PUBLIC RECORD OFFICE
Reference :-
T T། ། ། ། C.O.
885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
!
If section is
held to give
no inter- colonial pro- bibition this point would not, however, touch the Australian
Colonies.
2
"
The other criticism of the Registrar on this section (pp. 29 and 30), that it is defective in not providing for a declaration in support of the "notice" to the Commissioners, as section 44 does, is an accurate one. The additional safeguard of the declaration was (after correspondence with the Treasury) introduced in 1855, by a Customs Amendment Act, 18 and 19 Vict. c. 96. section 40, and applied to both the United Kingdom and the Colonies. In the Consolidation Act of 1876, it was not continued as to the Colonies; whether this was accident, or whether Mr. Hamal had any special instructions on the point, I cannot trace. As a matter of practice, however, the list for the Colonies is but a copy of that for the United Kingdom; so that, practically, the declaration does apply in both cases.
Whether a copyright owner could claim protection in a Colony on "notice" only, without “
declaration," might be a point. Probably he could do so. But the claim is not one in the least likely to be made.
4
The Registrar touches, though he does not dwell strongly on, an interesting point, when, in pp. 13 and 16, he refers to importation by land. He points out that section 17 of the Copyright Act (5 & 6 Vict. c. 45) gives power only over importations from "parts beyond the seas"; while section 23 does not restrict action by the copyright proprietor to such importations. He is correct, I think, as to his view of this discrepancy. It is not, however, as a matter of fact, these sections which govern this point, but the extent, in that direction, of section 152 of the Customs Act.
Taking it as it stands, it would seem doubtful, from the wording of that section, which directs the Commissioner of Customs to transmit lists of books to the ports of the British Rossessions abroad, whether it does apply to passage across inland border; but, as I have said, the section is a re-enactment of provisions in the Customs (British Possessions) Act, 8 & 9 Vict. c. 93., and its predecessors, and in those Acts importation has, I think, a wide meaning. Although in the United Kingdom we think of, and provide only for importation by water, and into ports, yet the word "import" of course, in its derivation and in dictionaries, has the wide meaning of "bring into," and in the Acts I am referring to there are expressions, mainly adapted, as then only necessary, to the British Possessions in America, such as import by sea"; "import or bring either by sea or inland carriage or navigation, import by land or by inland navigation from any adjoining foreign country"; "not lawful to bring or "import except into some port or place of entry at which a Custom-house is"; "arrival at any foreign port"; "and provisions to establish ports in rivers and bays;" which clearly shows that what these Acts prohibited by sea, they were intended, so far as it was then from the circumstances of the Empire necessary, to prohibit also by land or inland water. Most of the Australian Copyright and Customs Acts expressly prohibit "importation by land as well as by sea.”
As regards (b): General reasons for not wishing to apply the Acts:-
The Registrar, first, gently hints that it is optional with the Colony to apply them or not, that it is a "political" and not a merely "functional" question. It is not for me to express any special view on a point of such high Imperial statesmanship; and, in fact, Lord Knutsford's letter of the 9th February 1891 emphatically reminds the Governor of the Colony that in the opinion of the Home Government "the Australian "Colonies are bound to give effect to the Imperial Copyright Acts, both as a domestic " and international obligation."
Of course, especially in the present day, the question of how far Imperial legislation is to press laws on self-governing Colonies is a very delicate one; but I would just venture to remark that this is still the case as to some subjects, notably the Merchant Shipping Laws, and Foreign Enlistment Acts; and that, in the copyright case of Routledge v. Low (which I have referred to above), it was distinctly laid down, by the House of Lords, that it was "within the power of the Imperial Parliament to make "laws for every part of Her Majesty's dominions." Whether copyright should, or should not, have this exceptional position more than patents, to which the Registrar refers, is a matter of policy beyond my province, but the international position of copyright now, undoubtedly, gives it a special prominence.
The Registrar, after all his criticisms, somewhat reluctantly admits that he thinks the machinery, taking all the Acts together, is sufficient for stoppage on importation, but that it is unwise to use it (p. 24). He thinks that access to courts is all a British copyright owner ought to look for. This may be so thought, but his main argument for it-distance and inability to consult the copyright owner-is not a strong one, because all large publishers have, or can have, their local agents easily accessible; and, indeed, this is the chief ground which the Registrar himself urges for court procedure being all that is needed (pp. 25 to 28).
3
The arguments urged that the cheap editions do not reach the Colony, that "rings' prevented, that State Education, Government Institutions, and municipalities in the Colony largely need such editions, and have them not, are points possibly for con- sideration, but on which it is not for me to dwell (pp. 37 to 44).
The Registrar mentions, and with, apparently, an idea that, effort should be made for a privilege, in some way withheld, that the same position should apply to Australia as to Canada" that great country" (p. 36); I imagine that to no Colony in Australia, nor to a "commonwealth" of Australia, would objection be made to this, provided the local law adequately protected British copyright owners in the same or some not less effective way.
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