CO885-(11-13) — Page 286

PUBLIC RECORD OFFICE

سا

Reference :-

CO. 885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

12 PUBLIC RECORD OFFICE, LONDON

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prohibition against such books as are not registered. Mr. Malcolm stated that it appears, however, to your Lordship that under the Statute 10 & 11 Vict. cap. 95, Her Majesty has power only to suspend the prohibition in toto, and that She has no power to authorise such a partial suspension as above mentioned. Mr. Malcolm stated that your Lordship would be glad if we would advise your Lordship whether this view is correct; and if it is, whether it is necessary that there should be Imperial legislation in order to extend Her Majesty's powers, so as by Order in Council to enact such a partial prohibition.

That, lastly, Mr. Malcolm stated that your Lordship would wish to be advised whether, looking to the fact that the Reserved Bill sets up a copyright in Canada, and by clause 11 prohibits importation of copyright works, while the effect of existing legislation is, as above stated, to permit the introduction of foreign reprints, it can be contended that the whole Reserved Bill is so far repugnant to Imperial legislation as to render necessary a Validating Act of the Imperial Parliament, having regard to the terms of the Colonial Laws Validity Act, 28 & 29 Vict. cap. 63.

In obedience to your Lordship's commands we have taken these papers into con- sideration, and have the honour to

That-

Report

1. We think that clause 15, when read in conjunction with the other clauses of the Canadian Bill referred to us, does not enable any person to pirate English copyright works, and obtain Canadian copyright for himself. We think the meaning of the clause is that the works therein specified shall be entitled to copyright in Canada on the application of the author or his legal representatives.

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2. The words British possessions do, in our opinion, include the United Kingdom.

3. We concur in the view which your Lordship has taken of the Statute 10 & 11 Vict. cap. 95. Under that Act Her Majesty has power to suspend in toto the pro- hibition of the importation of foreign reprints into Canada, but She has no power to authorise a partial suspension.

4. We think that the Reserved Bill is void for repugnancy, so far as it prohibits the importation of foreign reprints into Canada, or permits such importation upon terms different from those prescribed by the Order in Council of December 12, 1850.

It appears to us that if the Canadian Bill is to become law, it will be necessary to pass an Act of the Imperial Parliament-

(1.) To exempt from the operation of the Acts 5 & 6 Vict. cap. 45, 8 & 9 Vict. cap. 93, and 10 & 11 Vict. cap. 95, all such works as shall become entitled to Canadian copyright under the new law.

(2.) To enact that the new Canadian law shall not be void for repugnance under

28 & 29 Vict. cap. 63.

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

We have, &c. (Signed) RICHARD BAGGALLAY.

JOHN HOLKER.

7872.

MY LORD,

No. 63.

(CANADA.)

LAW OFFICERS to FOREIGN OFFICE.

Lincoln's Inn, 12th July 1875. We are honoured with your Lordship's commands, signified in Mr. Lister's letter of the 4th June ultimo, stating that he was directed by your Lordship to transmit to us two letters from the Colonial Office, and a despatch from Her Majesty's Minister at Washington, relative to the refusal of the United States Customs authorities to allow the importation, free of duty, of fish and fish oil from British Columbia, under the 21st Article of the Trenty of Washington.

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That Article provided that fish and fish oil, the produce of the United States or of the Dominion of Canada, should be admitted into each country free of duty; Mr. Lister stated that it must be borne in mind that, at the date of the signature of the Treaty, British Columbia did not form part of the Dominion. The Canadian Government, however, contend that, as the Act of the United States Congress giving effect to the provisions of the Treaty respecting fisheries was passed after the admission of British Columbia to the Dominion, and applied to "all fish oil and fish of all kinds (except fish of the inland lakes and of the rivers falling into them, and except fish preserved in oil) being the produce of the fisheries of the Dominion of Canada, or of Prince Edward's Island," they have a right to claim free admission for fish oil and fish from British Columbia.

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A copy of the Washington Treaty, and a volume containing the Revised Statutes of the United States were annexed for convenience of reference, and Mr. Lister was to request us to take the papers into our consideration, and to report to your Lordship our opinion as to the course which Her Majesty's Government should pursue in the

matter.

In obedience to your Lordship's commands we have taken these papers into con- sideration, and have the honour to

Report

That, in our opinion, the words "Dominion of Canada" in the Treaty of Washington, Article XXI., must be governed by the state of things existing in May 1871, and cannot now receive a wider construction from the fact that additional territory has since been added to the Dominion.

We are unable to agree with the reasoning in the report of the Committee of Privy Council of the 30th of April 1875, upon the 26th Article of the Treaty of Washington, and we think no inference applicable in any way to the present case can be drawn from the provision that the navigation of certain specified rivers is to be free.

But we think that some confirmation of the view taken by the United States Custom House is given by Articles XVIII. and XIX. of the Treaty, which apply only to fisheries on the eastern or Atlantic side of the continent.

The Article XXXIII. provides the means by which the several Articles named are to be carried into operation, but does not provide for extending the meaning or operation of those Articles, and we think the Act of Congress of the 1st March 1873, and the Act of the Parliament of Canada of the 14th June 1872, must both be construed, with reference to the "Dominion of Canada," as that Dominion was on the 8th of May

1871.

We are, therefore, of opinion that your Lordship cannot properly instruct Sir E. Thornton to bring the matter before the United States Government.

Whether the Canadian Government should refuse to admit the similar produce of the United States free of duty, or an additional Article should be added to the Treaty, providing for the case of British Columbia, are questions of policy, which we venture to suggest for consideration.

The Earl of Derby,

&c.

&c.

We have, &c.,

(Signed)

RICHARD BAGGALLAY. JOHN HOLKER.

J. PARKER DEANE.

▲ 13916-62. 25.-12/94.