THE HONGKONG GOVERNMENT GAZETTE, 30TH OCTOBER, 1886.
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It is clear that the antiquated form of double registration and deposit-in the country of origin, and in the foreign State-imposes an onerous burden on authors, if protection is demanded in several foreign States, especially in the case of works which, in the interest of the public, most require protection, such, for instance, as expensive scientific and historical publications. To form a Copyright Union on such a basis would be perfectly illusory, as the expense of fulfilling such conditions in many and distant States would often deter the author from obtaining protection in them.
In view of these considerations, we have not hesitated to accept the principle contained in Article II of the draft Convention, viz., that the enjoyment of the rights granted by the Convention is conditional simply on the accomplishment of the formalities, whatever they may be, required by law in the country of origin.
To enable such a condition to be carried out with effect, it is, however, necessary to provide some mode of prima facie proof which, unless invalidated, shall serve as presumptive evidence of authorship; otherwise, an author seeking legal redress against the piracy of his work abroad may be put to the inconvenience and expense of proving in a foreign Court his title acquired under the law of the country of origin.
To meet this difficulty, the Convention framed last year adopted the principle that the mere fact We were, of the author's name being placed on the work should be presumptive evidence of his title. however, of opinion that this was not an entirely satisfactory mode, especially from an English point of view, and we therefore recommended to the Conference, first, that this matter should be left to be settled by the domestic law of each State; secondly, that the method proposed by the Royal Commission of 1878 should be adopted, viz., that "a copy of any entry in any foreign register, attested by any (British) Diplomatic or Consular Agent, should be prima facie evidence."
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It was, however, pointed out that in Germany and Switzerland the formality of registration was no longer required by law, and that in regard to these countries no such certificate could therefore be obtained. Still, it seemed to us that it would be very undesirable to adopt in the Convention any stipulation which might imply an opinion that registration and deposit in the country of origin should be dispensed with; and to cover this point we eventually obtained, after much discussion, the insertion of the last paragraph of Article XI, which leaves to the respective Tribunals the right to require a certificate to the effect that the formalities prescribed by the law of the country of origin, whatever they may be, have been fulfilled.
4. What may be the Subject of Copyright.
We were disposed to think that the simplest plan would be to avoid any enumeration in this respect in Article IV of the draft Convention, but as this course présented certain difficulties, the list inserted in the Project of last
We believe this to be within the limits of existing was maintained. year British law. In view of provisions in the laws of certain States, photographs and choregraphic works have not been expressly included in Article IV, but the mode in which works of these two kinds are to be treated is left to be decided by the law of cach country, as specified in paragraphs 1 and 2 of the Protocole de Clôture.
5. Translations.
The most important point in the question of international copyright is to determine for what period the exclusive right of translating an original work shall be secured to the author.
Three systems alone seem feasible :-
(u.) The complete assimilation of the exclusive right of translation to that of reproducing the original work; that is to say, the author shall be able to prevent the unauthorized translation of his work for the whole period during which his copyright in it subsists.
In favour of this system it is urged that in international transactions translation is in most cases practically the only form of reproduction; and that it therefore seems absurd to grant a certain specified. period of protection abroad to the original work, if, in regard to the only available means of reproduc- tion, viz., translation, the protection is limited to a much shorter period.
On the other hand, it is contended that such a complete reservation to the author of the right of translation is injurious to the public, as tending to deprive them of the benefit of translations which might be made, if the translating right were allowed sooner to fall into the public domain.
(b.) To limit the right of preventing the unauthorized translation to a certain number of years from the date of publication of the original work, on condition that an authorized translation shall appar within a certain fixed period.
On this system the existing British law gives the exclusive right of translation to the author of a foreign work for a period of five years from the publication of an authorized translation; but on condition that a part of such authorized translation must have appeared within one year from the date of registration in the United Kingdom, and the whole of it within three years from that date. The: exclusive period thus extends in some cases to eight years from the date of publication.
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