Charles Jefferys, - Plaintiff in Error; Thomas Boosey-in Error
| Jurisdiction | England & Wales |
| Judgment Date | 01 August 1854 |
| Date | 01 August 1854 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 681
House of Lords
Mews' Dig. iv. 459, 484, 546. S.C. 24 L.J. Ex. 81, 1 Jur. N.S. 615; 20 L.J. Ex 354; 15 Jur. 540. As to position of foreigner, see Routledge v. Low, 1868,l L.R. 3 H.L. III 33 Vict. C. 14, S. 2; the International Copyright Acts, 1844-1886 (7 and 8 Vict. c. 12; 15 Vict. c. 12; 49 and 50 Vict. c. 33); and the Berne Convention, 1886; Hanfstaengl v. American Tobacco Co. (1895), 1 Q.B. 347; Baschet v. London Illustrated Standard Co. (1900), 1 Ch. 73. As to assignment, see Copyright Act, 1842, s. 13. See also Boucicault v. Chatterton, 1877, 5 Ch. D. 276; Caird v. Sime, 1887, 12 A.C. 343; Tuck v. Priester, 1887, 19 Q.B.D. 54, 640; Trade Auxiliary Co. v. Middlesborough and District Tradesmen's Protection Association, 1889, 40 Ch. D. 434; Walter, v. Lane (1900), A.C. 539.
Foreigner - Copyright - Assignment of Copyright.
[815] CHARLES JEFFERYS,-Plaintiff in Error; THOMAS BOOSEY,-, in Error [February 16, 17, 20, June 29, August 1, 1854J [Mews' Dig. iv. 459, 484, 546. S.C. 24 L.J. Ex. 81, 1 Jur. N.S. 615; 2b~L.J.'IE* 354; 15 Jur. 540. As to position of foreigner, see Boutledge v. Low, 1868,l L.R. 3 H.L. Ill; 33 Viet. c. 14, s. 2; the International Copyright Acts, 1844-1886 (7 and 8 Viet. c. 12; 15 Viet. c. 12; 49 and 50 Viet. c. 33); and the Berne Convention, 1886; Hanfstaengl v. American Tobacco Co. (1895), 1 Q.B. 347; Baschet v. London Illustrated Standard Co. (1900), 1 Ch. 73. As to assignment, see Copyright Act, 1842, s. 13. See also Boucicault v. Chatter-ton, 1877, 5 Ch. D. 276; Caird v. Sime, 1887, 12 A.C. 343; Tuck v. Priester, 1887, 19 Q.B.D. 54, 640; Trade Auxiliary Co. v. Middlesborouah and District Tradesmen's Protection Association, 1889, 40 Ch. D. 434; Walter, v. Lane (1900), A.C. 539.] Foreigner-Copyright-Assignment of Copyright. The object of 8 Anne, c. 19, was to encourage literature among British subjects, which description includes such foreigners as, by residence Eere, owe the Crown a temporary allegiance; and any such foreigner, first publishing his work here, is an " author" within the meaning of the statute, no matter where his work was composed, or whether he came here solely with a view to its publication. Copyright commences by publication; if at that time the foreign author is not in this country, he is not a person whom the statute meant to protect. An Englishman, though resident abroad, will have copyright in a work of his own first published in this country. B., a foreign musical composer, resident at that time in his own country, assigned to R., another foreigner, also resident there, according to the law of their country, his right in a musical composition of which he was the author, and which was then unpublished. The assignee brought the composition to this country, and, before publication, assigned it, according to the forms required by the law of this country, to an Englishman. The first publication took place in this country : Held, reversing the judgment of the Court of Exchequer Chamber, that the foreign assignee had not, by the law of this country, any assignable copyright here in this musical composition. Per Lords Brougham and St. Leonards.-Copyright did not exist at common law ; it is the creature of statute. H.L. x. 681 22a IV H.L.C., 816 JEFFERYS V. BOOSEY [1854] Per Lord St. Leonards.-No assignment of copyright under the 8 Anne, c. 19, the benefit of which is claimed by the assignee, although from a foreigner, can be good in this country, unless it is attested by two witnesses. Per Lord St. Leonards.--There cannot be a partial assignment of copyright. This was an action on the case brought in the Court of Exchequer by T. Boosey against C. Jefferys. The decla-[816]-ration stated that the plaintiff was, and still is, the proprietor of the copyright in a certain book, to wit, a musical composition called " Come per me sereno," Tiecitativo e Cavatina nell' Opera La Sonnambula, del M. Bellini, which said book had been and was first printed and published in England, and within twenty-eight years last past, and which copyright was subsisting at the time of the committing of the grievances, etc. Yet the defendant, contriving to injure the plaintiff, and to deprive him of the gains, etc. which he might, and otherwise would have derived from the said book, and also to deprive him of the benefit of his copyright therein, heretofore and after the passing of a certain Act of Parliament, etc. (the 5 and 6 Viet. c. 45), and within twelve months before the commencement of this suit, to wit, etc. wrongfully, and without the consent in writing of the plaintiff, so being the proprietor of the said copyright, did, in England, unlawfully print and cause to be printed for sale, divers copies of the said book, contrary to the form of the statute. And the defendant further contriving, etc., heretofore and within twelve calendar months next before the commencement of this suit, to wit, etc., did wrongfully, and without the consent in writing of the plaintiff, so being the proprietor of the copyright, unlawfully sell and cause to be sold, and unlawfully publish and cause to be published, and expose to sale and hire, and cause to be exposed to sale and hire, and unlawfully had in his possession divers, etc. copies of the said book, then on those days and times, etc., well knowing the said copies, and each and every of them, to have been unlawfully printed, contrary to the form of the statute. By means, etc. the plaintiff has been hindered and prevented from selling, etc., and his copyright has been and is greatly injured and damnified, to the plaintiff's damage. The defendant pleaded, first, that the plaintiff was not [817] the proprietor of the copyright in manner and form, and secondly, that there was not, at the time of committing the supposed grievance, a subsisting copyright in the book, as alleged. The plaintiff took issue on these pleas. The cause came on for trial before Mr. Baron Rolfe, at the sittings after Easter Term, 1850, when it appeared in evidence that the opera in question was composed at Milan, in February, 1831, by Vincenzo Bellini, an alien, then and since resident at Milan; that by the law of Milan, he was entitled to copyright in this opera, and to assign such copyright; that on the 19th of February, 1831, he did, by an instrument in writing, according to the law of Milan, assign the copyright to Giovanni Ricordi, also an alien, and resident at Milan; that according to the law of Milan, such copyright, and the right of assigning the same, thereby became vested in Eicordi; that on the 9th day of June, 1831, Eicordi being then in London, duly executed, according to the laws of England, an indenture*, made between himself and the plaintiff, which indenture recited the above facts, and assigned all Eicordi's interest in the copyright in the opera to' the plaintiff, but for publication in the United Kingdom only. The plaintiff further proved that he was a native-born subject, resident in England; that the opera was first published by him in London on the 10th June, 1831, and that there had been no previous publication thereof in the British dominions, or in any other country; and on the same day the book was duly registered in the Stationers' Company and copies deposited there according to law. The plaintiff further proved that, on the 13th of May, 1844, he caused a further entry to be made in the registry of the Stationers' Company, for the purposes of the statute passed in the 5 and 6 Viet. c. 45, and these entries were proved in evidence at the trial. Mr. Baron Rolfe [818] then, in conformity with the decision in Boosey v. Purday (4 Exeh. Rep. 145), directed the jury that the matters given in evidence were not sufficient to entitle the plaintiff to a verdict on either of the issues, and that the verdict must be found for the defendant. A bill of exceptions was tendered to this direction. The cause came on to be heard on the bill of exceptions (which set forth the pleadings and facts above 682 JEFFERYS V. BOOSEY [1854] IV H.L.C., 819 stated) before the Judges in the Court of Exchequer Chamber, on the 20th May, 1851, when judgment was given declaring the direction at the trial to' be wrong, and a venire de novo was awarded (6 Exch. Rep. 580). A writ of error was then brought in this House. The Judges were summoned, and Lord Chief Justice Jervis, Lord Chief Baron Pollock, Mr. Baron Parke, Mr. Baron Alderson, Mr, Justice Coleridge, Mr. Justice Maule, Mr. Justice Wightman, Mr. Justice Erie, Mr. Baron Platt, Mr. Justice Williams, arid Mr. Justice Crompton attended. Mr. Serjt. Byles and Mr. Quain, for the plaintiff in error.-The judgment of the Court below is wrong, for Ricordi possessed no co-pyright in England, and his assignment passed nothing. It is a generally understood principle, that a municipal law, such as that of copyright, does not extend beyond the limits, of the country which enacts it. Story's Conflict of Laws (SS. 7-18, 375, 425, 436). If the laws of two countries conflict, the decision must be according to universal principles of law, or according to the special law of the country where the suit is prosecuted. [Lord Brougham.-That principle was declared in this House in Don v. Lipp-mann (5 Clark and F. 1), the authority of which [819] has been universally recognized. It is quoted many times by Story.] In the United States, the law expressly declares that no person has copyright there but one who is a native of the States, or a, resident in them ;* and it appears doubtful whether he must not be such a resident as may become an American citizen.! In this country the law has not been so expressly declared by statute, but the statutes that have been passed upon that subject bear a similar interpretation. Starting from an acknowledged point, the course is per-[820]-fectly clear. The case of Chap-pell v. Pwday (14 Mee. and Wels. 303) decides that a foreign author...
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