PATRICK B. O'NEILL
This paper traces the history of dramatic copyright and performance right in Canada prior to the Canadian Copyright Act of 1924. It will also show how the movement towards an international copyright agreement among England, France, and the United States impacted on the theatre in Canada and led to the widespread pirating of English, French, Belgian, and American plays by producers in Canada.
Cet article suit l'histoire du droit d'auteur et du droit d'exécution publique au Canada avant l'adoption en 1924 de la loi sur le droit d'auteur. Il indiquera aussi l'impact sur le théâtre au Canada du mouvement vers un accord international entre l'Angleterre, la France, et les États-unies; ce mouvement a largement encouragé le piratage de pièces de théâtre américaines, belges, françaises et anglaises.
British authors are complaining. French authors are complaining and it is not a small matter. Thousands and thousands of plays are being stolen throughout the whole of Canada without any proper protection being given the authors, and I think we owe them such protection as will be effective. (Holland and Bengough 270)
These words, spoken in 1915 by Quebec Senator Raoul Dandurand,1 indicate the extent that the practice of pirating plays had reached in Canada. Dandurand further noted that these thousands of British and French dramas and comedies were being played every day2 throughout Canada without the payment of any royalties to the authors or their representatives despite Canada's Copyright Act, British Copyright law, and the Berne Copyright Convention. He went on to describe civil recourse in the Canadian courts as absolutely illusory because the "trespassers know all the tricks of the business and they hold in utter contempt the rights of the authors" (Holland and Bengough 270-273).
Dandurand was not alone in his condemnation of Canada's copyright laws. George H. Moss, K. C., commented in his address to the Authors' and Composers' Association of Canada in 1919 that writers and composers in Canada were living under an obsolete copyright law, a law which was inadequate and crude when it was passed in 1875 and which, by 1919, had "entirely ceased to meet with the conditions of modern life"(40). To further complicate the copyright issue in Canada, her citizens were governed by not only an outdated nineteenth century Canadian Act but also, as the discussion of the case of Joubert V. Geracimo will demonstrate, by a series of Imperial Acts passed throughout the nineteenth century that took precedence over the Canadian Act of 1875. Moss and others believed that the Canadian Statute and the Imperial Statute in force were unfortunately "both alike in this that they are entirely obsolete and very defective" ("Canadian" 48). To illuminate the development of copyright law in Canada, this paper will trace the history of the changes to Canadian and Imperial copyright and performing right legislation in force prior to 1924 in Canada, and review the court cases that arose out of the various pieces of legislation that applied to the theatrical scene in Canada during the nineteenth and first part of the twentieth century. Hopefully, the reader will come to a better understanding of the frustrations felt by the British and foreign authors who saw unauthorised productions of their works being mounted in Canada with little recourse to end the practice and by Canadian writers whose rights under the provisions of Canada's laws did not offer them the same international protection granted by the Berne Convention to nationals of other countries.
Confusion surrounds the history of copyright and performance right in Canada prior to 1924 partly because British copyright law took precedence to the copyright laws passed in Canada. Studying the movement for an international copyright agreement among Canada, England, France, and the United States reveals the financial reasons why producers in Canada chose to produce plays of British and foreign authors over Canadian works, and how the international copyright situation hindered non-Canadian authors or their agents from collecting royalties when their works were produced in Canada. A word of caution, however, before entering this murky world of nineteenth century international copyright. The American lawyer Eaton S. Drone wrote as early as 1879 in his A treatise on the Law of Property in Intellectual Productions in Great Britain and the United States "Meaningless, inconsistent, and inadequate statutory provisions, [and] ambiguous, erroneous, and conflicting decisions cover the law of copyright with doubt, difficulties, and confusion"(v). His comment was as precise and accurate for describing the dealings between European writers and American producers as it was for writers and producers in Canada.
Although the published form of a dramatic script enjoyed copyright in England and in her colonies from the time of the passing of "An Act for the Encouragement of Learning" during the reign of Queen Anne in 1710, the United Kingdom3 did not establish a performing right in a play (as distinct from a right to copy words on paper)4 until 10 June 1833 with the passing of "An Act to Amend the Laws relating to Dramatic Property," commonly known as the Bulwer-Lytton Act5—an Act which applied throughout Great Britain and all her dominions. The Act of 1833 affirmed a person's sole ownership in any original and unpublished manuscript of a play or musical composition, and sole property in that manuscript, whether to play, read, or sing it oneself or to have it played, read, or sung by other people in a theatre or elsewhere. Each non-authorised performance in Canada, or in any of the British possessions, should have resulted in the courts assessing "a payment of an amount not less than 40 shillings" to the authors or their representatives. This was the law of England and the British Empire until 1845, when a new Imperial copyright act determined that the representation of a dramatic or musical work upon a public stage constituted a publication, even if the work existed only in manuscript form and was never printed. Once performed with the assent of the author, it became subject to the rights the author received under copyright law6 which included the stipulation that the "action or proceedings must be brought, sued and commenced, within twelve calendar months after the offence" (Hamlyn 165-167). As a result of the time constraint in an era when news travelled slowly, foreign writers were unable to launch suits in Canada. Indiscriminate and widespread unauthorised productions occurred in Canadian theatres throughout the nineteenth century and the first decades of the twentieth century.
The acts of 1833 and 1845 protected British and Colonial authors, provided their works were duly copyrighted, in London, throughout England and, theoretically, throughout all of the colonies in the British Empire, but allowed them no protection in other countries. International protection began for authors holding English copyright with the International Copyright Act, 1844, which created reciprocal rights between Great Britain (including her colonies) and any nation who entered into a treaty with Great Britain. With the signing of treaties with Prussia (13 May 1846), France (3 Nov. 1851), Belgium (12 Aug. 1854), and Spain (7 July 1857), authors in those countries were granted the sole right of performing, or having performed, their dramatic compositions in England and throughout the British Empire and the right to sue for unauthorized productions. Here again, however, because of the requirement of filing an action within twelve calendar months, theatre managers in Canada did not comply with the law regarding foreign works, and those authors received only illusory protection.
Since Canadian royalties during the mid-nineteenth century were not as significant as those being lost on American stages, it is not surprising that British and foreign dramatists were well advised to focus their efforts upon gaining recompense for their works being produced in the United States of America rather than Canada. An agreement similar to that entered into by the European countries, however, was to prove impossible with the United States. America's first copyright act of 1790 and the subsequent act of 1831 offered copyright protection only to American citizens and to foreigners residing there. Neither law made reference to performance rights; therefore, under American law, anyone might perform an American or foreign dramatic work without its author's or proprietor's consent and without the payment of any royalties.7 In August 1856, Washington passed an Act that created a performance right, but only for works copyrighted in America. The new Act provided that American copyright thereafter granted in any dramatic composition should be deemed to confer along with the sole right to publish the work, and the sole right to act, perform, or represent the play, on any stage or public place. These rights, however, were limited to works first published in the United States from plates created there. Effectively, this permitted only American citizens and foreign nationals living in the United States to secure a performance right in the works they had created. There was no protection whatsoever for plays copyrighted outside the United States; thus, the earlier American piracy of theatrical works created abroad continued. Astute managers kept an active eye on the foreign stage and produced foreign successes without royalty payments to the playwrights. The law indicated that there was no avenue for people living outside the United States to receive royalties for their performing rights.
The American theatre managers, however, had no protection from competitors doing the same thing, so they devised a solution to circumvent the law and to reward foreign authors for their plays that gave the managers an exclusive right to perform the piece throughout the United States. To protect their American performing rights, foreign authors were advised to follow the lead of Dion Boucicault, who secured British and American copyright by claiming to work in collaboration with an American, and registering his copyright simultaneously in England and the United States. Commenting on Boucicault's strategy, The Orchestra of 1865 wrote the following: "Is this not a wrinkle for musical composers? Enlist a Salem Scudder, or Phineas B. Green to help [Michael W.] Balfe with his 'Satanella' or [William V.] Wallace with his 'Lurline'—and secure to these splendid fellows some share of the lucre which at present Yankee impressarii have all to themselves"? ("Collection").
Thomas William Robertson, when he wrote his comedy Ours, was asso- ciated nominally in its authorship by Mr. Browne, i.e. Artamus Ward. When Robertson wrote Caste in 1867 after Ward's death, he refused to have his work published in England or America and chose instead to sell the manuscript and the American performing rights to Lester Wallack of New York and to produce the play himself in London. His scheme was short circuited by Mr. and Mrs. Florence, who then produced the play at the Broadway Theatre, New York. Florence had attended Robertson's production in London, and claimed to have memorized all the lines as they were performed before him. Robertson brought an action against Florence, however, since the 1845 British Copyright Act determined that the representation of Caste on the London stage constituted a publication; since there had not been a simultaneously registered publication in Washington, however, the American courts decided in favour of Florence. Commenting on the proceedings on 7 September 1867, The Orchestra noted that "legally Mr. Robertson has no power to dispose of his own genius" ("Collection").8
This ruse of claiming to work in collaboration with an American, however, failed Sir William S. Gilbert and Sir Arthur Sullivan when they attempted to protect the rights to The Mikado in America by claiming to have worked in collaboration with an American. They brought George L. Tracy, of Boston, to England and paid him to create the orchestration for the work. Tracy then returned to America, copyrighted the work, and assigned his copyright to Gilbert and Sullivan. When James C. Duff announced his intention to produce The Mikado at the Standard Theatre, New York, Helen Lenoir, in charge of D'Oyle Carte's American interests, sought an injunction against James Duff to prevent him from producing the work. Judge Wallace ruled that Tracy had only copyrighted the orchestration in America, and that since Duff had purchased the libretto, vocal score and pianoforte arrangement in England where they had been performed and published, and had then employed a musician to compose a new orchestration of the operetta, he was free to present the work without payment to Tracy, Gilbert, or Sullivan.9 John Tracy's orchestration alone received protection, and anyone in America was free to produce The Mikado provided Tracy's orchestration was not used.
The years following the Civil War saw an expansion of theatre in America, and the introduction of principles more and more commercial in nature. Seeing the potential financial reward in obtaining exclusive American performing rights to foreign works, theatre managers did not object to the passing by Washington of the Copyright Act of 1870 which included the concept that foreign authors held common law copyrights and performing rights in unpublished works. This law permitted the assignment of these dramatic or musical rights to an American agent prior to publication, who could then register the manuscript in Washington and secure an exclusive right to perform, or have performed, the work in America. On occasion, the American agents simultaneously negotiated and were granted the Canadian performing rights as well, a concession British and foreign authors were willing to grant since they had been unable to receive any protection from unauthorised productions in Canada.
An example of how one such agreement worked can be seen in the dealings of Sir William S. Gilbert and Horace Wall over the performance rights to Engaged in 1879. Gilbert assigned the American and Canadian rights10 to Wall, who agreed to pay 60% of all the monies he earned from the play to Gilbert. Wall then entered into agreements with the managers of the Park Street Theatre, New York, the Park Street Theatre, Boston, the Chestnut Street Theatre, Philadelphia, and the Grand Opera House, Baltimore, to stage productions of Engaged and to share equally in the profits.11 As a result, Gilbert realized $3,910.34 from a nine-week run in New York, $911.25 for a two-week run in Boston, $1,841.48 for a seven-week run in Philadelphia, and $120.00 for a one-week run in Baltimore. Wall sold the Canadian rights to George F. Rowe at $15.00 per evening and $10.00 per matinee performance. Rowe, supported by the E. A. McDowell company, then undertook a four-week tour of southern Ontario and Montreal between 19 April and 14 May 1879, and paid a total of $280.00 in royalties to Wall of which Gilbert received $168.00.12
By assigning his American and Canadian rights to Horace Wall, Gilbert received more than he and his partner, Sir Arthur Sullivan, had realized from unauthorized North American productions of H. M. S. Pinafore throughout the U. S. and Canada.13 Wall had been able to prevent Engaged from being produced in the eastern United States prior to the New York opening. Working with Wall prior to the publication of Engaged, however, still did not prevent unauthorised copies of Gilbert's play arriving in America. As Wall would write to Gilbert on 23 February 1879, the day after the show opened in New York: "This country is full of books & M. S., however, & I am selling rights as fast as I can [...]. Engaged got a pretty good circulation here sure. Mr. & Mrs. DeVere & several other thieves arrived here within the past year."
Thomas Macguire had produced the play in San Francisco under the title of He Would and He Would Not, but, as Wall noted in his letter to Gilbert, they could "do nothing in this matter as a lawsuit will cost a great deal to pursue a man 3000 miles away." In Canada, E. A. McDowell ended his tour of Engaged with George F. Rowe on 14 May 1879 in Chatham, Ontario, and then took his company to Winnipeg to begin a season on 19 May. With J. H. Gilmour in Rowe's role of Cheviot Hill, the company produced the play on 13 and 14 June, and continued to perform it, along with Gilbert and Sullivan's H. M. S. Pinafore, throughout the summer in Western Canada and the United States without paying royalties for any performance rights.14 Perhaps Wall deemed E.A. McDowell in Winnipeg also too distant to pursue.
Had Wall and Gilbert decided to pursue a case, they would have had to prove that McDowell had infringed their performance right under British statutes in force in Canada, because the play Engaged had no status under Canadian law. The Canadian Copyright Act15 of 1875 only granted copyright for twenty-eight years to any person living in Canada or in any other part of the British dominions; the act recognised the copyright for a similar period of a citizen of any country having an international copyright treaty with the United Kingdom provided the work was printed and published, or reprinted and republished, in Canada. British and foreign authors whose works had never been printed or published in Canada received no copyright or performance right protection under Canadian law. They did, however, receive protection in Canada under British law if they had registered their work in England or in a country with a reciprocal treaty with England. This greatly upset Canadian publishers and authors because the works they registered in Ottawa under the Canadian Act received protection only in Canada, and not in England or in any other British possession or foreign country. Only if a Canadian copyrighted play was also registered in England would that work be protected in England, the British Empire, and in all countries with formal treaties with England.
As the financial return to authors for performing rights increased in the 1870s and 1880s, there was a concerted effort throughout Europe to offer authors better protection of their rights through international agreements as opposed to treaties between individual countries. The first such agreement occurred on 8 September 1886 when the final protocol of the International Convention for the Protection of Literary and Artistic Works, commonly referred to as the Berne Copyright Convention or the Berne Convention, was signed by Belgium, France, Germany, Great Britain, Haiti, Italy, Liberia, Spain, Switzerland, and Tunis. France, Great Britain, and Spain specifically included their dominions, colonies, and possessions in the agreement. As a result of the signing, national copyright laws throughout Europe and the British Empire had to be revised to incorporate the provisions of the international convention. The British Parliament thus passed The International Copyright Act, 1886, to eliminate the discrepancies between existing British statutes and the Berne provisions and to address an outstanding colonial grievance. After 1886, work registered in any British possession was given validity throughout the entire British Empire. As a result of the Berne Convention, work legally copyrighted in Canada would for the first time be protected in England and throughout those countries that adhered to the convention. In law, works copyrighted in any of the countries who signed the Berne Agreement were also protected in Canada, but, in reality, piracy continued unabated.
This did not mean, however, that no action was taken in Canada to curtail the practice during the nineteenth century. In an interview with a reporter of the New York Mirror, granted after the unfavourable American court decision regarding The Mikado, Helen Lenoir commented that it was her intention to prohibit unauthorized productions of the work in Canada:
I shall probably take action against one or two people who intend taking The Mikado into Canada. About eight people wanted to make arrangements with us for the right to produce the opera there, but I have practically arranged with Mr. Stetson.... Canada being British Territory, the English Copyright holds the same as in England. The Mikado has not been played there yet, and one or two injunctions have been secured in the past on the older operas in our list. (17 Oct. 1885)
Her words were directed in part towards Eugene A. McDowell, who, when he failed to negotiate the Canadian rights to The Mikado in the summer of 1885, had George Fawcette Rowe incorporate selections from the work into his new musical drama entitled "Wedding Bells," which opened at Elmira, Ontario, on 31 August 1885 (NYM 15 Aug. 1885). McDowell, however, avoided prosecution for infringing the work by performing only a short run in Ontario, prior to moving the production to San Francisco where he was free from prosecution. Following this incident, Lenoir and John Stetson, the Boston manager who had negotiated the New England and Canadian rights to the operetta, failed to obtain an injunction against the Grau Opera company's production of The Mikado in Winnipeg during the winter of 1886. The Winnipeg judge, however, did require Robert Grau "to leave behind seven per cent of the gross receipts as an earnest that he would appear to defend" (NYM 6 Feb. 1886), which was forfeited when he failed to return to Winnipeg. A year later in the Spring of 1887, Stetson's lawyers were more successful when a Toronto court found the Harmony Club guilty of producing Patience without obtaining permission and awarded $150 to Gilbert and Sullivan's agent (NYM 12 Nov. 1887). After the Toronto decision, Stetson's lawyers were able to secure injunctions more readily, as exemplified when the law firm Weldon and McLean's successfully applied on 12 March 1890 to a Saint John, New Brunswick, court to prevent the Boston Opera Comique company from performing pieces from Ruddygore and The Gondoliers (NYDM 22 Mar. 1890). Encouraged by Lenoir and Stetson's limited successes, other individuals and companies began to seek injunctions for their works as well. When the Gilbert Opera Company announced that the presentations at the Academy of Music, Halifax, would include both Iolanthe and The Mikado, no action was taken by Stetson; however, John and Charles Boosey, of London, England, engaged the Halifax legal firm of Graham, Tupper, Borden and Parker to obtain an injunction against the performance of Edmond Audran's opera, La Mascotte. Although the opera had been produced in Canada several times without any royalty being paid, the Halifax court granted an injunction prohibiting the production (Acadian Recorder 5 Apr. 1888). Since little advance notice of performances was given, however, it was nearly impossible for those American managers holding the rights to British works in Canada to have sufficient time in order to secure injunctions, and, as a result, unauthorized productions continued throughout Canada.
International efforts, however, continued to focus primarily on the United States of America, which did not sign the Berne Convention and remained outside its provisions. During the 1880s, American authors and managers became increasingly aware that their works were being produced abroad with no recourse to prevent such productions. The New York Mirror, a strong voice advocating that the United States work toward international copyright, constantly made reference to American touring companies producing unauthorized American works in Canada: Lisetta Ellani in "Fun in a Boarding School" at the Zoological Gardens, Toronto (14, 21 July 1883); J. H. Gilmour in "My Partner" at Montreal and Ottawa (13 June, 15 Aug. 1885); Wilson Day and Annie Bird at the Theatre Royal, Montreal, in a repertoire of "stolen plays" which included "Nobody's Child," "Fanchon," "Uncle Dan'l," "Bob the Newsboy," and "Carrots ('49)"(18 June 1887); the Mason and Morgan company in "Only a Farmer's Daughter," "Phoenix," and "A Messenger from Jarvis Section" at St. Thomas, Ontario (23 Nov. 1889); and J. J. Williams company in "Peck's Bad Boy" at Winnipeg (16 Mar. 1889), to list but a few. Of more concern to the New York Mirror were the companies who operated primarily in Canada and based their repertoire on American works. In addition to E. A. McDowell mentioned earlier, the Albert Tavernier company was first called to task for playing "The Mighty Dollar" in Halifax (17 June 1882), and, when the Mirror's editor began his list of "Some Notorious Play-Pirates," the company appeared prominently (9 July 1887). After announcing their intention to reform and not to perform unauthorized productions, the company changed its name to the Ida Van Cortland company and was dropped from the list as of 27 August 1887. Five years later, however, the Mirror announced that "Miss Van Cortland seems to have joined the play pirates" after her company produced "The Galley Slave," "Forget-Me-Not," and "Peril" at the Park Theatre, Dayton, Ohio (23 Jan. 1892). The newspaper also called to task Will S. Harkins for his tour in Canada of "Youth" (8 Apr. 1882), and W. H. Lytell for his production of the same play in Winnipeg (23 Feb. 1884). Harry Lindley, who toured extensively in Canada with American works, received the greatest rebuke from the New York Mirror after he wrote in a letter to the editor "I am a Canadian pirate at present, and am outraging no law while there, and in the States," and then proceeded to defend his actions, along with the other "500 Western pirates," in producing unauthorized productions (21 Jan. 1888). Discovering how extensively their works were being pirated abroad and realizing that managers such as Lytell were legally justified in producing American works in Canada without compensation, the American theatre practitioners and composers joined their voices with the New York Mirror in asking Congress to undertake steps to protect American works abroad.
Bowing to the creative community within the United States and to international pressures, Congress passed the Chace Act of 1891. This act was not a new statute but a series of amendments to the American copyright act of 1870. Generally, it allowed foreign authors to obtain U. S. copyright provided they fulfilled the requirements of the American law, and for Americans to obtain copyright in a foreign country provided they complied with the law of the other nations. For foreigners or Americans to obtain American copyright, however, the Chace Act specifically stated that the works needed to be first "printed from type set within the limits of the United States, or from plates made therefrom." This condition, which had existed since the passing of the 1856 Act, continued Washington's policy of self-protection of the American printing industry, and greatly upset Canada's printing trade.
Immediately upon the passing of the Chace Act, Benjamin Harrison signed his first proclamation, covering, among others, Great Britain and the British possessions, and the relationship between British and American publishers improved. Simultaneous16 publication became the rule on both sides of the Atlantic, and branch houses of the publishing industry prospered. Since simultaneous publication curtailed piracy by American theatre producers, income to publishers and writers increased. British and European authors then turned their attention to the pirated works being produced in Canada in earnest. Improvements in transportation and communication had overcome the provision of the 1845 Act that called for the action to be brought within twelve calendar months, but other requirements, set down by Canada's civil courts throughout the nineteenth century, produced additional impediments for authors who wanted to launch a court action for an unauthorised production of their work. These requirements included the following:
Faced with so many difficulties, it is not surprising that authors and their representatives at the start of the twentieth century were reluctant to launch a court case to recoup lost revenue from an infringement of their performance right. They did, however, begin to solicit for payment when they heard of a group planning a production. They wrote letters to producing groups and reminded them that under the provisions of the law a performance right must be negotiated with the author or the assignee prior to the production. Upon hearing of a possible performance of The Pirates of Penzance by the Regina Musical Society in the fall of 1899, D'Oyle Carte's Canadian agent in Montreal requested payment of a thirty-five dollar royalty fee. The Society consulted a local legal firm to determine whether they were liable for the fee. Noting that various Gilbert and Sullivan operas had been produced in almost every town west of Lake Superior—Winnipeg, Brandon, Calgary, Lethbridge, Nelson, New Westminister, and Vancouver—without the payment of royalty fees, and that The Pirates of Penzance had been included among these productions, the local lawyer advised not paying any royalty. The Regina amateurs decided to ignore D'Oyle Carte's demand for royalties. Their decision appeared justified when Carte's agent attempted to file a restraint injunction against the performance of the work in Regina since the local judge did not consider the evidence adduced for copyright sufficient. The performance went ahead on 27 and 28 December 1899 at the Town Hall, Regina.
Despite the distance from Montreal and all the requirements needed to prove infringement of the performing right, D'Oyle Carte filed suit not against the unincorporated Regina Musical Society, which could have summarily disbanded or declared bankruptcy (a common tactic employed by theatre groups facing such a law suit), but against the officers of the Society. Despite D'Oyle Carte's proof that he had been assigned the performance rights to The Pirates of Penzance in Europe, England, and all her possessions by Gilbert and Sullivan since 18 December 1893, Judge J. Richardson of the Territorial Court dismissed the suit brought against the Regina Musical Society on technicalities. He ruled that the lawyer for the plaintiff failed to prove sufficiently that the identity of the produced opera was the same as the one written by Gilbert and Sullivan and assigned to D'Oyle Carte. This ruling came despite the evidence of one of the defendants, T.A. Briggs, who was the Secretary-Treasurer of the Society, and an audience member, Henry LeJeune, both of whom testified that they knew the opera in question and the work performed was, indeed, Gilbert and Sullivan's opera. In addition, W. C. Hamilton, Q. C., advocate for the plaintiff, produced the minutes of the Society's meetings that clearly indicated the group's awareness of the D'Oyle Carte rights. The judge discounted the evidence of the two witnesses because it was based on memory of a work heard previously and not on an actual examination of the two scripts in question. (Because of this ruling, future plaintiffs throughout Canada hired stenographers to visit the theatres in question and record extracts of the dialogue.) Then, because the scripts and music had been rented and subsequently returned to a New York company, and because no one had actually made a direct comparison between the opera produced and the Gilbert and Sullivan work during the Society's meetings, he gave no weight to the evidence supplied by the minutes. Judge Richardson also dismissed the evidence of the theatre programme and poster which credited the authorship of the work to Gilbert and Sullivan because the witness had referred to them as copies. Despite the recognition of D'Oyle Carte's performance right in The Pirates of Penzance by the Society and the court, Judge Richardson found the Regina Music Society not guilty as a result of these "technicalities".
D'Oyle Carte did not let the matter rest, and instructed his lawyers to appeal the decision. The appeal was heard on 3 and 5 December 1900 by the Supreme Court of the Northwest Territories. That Court found that Judge Richardson had erred in ruling the evidence of Briggs and LeJeune was not admissible and that their memories were sufficient if an actual comparison of the two works was not possible. The court also ruled that Judge Richardson had erred by not accepting the programme and poster in evidence, because, although referred to as a copy by the witness, they were, in fact, the actual programme and poster distributed by the Society at the theatre and throughout Regina. The Supreme Court, therefore, overturned the lower court's decision, and found against the defendants. Then, by using the minutes of the Society, the Court decided against all the executive committee members who had participated in meetings that discussed arrangements for the production. This included J. S. Dennis, in charge of the production, T.A. Briggs, Secretary- Treasurer of the Society, and eight other executive committee members: Balfour, Brown, Goggin, Hamilton, Hogg, Martin, Napier, and Pocklington. The court, however, attached no accountability to Mr. Haultain, the President of the Society, because, although he had participated in the performance, the minutes showed that he had not participated in the executive meetings (Beck 31-59).
This case firmly established the concept of performance right in works registered under British copyright law. Spurred by the success of D'Oyle Carte, European authors began a prolonged campaign in the press of France and Canada to insure their rights under the Berne Convention. Thus, Jules Mary, under instructions from the Société des Gens de Lettres of Paris, entered an action in Montreal, in the latter part of 1905, against B. Herbert who had infringed on the copyright of Mary's novel entitled Tante Berceuse. The Hon. Justice Fortin ruled that the Imperial statute of 1886, called "The International Copyright Act," did apply in Canada and that foreign writers had the right to vindicate their rights in Canada in accordance with the provisions of the Berne Convention (Languedoc 334-342). On 28 April 1906, the Quebec Court of Appeal unanimously confirmed his decision, and the works of foreign authors covered by the provisions of the Berne Convention finally received copyright protection in Canada. Problems still surrounded the question of compensation to authors for the infringement of their performance rights in musical compositions and plays by Canadian producers.
The legal requirements imposed upon those launching an action within the Canadian court system limited the ability of foreign authors to win a victory over those infringing their performance rights. Canadian managers continued to take the works of French and Belgian authors, make slight changes, and perform them with no payment of royalties. Since the typical theatre season of the time covered forty weeks, with the bill changing weekly, foreign authors would need to institute forty separate law-suits and to furnish a security of between $500 and $1,000 for each case. Knowing that its season would be over before a judgment could be rendered by the court, a theatre company only had to dissolve and to re-organize itself under a new business name. However vindicated in law, the authors lost part or all of their security deposits to pay the court costs.
An example of this can be seen in the dealings of the Parisian Theatre of Montreal. During the week of 19 May 1910, under the assumed title "Sherlock Holmes," and without any indication of authorship, the theatre produced a oneact comedy written by R. Berton and entitled "En lisant Sherlock Holmes". Representatives of the Société des auteurs, compositéurs et éditeurs de musique of Paris discovered the deception, and proceeded to gather all the duly authenticated and certified documentation necessary for them to enter an action on behalf of the author. After posting the necessary security, they entered an action on 27 June 1910 in the Montreal Superior Court. Judgement in favour of Berton, the author, was rendered on 17 December 1912. By that date, however, the Parisian Theatre had ceased to exist, and the author had to meet the court costs of $100 from his deposit.
The dealings of the Théâtre des Nouveautes, Montreal, added a new dimension to the problem facing authors. During the season of 1912-13 this company, located in the heart of Montreal, produced a large number of French and Belgian plays over a ten-month season. Its managers never acknowledged the numerous summonses served on them on behalf of the injured authors. The authors, however, were unable to institute proceedings against the Théâtre des Nouveautes because the managers had never registered the company as a theatre before they began operating and producing shows, as was required by law. While the Parisian Theatre ceased to exist once faced with an action, the Théâtre des Nouveautes never legally existed and, therefore, no legal action could be filed in court or taken against the theatre or its management (Commons, 1915 198).
The infringement of foreign authors was not limited to Francophone repertory companies. The Aborn Opera Company of New York produced Cloches de Corneville (The Chimes of Normandy) at the Princess Theatre in Montreal during the week of 18 November 1912 and at the Royal Alexandra in Toronto during the week of 25 November 1912. Editor Choudens, of Paris, had acquired full property rights in connection with this piece, and had, in turn, transferred to James Williams & Co., London, the right to produce that musical work throughout Great Britain and the Colonies. After securing all the necessary documents, an action was taken against the Aborn Opera Company on 11 October 1913, months after the company had returned to the United States. A judgement by default was rendered against the company, but, since the company was no longer within Canada's borders, the representatives of the author received no recompense and had to pay all the court costs for the action (Commons, 1915 198-199).
The protection of international performance right grew more complicated in the first quarter of the twentieth century with a shift of interest from sheet music and performing rights in theatres to film rights and the reproduction of music on gramophone records or other mechanical means. In 1908 the Berlin Revised Convention was signed by most industrialized nations (with the notable exception again of the United States). The signatories agreed to legislate a uniform term for the duration of copyright and to secure and promote uniformity of copyright laws throughout the signatory countries. The agreement applied to the British Isles and all British territories, but would be effective in the self-governing dominions—Canada, Newfoundland, Australia, New Zealand, and South Africa—only after these countries adopted it by legislation in their own parliaments. England revised its copyright legislation and passed the Imperial Act of 1911, which was then adopted by the British self-governing dominions with the exception of Canada.
Although some Canadians, such as Sir Daniel Wilson, President of the University of Toronto, saw the need to revise Canada's copyright legislation to agree with England's revised copyright legislation that reflected the provisions of the Berlin Revised Convention as a "moral claim of rightful proprietorship in the products of literary industry," the general population, Canadian authors, and the publishing industry pushed for other agendas when Canada's Parliament began discussions on new copyright legislation (Wilson 4). During the nineteenth century, Canada's book reading public had become accustomed to purchasing inexpensive American reprints of published materials, and considered "anything that interfered with the cheap circulation of popular literature" as "an encroachment on popular rights" (Wilson 4). As Richard T. Lancefield, the librarian of Hamilton, noted in a letter to the Toronto Mail, "[I]t has often been a difficult task to make the British author see where his best interests lie. His best interests have not lain in compelling Canada to buy his publisher's high priced English editions; still less have they lain in shutting us up to the use of unauthorized American reprints" (Wilson 10). To Lancefield and others, inexpensive books were necessary to improve the education of the masses, and, therefore, they opposed any new copyright legislation without concessions from England on the importation of inexpensive reprints into Canada from the United States. Canadian authors, on the other hand, demanded Parliament seek concessions from the United States on the manufacturing clause – for Canadians to obtain copyright protection in the United States their work must first, or simultaneously, be published in America from plates created there – prior to any new copyright legislation. The publishers and workers in the printing trades supported the Canadian authors' position regarding the American manufacturing clause, but had a different opinion regarding the importation of American reprints of English and foreign works than the general public. Years before, in 1889, Canada had passed a copyright law that England refused to approve. One of the provisions of this Act provided that, if an English or foreign work was not printed in Canada within a month of its publication elsewhere, a "license shall be granted to any applicant agreeing to pay the author or his legal representative a royalty of ten per centum on the price of each copy or reproduction" (Wilson 13). England believed this provision abrogated an authors' rights in their own property and was unjust. Canadian publishers, who had for years watched American publishers grow wealthy from unauthorized publications of British and foreign works, believed that this provision was necessary to guarantee some financial return to the authors and to Canadian publishers, and wished this provision incorporated into any new legislation. Pressure from these three interest groups prevented the passage of Bill No. 184, introduced by the Hon. S. Fisher, Minister of Agriculture, on 26 April 1911, that was intended to amend and revise the Copyright Act, 1875, and frame a new act to reflect the provisions of the 1908 Berlin Revised Convention.17 With the failure of this bill, not only did the provisions of Canada's 1875 Act continue, but all the provisions of the British Statutes and Amendments prior to, but not including, the Imperial Copyright Act of 1911 remained in force in Canada, although they were no longer valid in England, her dominions, or her colonies, and, indeed, ran counter to some Canadian legal opinions.
In an attempt to clear this confusion, the editor Joubert of Paris brought a case against the Liberty Theatre of Montreal. During the eight-week period between 16 December 1912 and 13 February 1913, this theatre infringed his assigned performance right by presenting fourteen one-act comedies on six occasions; by removing the author's names from those works; and by presenting three of the plays under false titles. Believing that the provisions of the Berne Convention of 1886 and the Imperial copyright statutes passed prior to 1911 for the protection of the rights of foreign authors and playwrights were still in force in Canada, Joubert launched a suit on 15 June 1913 seeking 40 shillings (the amount permitted under the Imperial Act of 1833, which came to $10 Canadian) for each representation (i.e. $840); $50 for each play represented with the author's name removed (i.e. $700); and $100 for each play where the title was changed (i.e. $300). The total of the suit was $1,840. Since the small theatre did not print programmes, Joubert authorized photographs to be taken of the posters outside the theatre and sent a stenographer to record extracts of the dialogue for comparison. This evidence made it easy for Superior Court Justice J. Monet to rule that Joubert's lawyer had indeed proven the allegation of copyright infringement. Surprisingly, however, Justice Morin dismissed the demand of $1,840 by Joubert, citing the following three reasons: first, that, as a member of the Société des auteurs, compositéurs et éditeurs de musique of Paris, Joubert had no status to bring a suit and that only the Society itself could enforce his rights; second, that there was no right of authors to be infringed by a production in a moving-picture hall, such not being a theatre in the true sense of the word; and, finally, that the respondents acted in good faith. This decision greatly upset Joubert and the Société des auteurs, compositéurs et éditeurs de musique. The Société was particularly incensed at the decision because, during the theatre season of 1913-14, it had collected approximately $2,000 in France to be paid to French-Canadian authors through the Bank of Hochelaga. Joubert's costs had been approximately $1,500 and an appeal would cost about the same. Not only was the cost a problem, but the time involved was also problematic. Justice Monet announced his findings on 21 November 1914 – nearly sixteen months after the suit was launched and nearly two years after the first infringement. Nevertheless, Joubert persisted while the Société increased its lobbying of Canadian politicians to do something to rectify the situation.
Less than three months later, on 15 February 1915, the Hon. R. Lemieux (Rouville) rose in the House of Commons and moved the following resolution: "That, in the opinion of this House, stricter measures should be taken for the carrying out of the Berne Convention relative to copyright." In his speech that followed, he clearly illustrated the situation as it existed at the time:
Now it is a matter of experience that most counterfeiters form partnerships which are practically insolvent, which are likely to shift or dissolve at any moment; they are up to posted, the French and Belgian author, whose works have been counterfeited in Canada, hesitates and rightly so, to comply with all such requirements of our procedure, and to run the risks of a lawsuit with possibly no other satisfaction as regards himself than the paying of a heavy bill of costs. The practical result is that Canadian counterfeiters are allowed to go scot-free.
Apart from itinerant or occasional companies which shamefully delve into the works of French and Belgian authors, there exists today, in Montreal, as well as in other localities of the province of Quebec, over ten theatres which have recourse to counterfeiting and dispense paying any royalties to authors, with full knowledge of the law. And in spite of it all, nothing can be done.
Itinerant or occasional troops give no security; they disband or cross the frontier before any process of law can be taken against them. The author wronged in that way has no possible recourse against the owner of the hall or theatre where these itinerant companies have given their illegal performances, though the owner of the theatre often shares in the profits secured by means of these unlawful performances. The English jurisprudence exonerates the theatre owner. (Commons, 1915 197-199)
The House was moved by his speech, and Sir Robert Borden rose to assure the member that "his observations will receive the careful attention of the Minister of Agriculture," under whose responsibility copyright legislation fell. Unfortunately, the interests of the general public, the authors, and the printing and publishing trade continued to pressure the House and no revised copyright bill emerged from the Minister of Agriculture's office. The Members of Parliament refused to draft or consider a new Copyright law that would incorporate the provisions of the Berlin Revised International Convention of 1908 without concessions from the United States on the manufacturing clause that meant that Canadian works must first, or simultaneously, be published in the United States to obtain copyright protection there.
Borden's government, nevertheless, realized that they must do something to end the illegal practices, and, as a result, the Minister of Justice (not the Minister of Agriculture) rose to introduce an "Amendment to the Section of the Criminal Code of Canada relating to Forgery of Trade Marks and Fraudulent Marking of Merchandise." This amendment was modelled on a similar bill that had been introduced in the House of Commons in 1909, but defeated in the Senate.18 The amendment consisted of two sections meant to curb two of the problems set out in the Hon. R. Lemieux's speech. First, Section 508A provided for a fine of up to $250 for performing a dramatic or operatic work or musical composition without the consent of the author, or, in the case of a second or subsequent offence, either to such fine or to imprisonment for a term not exceeding two months, or to both." Section 508B provided that any changing, or removal, of the title or author's name without written consent would result in a fine not exceeding five hundred dollars, "or, in the case of a second or subsequent offence, either to such fine or to imprisonment for a term not exceeding four months, or to both." This law quickly passed both Houses and received assent on 15 April 1915, exactly two months after the Hon. R. Lemieux first rose in the House (Acts, 1915 56).
Within six months, the first prosecution under the new law occurred. On 25 October 1915, Julien Daoust had presented the play Mignon at his Théâtre National Français, "a theatre where Canadian talent will flourish," and credited the work to himself. In fact, the play had been written by Alphonse Robbe and first performed in France on 23 December 1910. Judge J. Lanctot found Daoust guilty under both the provisions of Section 508A and 508B of the Canadian Criminal Code.19 After reading into the record the maximum fines under these two Sections, the judge then levelled a fine of only $5.00 on Daoust "as it is the first time that a case of this nature has come before this Court." The judge, however, gave a "warning at the same time that it will hereafter be severe to anyone committing a similar offence" (Fitzgerald 28: 293-294).
A court decision of more importance was rendered one year later on 6 November 1916. Two years after the Superior Court had adjudicated against Joubert, the Quebec Supreme Court made a ruling on his appeal in the case involving the Liberty Theatre. This Court overturned the decision of Superior Court Justice J. Monet, and found in favour of Joubert. The Supreme Court Justices ruled that the three main arguments offered by Justice Monet for his decision were flawed. Regarding Monet's judgement that Joubert had no right to be named as the plaintiff and that the court action must have been undertaken by the Société des auteurs, compositéurs et éditeurs de musique of Paris, the Supreme Court ruled that in France there were three such societies – the Société des auteurs, compositéurs et éditeurs de musique, the Société des auteurs et compositéurs dramatiques, and the Société des gens de lettres – but that none of these societies was the assignee of copyrights, and, therefore, they had no right to launch a copyright action in their own names. The Justices noted that the By-Laws of all three societies stated that they would advise and aid their members in legal matters pertaining to copyright and performance right, but, when matters came before the courts previously, the author or the assignee had always been named as the plaintiff and never the societies. On the second ground of the judgement that the performance did not take place in a theatre proper, but in a moving picture hall, they found that the author's rights could not be refused because the performance did not take place in a proper theatre because it is the representation of the play itself that is forbidden. As to the third ground of the judgement that the defendants acted in good faith, the Court could not find
any trace of good faith in the evidence on record. In his evidence, F. Delville, stage manager for Geracimo, admits that the plays in question in this case have been represented after booklets having on their covers, with the name of the publisher Joubert, this note:—"All rights of translation,20 reproduction and representations reserved for all countries."
Not only no attention was paid to such formal reservation of all rights, but on all posters, all names of authors have been systematically suppressed and the titles of some plays have also been changed. Moreover, supposing that there was good faith on the part of the respondents, that would not constitute, in a case like this, a bar to the action. The responsibility of the respondents comes from the law (Fitzgerald 35: 683-698).
After finding in favour of Joubert, the Justices then traced the various copyright legislations back to the Imperial statutes of the 1830s and 1840s (which they noted were still in force in 1916) in order to determine the amount of damages that could be awarded. Using the Act of 1833 they found that the damages could not be less than 40 shillings for each unauthorised representation. Since the British Statutes did not list any monetary penalty regarding the removal of the author's name without consent or changing the name of the piece represented, the Justices did not determine any amount for these infractions. The Court then awarded Joubert the sum of $817 (40 shillings for each of the 84 unauthorised productions) and interest with costs of the court cases (over $3,000). Justice J. J. Pelletier disagreed with this majority decision of the Supreme Court, and wished to award the plaintiff additional monies. He believed that the Canadian Courts were not bound by the damage provisions granted in the 1833 Imperial Act and had a sovereign power to weigh the damages and discretionary powers as to the amount to be awarded. The court's decision was appealed to the Supreme Court of Canada by the Liberty Theatre, but that court rejected the appeal on 27 March 1917.
By clearly defining the performance right of foreign authors in Canada through the Imperial Statutes and the amendments to the Canadian Criminal Code relating to Forgery of Trade Marks and Fraudulent Marking of Merchandise, the Canadian courts greatly reduced the piracy of foreign dramatic material in Canada by the end of the First World War. No longer would amateur groups such as the Regina Amateurs, or professional repertory companies such as the Parisian Theatre, the Théâtre des Nouveautes, and the Théâtre National Français, or American touring companies, such as the Aborn Opera Company, be free to pirate the works of British or foreign authors. Although British and foreign authors welcomed the efforts of the courts and the Canadian Parliament on their behalf, these measures did not solve the problems facing Canadian dramatists and composers with regard to phonograph records, film, and manuscript material. In the words of George H. Moss in his speech to the Authors' and Composers' Association of Canada, Canada continued to be "a laggard amongst the nations" when it came to protecting the interests of Canadian writers and composers, because they were living "under an obsolete copyright law, a law which was inadequate and crude at the time it was promulgated and a law which has entirely ceased to meet with the conditions of modern life"("Canadian" 48). Because the government had failed to introduce a new Copyright law, holders of Canadian copyright lacked the protection given to the authors in the signatory countries of the Berlin Revised Convention of 1908 and were still bound to the provisions of the Canadian Copyright Act of 1875 and the Imperial Statutes passed prior to 1911.
From the time of the Berlin Revised Convention in 1908, the Authors' and Composers'Association actively had campaigned for a new copyright legislation that would create a uniform term for the duration of copyright and secure the same protections enjoyed by authors in other signatory countries. Opposition to the passage of such legislation, however, came from the publishing industry and the printing trades21 who lobbied Parliament against a revision to the copyright act without concessions from Washington on the American manufacturing clause. The intensive lobbying by the publishers and printers resulted in Canada's Parliament passing the Copyright Act of 1921, which contained licencing clauses, Nos. 13, 14, 15, and 27, that would permit Canadian publishers to circumvent restrictions regarding the reprinting of works not published in Canada. Upon studying the Act, however, Le Droit d'Auteur, the official organ of the International Bureau of Berne on Copyright, expressed the opinion that the licencing clauses in the Canadian Act contravened the Berne convention. As a result, England refused to sanction the new Act and repeal the Imperial Statutes still in force in Canada until changes were made in the Act. Finally, after a nineteen-year wait, on 13 June 1923, Canada became a signatory country of the Berlin International agreement when her Parliament revised the Copyright Act of 1921 and removed the licencing provisions (Commons, 1923 2343-2346). Thus, after 1 January 1924, when the act came into effect, Americans received copyright and performance right protection in Canada by registering a work in Canada or any of the Berne Convention countries; Canadians, however, who desired American copyright would still need to publish their work first, or simultaneously, in the United States.
Although the failure of the Act to solve the manufacturing clause caused distress to the printers and publishers, Canadian authors for the most part embraced the new Act because it accorded them the same protection granted by the Berne Convention regarding foreign performance rights. For the first time, Canada's Copyright Act granted to Canadian authors and composers the same protection in foreign countries that foreign authors received in Canada.22 Prior to this act, Canadian law granted no copyright or performance right to Canadian copyright holders in registered works unless printed in Canada, but, with the new act, Canadian authors had their copyright and performance right fused and protected from the time of composition in Canada and in all countries adhering to the Berne Convention. Canadian dramatists and composers coming before British and foreign courts henceforth would be protected by the power of Canadian law and would find it much easier to prove an infringement to their works and receive compensation.
NOTES
1. Raoul Dandurand was called to the Senate in 1898 and was Speaker of the
Senate from 1905 to 1909. He was one of Canada's leading authorities on international
relations. In 1925, and again from 1927 to 1930, he was a representative
of Canada in the Assembly of the League of Nations, and served as
President of the Assembly in 1925.
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2. It seems unlikely that thousands of plays were being infringed daily, but that is
clearly what Senator Dandurand stated in the Senate: "Thousands of dramas and
comedies are played every day under such conditions throughout the land with
impunity and Canada's fair name is held in contempt in European intellectual
centres" (Holland and Bengough 271). It is difficult to ascertain accurately the
number of plays that were being pirated since producers employed false titles
and removed authors' names. Alexander Byers, of Chicago, the major supplier
of pirated work, published a catalogue of some 150 manuscript plays, which
bore disguised titles—"Euchre" ("The Phoenix"), "Divorce" ("Fate"),
"Flirtation" ("Peril") "Paste and Diamonds" ("Jacquette"), "Ultimo" ("Big
Bonanza"), "Woman's Devotion" ("Vigilantes")—all of which were produced in
Canada (NYM, 23 July 1887). Canadian groups, however, did not have to order
such works from Chicago because Miss H. Florence offered similar manuscripts
first from Preston, Ontario (NYM 18 June 1887), and then from Montreal
(NYDM 24 May 1890). J. C. Norton, also in Montreal, offered a similar service
(NYDM 7 Feb. 1891).
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3. The first law passed to cover dramatic performance right occurred on 19
January 1791 in France, as the result of agitation created by the writers of plays
in defence of their own rights, which protected them against the representation
of their works on the stage in France without their consent (Hurrell 107).
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4. In the fields of music and theatre research, confusion often arises from a failure
to distinguish between copyright and performing right. In a dramatic or musical
work, these two rights—the copyright and the performing right—exist side by
side, but they are quite distinct from one another, and may pass into different
hands. Copyright is the exclusive right of multiplying copies of an original work
or composition, and consequently of preventing others from so doing.
Performing right is the exclusive right of representing or performing in public
dramatic or musical works. The copyright can only be infringed by copying, the
performing right by representation or performance.
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5. Lytton (of Knebworth), Edward George Earle Bulwer-Lytton, 1st Baron, was a
British politician, poet, playwright, and critic, but is best remembered today as a
prolific novelist. His play, The Lady of Lyons, was probably the most frequently
produced work in British North America during the first half of the nineteenth
century.
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6. This legislation created in the mind that copyright and performance right is one
and the same thing.
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7. The theatrical law of the United States was based primarily on those aspects of
British statutory and common law in force at the time of the Revolution which
did not address the question of performance rights. See George B. Bryan,
American Theatrical Regulation 1607-1900. (Metuchen, N.J.:The Scarecrow
Press, 1993).
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8. American courts, however, forbade this practice of memorizing plays that
enjoyed American copyright. A court decision prohibited McKee Rankin, a
Canadian working in America, from performing "The Two Orphans," a play
which he had memorized and produced at another theatre (Brackett 85-86).
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9. The entire text of Judge Wallace's remarks is published in the New York Mirror,
26 September 1885.
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10. Prior to this, Manager Wallace of the Montreal theatre had announced his intention
of producing Engaged at his theatre (NYM 18 Jan. 1879).
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11. The arrangement with Henry F. Abbey at the Park Theatre called for a 50/50
split between Abbey and Wall of the profits over the first $2500.00 in weekly
revenue at the theatre. The arrangements with W. D. Gemmill of the Chestnut
Street Theatre was a 50/50 split of the profits over the first $2,000.00 in revenue
that went to cover production costs and salaries. Thus, W. S. Gilbert received
30% of the profits at each theatre after expenses. This 30% represented 60% of
Wall's arrangement with each of the theatres (Gilbert).
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12. Wall also sent out two American touring companies with the understanding that
the profits from the tours would be split 60/40 between Gilbert and Wall. Both
the companies, the Mordant and Evans Company and the Jane Coombes
Travelling Company, played three weeks and each generated only $50.00 in
profits. Thus, Gilbert received $60 in royalties after six weeks of these American
tours of Engaged (Gilbert).
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13. Within a year and a half after the first appearance of H.M.S. Pinafore in 1878,
over one hundred American theatres were simultaneously playing the piece. The
situation was not unique to North America. In an attempt to protect the rights to
H.M.S. Pinafore in Australia, Gilbert and Sullivan entered into an agreement
with J. C. Williamson granting him an exclusive performance right to the
operetta in Australia and New Zealand for one year at a cost of three hundred
English pounds. Prior to Williamson's arrival in Australia, "Pinafore-mania" had
already reached there and three productions had already been mounted
(Atkinson 51-53).
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14. The McDowell company played five weeks in Winnipeg and produced Engaged
on 13 and 14 June and H.M.S. Pinafore on 16 and 17 June 1879. The Manitoba
Free Press, 21 June 1879, did not mention any royalty costs of the productions
in its discussion of the troupe's expenditures: "Their receipts during the season
could not have been less than $5,500, averaging say $1,100 a week. But it must
not be imagined that all this is profit. Far from it. Doubtless $100 a day—counting
Sundays and all—will scarcely pay the expenses of the troupe, which are
pretty heavy, large salaries, hall rent, music, printing, and a thousand and one
little things which must be had for the proper productions of plays—besides
about $1,000 invested in railway tickets in Eastern Canada for the Winnipeg
trip. If these figures are correct, and we believe in round numbers they are, Mr.
McDowell will be none too well repaid for his risk and the hard labor he has
undergone during the season here."
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15. In Canada, the first piece of federal copyright legislation was passed in 1868
when Parliament re-enacted the Copyright Act of the Province of Canada as
stop-gap legislation to apply in the new Dominion. The first complete and original
copyright legislation in Canada was the Canadian Copyright Act of 1875.
This act, with some alterations, supplied the basis of copyright in Canada
between the years 1875 and 1924.
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16. The American courts had defined "simultaneous" as within two weeks. This is
what gave rise to the practice of "copyright performance." Since the British
Copyright Act of 1845 stated that a stage production constituted a publication,
the practice began of staging a public performance in England within two weeks
of registering the work in the United States of America.
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17. The Fisher Bill did not imply Canada's assent to the Berlin Act, but only prepared
the way for such assent provided an agreement could be reached with the
American government regarding the provision in their law which required that
works must first or simultaneously be published in the United States to receive
protection there. No agreement was forthcoming, and the Bill failed to be
passed before the September 1911 election which resulted in a change of
Government.
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18. According to the provisions of Bill 148, revisions to the Criminal Code, as proposed
in the House of Parliament in 1909, an unauthorized public performance
of a play "would result in a fine not less that $100 and not exceeding $500, or
30 days imprisonment or both, and for a second conviction to imprisonment
with or without hard labour for six months" (Commons, 1909 6769). The
Senators defeated this section of the bill because they objected to making the
infringement of performing rights into a criminal act. The Hon. Sir Mackenzie
Bowell spoke against this provision of Bill 148 on behalf of the amateur theatre
in Canada: "if an amateur corps should reproduce a dramatic work in a private
house, or in any place where they charge admission fees for charitable purposes,
it is made a crime by this clause" (Holland 682)
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19. The entry for Julien Daoust in The Oxford Companion to Canadian Theatre
notes that "Except for Le Triomphe de la croix ... (published in 1928), all
Daoust's works (about twenty-seven plays) remain unpublished and a number
have been lost."
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20. Despite this insertion of this claim on the publication, until the passing of the
Canadian Copyright Act of 1921, which was not proclaimed until 1924, any
Canadian citizen was free to dramatize any work of fiction into a dramatic form
and to translate any work into either of the two official languages provided the
new work was not a full and complete translation. This was also the practice in
England, until the passing of the British Copyright Act of 1911, which expanded
the definition of a translation to agree with the Berne Convention of 1908. The
British Act of 1911, however, never applied to Canadians.
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21. Sir Daniel Wilson, President of the University of Toronto, had warned against
the publishing trade's influence on Copyright legislation as early as 1892: "It is
treated as a mere question between English and Canadian printers and publishers;
as though the 'Idylls of the King' and the 'Decent of Man,' Carlyle's
'Frederick the Great,' or Bryce's 'American Commonwealth" were the work of
the type-setters" (Wilson 7).
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22. Although the provisions of the new Act provided that anyone who gave a public
performance in Canada (whether for profit or no profit) without the written consent
of the author was guilty of an infringement of copyright and liable to damages,
it was not until July 1936 that the Exchequer Court firmly established this
principle regarding amateur performances in Canada. The Court gave judgement
in favour of French dramatist Marcel Dubois, whose play "Qui Est Ce?" had
been produced by Christian Brothers of Quebec City, and rejected the argument
that the play had not been for profit (Montreal Star, 11 July 1936).
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"The Canadian Copyright Law – Some Interesting Opinions and Facts Concerning the Present Law Presented in a Recent Address Delivered by Geo. H. Moss." The Music Trade LXVIII, 14 5 April 1919: 48.
"A collection of newspaper cuttings relating mostly to the law of international copyright, 1831-1872." Scrapbook held in the British Library Reading Room. Shelfmark: 1889.d. 2 (53).
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Atkinson, Rosalyn, and Richard Fotheringham. "Dramatic Copyright in Australia to 1912." Australasian Drama Studies 11 (1987), 47-61.
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Brackett, J. Albert. Theatrical Law. Boston: The C. M. Clark Publishing Company, 1907.
Bryan, George B. American Theatrical Regulation 1607-1900. Metuchen, N. J.: The Scarecrow Press, 1993.
Drone, Eaton S. A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States. Boston: Little, Brown & Co., 1879.
Fitzgerald, C. E. T., C. B. Labatt, and I. Freeman, editors. "Rex V. Daoust." Dominion Law Reports Comprising Every Case Reported in the Courts of Every Province, and also the Cases Decided in the Supreme Court of Canada, Exchequer Court, The Railway Commission, and the Canadian Cases Appealed to the Privy Council, 28 Toronto: Canada Law Book Co., Limited, 1917: 293-294.
—, eds. "Joubert V. Geracimo." Dominion Law Reports Comprising Every Case Reported in the Courts of Every Province, and also the Cases Decided in the Supreme Court of Canada, Exchequer Court, The Railway Commission, and the Canadian Cases Appealed to the Privy Council, 35. Toronto: Canada Law Book Co., Limited, 1917: 683-698.
"Gilbert (William Schwenck) Sir, Correspondence and Papers." See "Letters and accounts, etc. of Horace Wall to Gilbert relating to the production of 'Engaged' in the United States of America and Canada." Add 49334. Vol. XLVI (ff. 285) 1 - 153. Manuscript Room, British Library.
Hamlyn, Clarence. A Manual of Theatrical Law. London: Waterlow & Sons Limited, Printers, 1891.
Holland Brothers, eds. Debates of The Senate of the Dominion of Canada, 1909. Ottawa: Printed by C. H. Parmelee, 1909.
Holland and Bengough, eds. Debates of The Senate of the Dominion of Canada, 1915. Ottawa: Printed by Joseph De Labroquerie Taché, 1915.
Hurrell, Henry. Copyright Law And The Copyright Act, 1911. London: Waterlow and Sons.
Languedoc, W. C. Redacteur en Chef. "Hubert V. Mary," Les Rapports Judiciaires de Québec Publiés par le Barreau de la Province de Québec, XXIX. Montréal: Eug. Globensky, 1906: 334-342.
Wilson, Sir Daniel. "Canadian Copyright." Proceedings and Transactions of the Royal Society of Canada for the Year 1892, Section II. Ottawa, 1893: 3-18.
Newfoundland:
An Act on the importation of Books and the Protection of British Authors,
Consolidated Statutes, c. 53, p. 307. 51 Vict. c. 20, (1874).
An Act respecting Copyright, (May 1888).
An Act to amend the Law relating to Copyright. 53 Vict. c. 19, (11 June
1890).
The Copyright Act, 2 Geo. V, c. 5, (18 April 1912).
Consolidated Statutes, third series, c. 153, (1916).
An Act to provide for the preservation of copies of books printed in
Newfoundland and for the registration of such books. 50 Vict. c. 1.
Consolidated Statutes, 3rd. series, c. 70 (1916).
An Act to prevent the mischief arising from the printing and publishing of
books, newspapers, and papers of a like nature by persons unknown
and to regulate the printing and publishing the same. 6 Will, IV, c. 11,
(6 May 1836).
Consolidated Statutes of 1874, c. 52.
Consolidated Statutes, Second Series, c. 1, (1892).
Consolidated Statutes, Third Series, c. 69, (1916).
Newspaper and Book Act, 17 Geo. V. C. 15, c. 15.
Nova Scotia:
An Act for Securing Copy Right (30 March 1839).
First Revised Statutes, Chap. 119 (1851).
Second Revised Statutes, Chap. 119 (1859).
Third Revised Statutes, Chap. 119 (1864).
Fourth Revised Statutes, Chap. 116 (1873).
Prince Edward Island:
An Act for the Protection of Copyright, 24 Vict. Chap. XXXX (29 April
1861).
Quebec:
An Act for the Protection of Copyright, 2 Will. IV: Chap. 53, (February
1832).
Upper and Lower Canadas:
An Act for the Protection of Copyrights in the Province, 4 & 5 Vict. 61,
(18 Sept 1841).
Consolidated Statutes of 1859. 28: title 9:81.
An Act to extend the Provincial Copy-right Act to Persons resident in the
United Kingdom, on certain conditions. Vict. 10 & 11, c. 28, (1846).
Copyright Act, 31 Vict. c. 54, (22 May 1868).
Copyright Act, 38 Vict. c. 88, (28 Oct. 1875).
Consolidated Statutes 1886, c. 62.
Amendment to Copyright Act, 58 & 59 Vict. c. 37, (22 July 1895).
Revised Statutes, c. 70, (1906)
Copyright Act, 11 & 12 Geo. V. c. 24, (1921).
Copyright Act Amendment, 13 & 14 Geo. V, c. 10, (1923).
An Act for the Encouragement of Learning, 8 Anne, (10 April 1710).
The Engraving Copyright Act, 8 Geo. 2, c. 13, (1734).
The Engraving Copyright Act, 7 Geo. 3, c. 38 (1767).
The Copyright Act, Geo. 3, 53, (1775).
The Prints Copyright Act, 17 Geo. 3, c. 56, (1777).
The Sculpture Copyright Act, 54 Geo. 3, c. 56, (1814).
The Dramatic Copyright Act, 3 Geo. 4, c. 15, (1833).
The Lectures Copyright Act, 5 & 6 Will. 4, c. 59, (1835)
The Prints and Engravings Copyright Act, 6 & 7 Will. 4, c. 59, (1836).
The Copyright Act, Will. 4, c. 110, (1836).
The Copyright Act, 5 & 6 Vict. c. 45, (1842).
The International Copyright Act, 7 & * Vict. c. 12, (1844).
The Colonial Copyright Act, 10 & 11 Vict. c. 95, (1847).
The International Copyright Act, 15 & 16 Vict. c. 12, (1852).
The Fine Arts Copyright Act, 25 & 26 Vict. c. 68, (1862).
The International Copyright Act, 38 & 39, Vict. c. 12, (1875).
The Customs Consolidated Act, 39 & 40 Vict. c. 36, (1876).
The Copyright (Musical Composition) Act, 51 & 52 Vict., (1888).
The Revenue Act, 52 & 53 Vict. c. 42, (1889).
The Musical Copyright Act, 2 Edw. 7, c. 15, (1902).
The Musical Copyright Act, 6 Edw. 7, c. 36, (1906).