

“ Subject to the right in certain circumstances of making records upon payment of a royalty, the composer of a musical composition gets the sole right of adapting his composition for use upon mechanical instruments. Subject to limitations in respect of remedies, and to the right of making paintings, drawings, engravings or photographs of any architectural work, architectural works are included among artistic works entitled to protection. ”

“ One remarkable result of the abrogation of the common law right is that foreigners who do not become entitled to statutory protection under this section will obtain no protection in the nature of copyright for their published manuscripts, however secret and confidential they may be. ”

“ Provided the author possesses the necessary qualification as above indicated, all unpublished works receive statutory protection from the time they are created, that is to say, from the date of uttering in the case of a work orally communicated and from the date of making in the case of a work produced in permanent form. ”

“ Each self-governing dominion might, by a manufacturing clause, exclude English and American authors from the enjoyment of copyright except upon condition that the book should be reprinted from type set within the dominion. ”