165
PUBLIC RECORD OFFICE
C.O.
Reference :-
885
13 PUBLIC RECORD' OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
J
No. 168.
(CANADA.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD,
We were honoured with your Lordship's commands signified in Mr. R. H. Meade's
Royal Courts of Justice, December 31, 1889. letter of the 26th October last, stating that he was directed by your Lordship to transmit for our consideration the accompanying copy of a Report of the Privy Council of Canada, dated the 17th of August last, concurring in a Report from the Minister of Justice of the 3rd of August on the subject of an Act passed in the last session of the Dominion Parliament, entitled "An Act to Amend the Copyright Act," of which a copy was
enclosed.
That your Lordship proposed to defer for the present the consideration of the question whether the provisions of that Act were such as ought in justice to be enacted, but that you desired Mr. Meade to invite our special attention to the arguments in the sixteenth and subsequent paragraphs of the Report made by the Minister of Justice on the 3rd of August as to the power of the Dominion Parliament to pass the Act in question, which avowedly conflicted with the Imperial. Copyright Act of 1866, a statute which applied to Canada and conferred rights in Canada upon British authors publishing works in other parts of Her Majesty's dominions.
That the cases of Hodge v. The Queen (9, Appeal Cases 117), and of Powell v. Apollo Candle Company (19, Appeal Cases 282), which were cited by the Minister of Justice, appeared to your Lordship only to affirm that over such matters as were within the jurisdiction of Colonial legislation a Colonial Legislature had plenary power to legislate, but that the question in the present case was whether legislation affecting the interests of persons, which were secured to them by Imperial Copyright Acts now operative within Canada, was or was not within the jurisdiction of the Dominion Legislature, a question which, as it appeared to your Lordship, must be mainly decided by the language of the British North America Act, 1867.
That the other cases cited, Harris v. Davies (10, Appeal Cases 279), and Rich v. The Queen (10, Appeal Cases 675), seemed to relate to legislation dealing with matters of local concern only, and affecting only persons within the local limits of the possession. That consequently those cases did not appear to be authorities for the larger contention now put forward by the Dominion Government, which amounted, as it seemed to your Lordship, to a claim to deprive persons not within the local limit of Canada, of rights which they possessed under the provisions of an Act of the Imperial Parliament.
That Lord Carnarvon's despatch of 15th June 1874 would be found at page 12 of the Parliamentary paper 141 of 1875, and the opinion of Lord Selborne and Lord Herschell, dated 7th November 1871, at page 74 of the Parliamentary paper 339 of 1872. That both those papers were enclosed, together with copies of reports by the then Law Officers, dated 22nd of May 1874 and 7th of June 1875.*
That Mr. Meade was also to invite our attention to the Colonial Laws Validity Act, 1865, and to remind us that the previous Copyright Act of Canada was not assented to until an Act of Parliament (38 & 39 Vict. c. 53) specially authorised Her Majesty in Council to assent to it.
That your Lordship would also invite attention to the case of Smiles v. Belford, in the Supreme Court of Upper Canada on appeal (1 Upper Canada Reports, 436), a case relating to the copyright rights in Canada of authors publishing in the United Kingdom, and to the effect of the British North America Act, 1867, in which Judge Burton (p. 443) laid down that no greater powers were conferred upon the Parliament of the Dominion to deal with copyright than had been previously enjoyed by the local Legislatures, and in which Judge Moss (p. 447) stated that it must be taken to be beyond all doubt that the Dominion Legislature was not empowered to pass any law opposed to statutes which the Imperial Parliament had made applicable to the whole Empire.
That reference was made in that case to Routledge v. Law (L.R. 3, H.L. 100), which affirmed the right of a Canadian author to copyright throughout the British Dominion of a book published in London.
Nos. 24 and 62 in Vol. 3.
a 61207.-1. 25.-1/90. G. 42. E. & S.