in possession of the copyright, for any work, literary, scientific, or artistic, printed and published or reprinted or republished in Canada, with the reservation that the exclusive privilege should cease in Canada at the same time that it expired for any work anywhere else.

The conditions precedent to securing the protection of this Canadian Act were (1) that such works should be recorded and copyrighted in Canada; (2) that such works should be printed and published, or reprinted or republished in Canada, or, in the case of works of art, that they should be produced or reproduced in Canada, whether they were so published or produced for the first time or contemporaneously with or subsequently to publication or production elsewhere: provided that in no case should the exclusive privilege in Canada continue after it had expired elsewhere; (3) that no immoral, or licentious, or irreligious, or treasonable, or seditious work should be the subject of such registration or copyright. By Clause 15 of the Act, works of which the copyright had been granted and were subsisting in the United Kingdom, and copyright of which was not secured or subsisting in Canada under any Canadian or Provincial Act, should, upon being printed and published or reprinted or republished in Canada, be entitled to copyright under the Act; but nothing in the Act should be held to prohibit the importation from the United Kingdom of copies of such works legally printed there.

One legal result of this Canadian measure was that, if the proprietor of an English copyright did not register and publish in Canada, foreign reprints could be imported into Canada upon payment of a royalty, to be appropriated for his benefit. The reason for this was that under the protection of the Imperial system, United States authors could secure copyright in Great Britain and her possessions by publishing in England, and thus secure the control of the Canadian market, whilst a Canadian author could not obtain such privileges in the United States.

Her Majesty was empowered to assent to this Bill, by the (Imperial) Canada Copyright Act, 38 and 39 Vic. c. 53, and an Order in Council was then promulgated suspending the provisions of 5 and 6 Vic. c. 45, so far as it prohibited the importation into Canada of foreign reprints of books first published in the United Kingdom and copyrighted there.

The effect of this combination of Canadian and Imperial legislation was considered in the Canadian case of Smiles v. Belford (1877), 1 Ont. App. 436, in which an injunction was applied for on behalf of the holder of an English copyright, under the Imperial Act, 5 and 6 Vic. c. 45, to restrain the defendants from publishing a reprint of the plantiff's work in Canada. The point was raised in this case, though afterwards abandoned by counsel before the Court of Appeal, that the Imperial Parliament, by sub-sec. 23 of section 91 of the British North America Act, had divested itself of all power respecting British copyright in Canada, and that the Canadian Copyright Act, 38 Vic. c. 88, had, by virtue of the Imperial Canada Copyright Act, 1875, 38 and 39 Vic. c. 53, superseded the Imperial Copyright Act of 1842, and required all authors desirous of obtaining copyright in Canada to print and publish and register under the new Act, which the plaintiffs had not done. The defendant further contended that the provisions of the Canadian Act must be complied with, in order to give copyright in Canada. Proudfoot, V.C., refused to sustain these views and granted the injunction asked for. He said: "There is nothing indicating any intention of the Imperial Parliament to abdicate its power of legislation on matters of this kind." On appeal to the Ontario Court of Appeal, this decision was affirmed. Burton, J. A., entirely concurred in the view of Proudfoot, V.C. Referring to Routledge v. Low, in which it had been unsuccessfully contended that as Canada had a legislature of her own she was not included in the general words of section 29 of the Imperial Act, 5 and 6 Vic. c. 45, whereby that Act was extended to every part of the British dominion, he said: What the British North America Act intended to effect was to place the right of dealing with colonial copyright within the Dominion under the exclusive control of the Parliament of Canada, as distinguished from the provincial legislatures, in the same way as it has transferred the power

to deal with banking, bankruptcy, and insolvency, and other specified subjects, from the local legislatures, and place them under the exclusive jurisdiction and control of the Dominion. I entirely concur with the learned Vice-Chancellor in the opinion he has expressed, that under that Act no greater powers were conferred upon the Parliament of the Dominion to deal with this subject than had been previously enjoyed by the local Legislatures." (1 Ont. App. 443, Wheeler, Conf. Can. pp. 92-3.)

The Canadian Copyright Act, 1889 (which contained a clause suspending its operation until proclamation by the Governor-General), made regulations operative in Canada which differed from those existing under Imperial legislation, and which were calculated to affect copyrights registered in England. The English law officers advised the Secretary of State for the Colonies that in their opinion "the then existing powers of colonial legislatures to pass local laws on the subject of copyright in books were probably limited to enactments for registration and for the imposition of penalties with a view to the more effectual prevention of piracy, and to enactments within sub-sec. 4 of sec. 8 of the International Copyright Act, 1886, with reference to works first produced in the colony." With respect to the constitutionality of the Canadian Act, the law officers reported that the powers of legislation conferred on the Dominion Parliament by the British North America Act, 1867, did not authorize that Parliament to amend or repeal, so far as it related to Canada, an Imperial Act conferring privileges within Canada, and that, in their opinion, Her Majesty should disallow the Act. On 25th March, 1890, Lord Knutsford sent a despatch to Lord Stanley of Preston, the Governor-General of Canada, in which he expressed his regret that he was unable to authorize the Governor-General to issue a proclamation to bring the Act into force. (Lefroy, p. 231. Todd, Parl. Gov. in Col., 2nd ed. p. 182.)

COPYRIGHT IN THE UNITED STATES.-In the United States, under the power to secure to authors and inventors the exclusive right to their writings and discoveries, Congress has created the patent and copyright systems of the Union, and regulates and controls them exclusively.

"It can hardly be said that this power is exclusive to the Congress as against the States, in the sense that if the Congress had not occupied the ground the States might not do so. While the States cannot probably amend or supplement the patent and copyright laws of the United States, there is no reason for asserting that, in the absence of any patent and copyright legislation by Congress, the States may not pass laws to protect the inventions and writings of their own citizens, which will hold until displaced by the legislation of Congress upon the subject. Of course such protection would be very inadequate, as it would not reach beyond the boundaries of the particular State." (Burgess, Political Sci. II. p. 144.)

Congress may provide for copyright of photographs as works of art or science, so far as they are representations of original intellectual conceptions of the author. (BurrowGiles Lithographic Co. v. Sarony, 111 U.S. 53.)

A patent is a legal privilege granted by the Crown to an individual, and conveying to him the sole right to make, use, or dispose of some invention of a new and useful mechanism, appliance, or process in science, art, or industry for a specified period of time. In England modern patent legislation began with the statute of 21 Jas. 1. c. 3. This Act declared void all previously enjoyed monopolies, grants, letters-patent, and licences for the sole buying, selling, or making of goods except in certain cases, and provided for the protection for a term of fourteen years of letters-patent and grants of privileges thereafter to be made to the true and first inventor of processes for the working or making of new manufactures within the realm, which others at the time of making such letters-patent and grants should not be using. Thus the elements of novelty and previous non-user by the public became the principal conditions precedent to the acquisition of such rights and privileges. The law was amended by Acts passed in the reigns of Queen Anne and William IV. By the Acts of 5 and 6 Will. IV. c. 83, 2 and 3

Vic. c. 67, 15 and 16 Vic. c 83, amended and re-enacted by the Patent Act, 1883 (46 and 47 Vic. c. 57), the main provisions of the present patent laws were established. These laws defined the procedure to be complied with in order to acquire a patent, such as the formal application, the description and specification of the invention, the provisional protection, the investigation of the merits and originality of the invention, the decision of disputes, the duration of the patent, the protection and privileges of the patentee, and the penalties for the infringement of the right.

A patent granted by the Crown in England extends over the United Kingdom and the Isle of Man, and certain rights are, under the International Convention, obtainable in foreign countries. Under the Patents Act, 1883 (46 and 47 Vic. c. 57), sec. 103, as amended by sec. 6 of the Act of 1885 (48 and 49 Vic. c. 63), the Queen may make arrangements with foreign Governments for the mutual protection of inventions of their respective subjects and citizens. Any person who has applied, within any State with which arrangements have been made thereunder, for protection for any invention, will be entitled to a patent for his invention in the United Kingdom, provided he makes application within seven months after his foreign application. Such an applicant is not prejudiced in his right to a patent by publication within the realm during the seven months period. Sec. 104 makes similar provision for inventors who have first applied for protection in any British possession. A list of countries and colonies with which arrangements have been made is set out in Edmunds on Patents, 2nd ed. at p. 536; the text of the International Convention will be found in the same book. (See Ency. Laws of Eng. ix. p. 522.)

A patent granted by the Government of a British colony does not confer any legal right enforceable in other colonies. An inventor must take out a patent in each colony in which he desires to obtain protection against infringement. As soon, however, as the Parliament of the Commonwealth passes a general law relating to patents, a patent granted by its Government will be operative throughout the Commonwealth. patent will then secure protection where several were previously required.

One

ENGLISH PATENT CASES.-The Act 21 Jac. 1, c. 3, did not create but controlled the power of the Crown in granting to the first inventors the privilege of the sole working and making of new manufactures. (Caldwell . Van Vlissengen, 21 L.J. Ch. 97. Dig. Eng. Case Law, vol. x. p. 687.)

An invention must be both new and useful, and not confined to the knowledge of the party making it, to be the subject of a patent. (Hill v. Thompson, 2 Moore, 424. Dig. Eng. Ca. Law, vol. x. p. 689.)

It is not every useful discovery that can be made the subject of a patent, but the words "new manufacture" in 21 Jac. 1, c. 3, will comprehend not only a production, but the means of producing it. (Ralston v. Smith, 20 C.B. [N.S.] 28; 11 H.L. Cas. 223. Id.)

The discovery of a more skilful and efficient mode of working a process already known and in use is not the proper subject of a patent. (Patterson v. Gaslight Coke Co. 2 Ch. D. 812. Id.)

The discoverer of a new principle or new idea as regards any art or manufacture, who shows a mode of carrying it into practice, as by a machine, may patent the combination of principle and mode, although the idea or the machine would not alone be the proper subject of a patent. (Otto . Linford, 46 L.T. 35 C.A. Dig. Eng. Ca. Law, vol. x. p. 690.)

AMERICAN PATENT CASES.-Whether Congress can by Act decide that a particular individual is the author or inventor of a certain writing or invention, so as to preclude judicial inquiry into such fact, quaere. (Evans v. Eaton. 3 Wheat. 454.) It is for Congress to say when, for what length of time, and under what circumstances a patent hall be granted. It has power to pass an Act which operates retrospectively to give a patent for an invention already in use. (Blanchard v. Sprague, 2 Story, 164; Baker, Annot. Const. p. 48.)

CANADIAN PATENT CASES.-In Tennant . Union Bank of Canada, 1894, App. Cas. 31, it was held that laws made by the Dominion Parliament on subjects, such as banking and patents, are paramount, and it would be practically impossible for the Dominion Parliament to legislate upon either of these subjects without affecting the property and

the civil rights of individuals in the provinces. In Smith v. Goldie, 9 S.C.R. (Can.) 46, it was held that a patent for a combination of known inventions, the combination being novel and useful, was valid. It was there also held that to be entitled to a patent in Canada, the patentee must be the first inventor in Canada or elsewhere. In the case of Re Bell Telephone Co. (7 Ont. 605) the question was raised whether section 28 of the Dominion Patent Act, 35 Vic. c. 26, was ultra vires, as creating a court of justice of civil jurisdiction, infringing sub-secs. 13 and 14, sec. 92, B.N.A. Act. (Wheeler, C.C. pp. 89-91.)

In manufacture, design implies the novel and attractive figures, plans, or outlines which the workman copies, either from his own drawings or from artistic sketches supplied, and imprints for the purpose of enrichment into the stuff, silk, and other materials which constitute the manufactured article. The first English Act relating to this subject was 27 Geo. III. c. 38, passed in 1787. This was followed subsequently by the Act 5 and 6 Vic. c. 100 (1842), amended by 21 and 22 Vic. c. 70 (1858). By the Act of 1842 all articles of manufacture, and substances on which designs are executed, are divided into thirteen classes; for some of which the copyright of the design was fixed at three years, for others nine months, and for the others twelve months.

The Patents Designs and Trade Marks Act of 1883 (46 and 47 Vic. c. 57), amended and consolidated the English statute law relating to designs. That Act has been slightly altered by the Patents Designs and Trade Marks Act of 1886 (49 and 50 Vic. c. 37), and 1888 (51 and 52 Vic. c. 50), and by the Designs Rules of 1890 and 1891. The Consolidated Act of 1883 defines the term design as any design applicable to any article of manufacture, or to any substance, artificial or natural, or partly artificial and partly natural, whether the design is applicable for the pattern, or for the shape or configuration, or for the ornament thereof, or for any two or more of such purposes, and by whatever means it is applicable, whether of printing, painting, embroidering, weaving, sewing, modelling, casting, embossing, engraving, staining, or any other means whatever, manual, mechanical or chemical, separate or combined, not being a design for a sculpture or other things within the protection of the Sculpture Copyright Act of the year 1814. According to this definition there are only a few special classes of designs within the protection of the Act, viz.: those applicable to the pattern, shape, or ornamentation of manufactured articles. (Per Lord Herschell in Hecla Foundry Co. v. Walker [1889] 14 App. Ca. 550; and per Lindley, L.J, in re Clarke's Design [1896] 2 Ch. at p. 43.)

$192. "Trade Marks."

A trade mark is some name, symbol, or device, consisting in general of a picture, label, word or words, which is applied or attached to a trader's goods so as to distinguish them from the similar goods of other traders, and to identify them as his goods, in the business in which they are produced or put forward for sale. (Leather Cloth Co. v. American Leather Cloth Co., 11 H.L. Cas. 523; Richards v. Butcher, 1891, 2 Ch. at pp. 532 and 543, per Kay, J., and Lord Esher, M.R.)

Any symbol may become a trade mark if it is capable of distinctive user in accordance with the definition, but only symbols which consist of or contain at least one of the essential particulars enumerated in the Acts, 1883, s. 64, as amended by 1888, s. 10, are capable of registration. The essence of a trade mark is that it distinguishes the owner's goods, and the essence of an infringement (where the essential particulars are not bodily appropriated) is that the use of the mark upon the defendant's goods is calculated to lead purchasers to buy them as being the plaintiff's goods. A trade mark must therefore be a distinctive symbol. A word or device which is common to the trade or is in general use, mere descriptive matter, or the name of the goods themselves, are the principal examples of marks which are not distinctive." (Encyc. of the Laws of Eng., xii. p. 223.)

Prior to trade mark legislation, property in a trade mark could only be acquired by actual user of the mark for such a length of time as to be evidence of appropriation of the badge distinguishing the owner's goods. Under the English Acts, registration can be procured of any trade mark, and registration is evidence of the proprietor's right to its exclusive use. A right to a trade mark can now be obtained by the registration of a new and unused mark, provided that the applicant has a real intention to use the mark upon the description of goods for which it is registered. (Hudson's Trade Marks, 1886, 32 Ch.D. 311.)

By the International Convention of 1883, the signatory Powers agreed to reciprocally admit to registration and protection trade marks registered in their several countries. This has not, so far, been fully carried out by English law. (Californian Fig Syrup Co.'s Trade Mark, 1888, 40 Ch. D. 620; Carter Medicine Co.'s Trade Mark, 1892, 3 Ch. 472.) But foreigners may register their trade marks in England, giving an address within the Kingdom for service on the same terms as English subjects. In the case of a signatory Power, if any of its subjects who has registered a mark at home, which is capable of registration in England, applies for a registration in England within four months of his application to register at home, he is entitled in priority to other applicants, and is not prejudiced by the use of the mark by others during the period. Germany is the only important non-signatory Power. Section 8 of the Act of 1888 is applicable to the principal Colonies. Under the Convention of Madrid, 1891, a trade mark may be registered as the result of a single application in the countries of the signatory Powers. Great Britain has not acceded to this Convention. (Encyc. of the Laws of Eng., xii. p. 234.)

51. (xix) Naturalization1 and aliens193:

66

HISTORICAL NOTE. -The Constitution of the United States empowers Congress to establish a uniform rule of naturalization throughout the United States." (Art. I. sec. viii. sub-sec. 4.) "Naturalization and aliens" is specified in sec. 91, sub-sec. 25, of the British North America Act. "Naturalization of aliens " was a subject which might be referred to the Federal Council under the Act of 1885. The sub-clause was introduced in its present form in 1891, and was adopted in 1897-8 without debate.

In English law an alien may be variously defined as a person who owes allegiance to a foreign State, who is born out of the jurisdiction of the Queen, or who is not a British subject. The rule of the common law is that every person born out of the British Dominions is an alien, and that every person born within British Dominions is a British subject. This is known as the jus soli or the territorial test of nationality, which is contrasted with the jus sanguinis or the parentage test of nationality. There are several exceptions to the territorial rule; (1) legitimate children born out of the British Dominions, whose fathers, or grandfathers on their fathers' side, were natural-born subjects, not in the service of an enemy at the time of such children's birth, are entitled to the rights of natural-born subjects (Imperial Acts 4 Geo. II. c. 21, secs. 1, 2; 13 Geo. III. c. 21); (2) children born on board British ships on the high seas are naturalborn subjects; (3) legitimate children of an alien enemy, born in a part of the British Dominions which at the time of their birth is in hostile occupation, are not British subjects. (See Calvin's case, 7 Coke Rep. 4; Westlake, Priv. Internat. Law, 3rd ed. p. 323. Dicey, Conflict of Laws, p. 176.)

Although aliens resident in a British country owe no local allegiance to the Crown, they are bound equally with British subjects to obey the laws of the country. Mr. Hall considers that an alien, "in return for the protection which he receives, and the opportunities of profit or pleasure which he enjoys, is liable to a certain extent, at any rate, in moments of emergency, to contribute by his personal service to the maintenance of order in the State from which he is deriving advantage, and under some circumstances