Ontario v. the Attorney-General of Canada (1894), App. Cas. 189. (See per Burton, J.A., S.C., 20 Ont. App. at pp. 496-8.) Perhaps, however, such view may still be upheld on the ground that the Act amounted to a bankruptcy proceeding by Parliament itself in invitum against the insolvent institution. (And see per Street, J., in Regina v. County of Wellington, 17 Ont. Rep. p. 618.) In the Court of Appeal in that case (17 Ont. App. 428), Hagarty, C.J.O., placed the Act in question rather under the Dominion power over banking and the incorporation of banks, saying:-It perhaps may be objected that such special legislation may be faulty. I hardly see this, where the special legislation is in reference to settling the affairs of an institution wholly the creation of Parliament, and wholly outside the creative powers of the provinces.” (Lefroy, Leg. Pow. p. 371. As to Dominion Bankruptcy and Insolvency Acts applying to one or more provinces only see Hagarty, C.J.O., in Clarkson v. the Ontario Bank (15 Ont. App. 178. Lefroy, Leg. Pow. p. 573).

In Allen v. Hanson, 16 Queb. L.R. 85, the Court of Queen's Bench in Quebec held that the Dominion Act 47 Vic. c. 39, providing that the Dominion Winding-Up Act should apply to incorporated trading companies "doing business in Canada, no matter where incorporated,” was intra vires, and confirmed an order granted upon the petition of the liquidator, under a liquidation previously instituted under the Imperial Act, 1862, in Scotland, and as ancillary to that principal winding up. Dorion, C.J., delivering the judgment of the majority of the Court, said (p. 84-5):-"It is evident that the Dominion Parliament never intended to regulate, suspend or dissolve, by the Winding-Up Act, any corporation existing under British or foreign authority, but merely to regulate their property and restrain their action in this country, which it undoubtedly had a right to do so. The several legislative bodies in Canada can have no concern in what a foreign corporation might do elsewhere; they are only interested in protecting the rights of the creditors of such corporation upon their own property within this country, and more particularly the right of their own citizens and of resident creditors. The provisions of the Winding-Up Act of Canada regulate the proceedings of our Courts to enforce the rights of creditors and of shareholders in the property of such companies. As they only relate to procedure, their operation is confined to property found within the territorial limits of the jurisdiction of the Courts authorized to enforce them. For the same reason, within such limits their operation can neither be regulated nor restrained by any foreign legislation." This decision was confirmed by the Supreme Court of Canada. Ritchie, C.J., said :-" All the Winding-Up Act, as I understand it, seeks to do in the case of foreign corporations is to protect and regulate the property in Canada, and protect the rights of creditors of such corporations upon their property in Canada." (18 S.C.R. [Can.] p. 674. Lefroy, Leg. Pow. p. 629.)

In re Clarke and the Union Fire Insurance Company, 14 Ont. Rep. 618, Boyd, C., held that the Dominion Winding-Up Act, 45 Vic. c. 23, was intra vires of the Dominion Parliament, as being in the nature of an insolvency law; that it applied to all corporate bodies of the nature mentioned in it all over the Dominion, and that the company in question in that case, though incorporated under a provincial charter, was subject to its provisions; and he observed:-"The case in the Supreme Court of the Merchants' Bank v. Gillespie does not touch the status of the present company, which is a domestic corporation within the territorial limits of Canada, whereas the company there in question was, for the purpose of the Act, a foreign one domiciled in England." (Lefroy, Leg. Pow. p. 631.)

In the Merchants' Bank of Halifax v. Gillespie, 10 S.C. R. (Can.) 312, the question raised was as to the validity of winding-up proceedings under the Dominion statute, 45 Vic. c. 23, as the sole and principal winding-up of a company incorporated under the English Act of 1862. The Supreme Court held that an order could not be made under that statute for the winding-up of the Steel Company of Canada, which was a joint stock company incorporated in England in 1874, under the Imperial Joint Stock Companies Act, never incorporated in Canada, but having its chief place of business in Nova Scotia,

where it owned mines and works, while it owned no real estate elsewhere, but merely occupied an office in Great Britain. 10 (S.C.R. [Can.] 312. Lefroy, Leg. Pow. p. 629.)

The Merchants' Bank of Halifax v. Gillespie was distinguished in re Briton Medical Life Association, 12 Ont. Rep. 441, where it was held by Proudfoot, J., that the Dominion Acts, 31 Vic. c. 48 and 34 Vic. c. 9, requiring foreign insurance companies doing business in Canada to make a certain deposit with the Minister of Finance, were intra vires, and an order was there made, on petition, for the distribution of the deposit made by the English company in question among the Canadian policy-holders, notwithstanding that proceedings to wind up the company were pending before the English Courts. Proudfoot, J., observed, with reference to the Merchants' Bank of Halifax v. Gillespie, that in that case there was no question of a deposit, and what was sought was not the distribution of the deposit, but the general winding-up of the company (12 Ont. 447. Lefroy, Leg. Pow. p. 632.)

IMPERIAL BANKRUPTCY LAWS IN THE COLONIES.-The question, how far English Bankruptcy Statutes extend to the colonies, has been considered in a number of cases. A decision of Lord Mansfield (cited Webb's Imperial Law 64) goes to show that "the statutes of bankrupts do not extend to the colonies." In Ellis v. McHenry, L.R. 6 C. P. 228, it was, however, decided that the English Bankruptcy Act of 1861 (24 and 25 Vic. c. 134), was of general application and binding within the colonies. In Callender Sykes and Co. v. Colonial Secretary of Lagos (1891), App. Ca. 460, it was held that the English Bankruptcy Act, 1869 (32 and 33 Vic. c. 71), applies to all the Queen's Dominions, and therefore that an adjudication under that Act operates to vest in the trustee in bankruptcy the bankrupt's title to real estate in Lagos, subject to the requirements of the law of Lagos as to the mode of transfer of real estate.

The English Bankruptcy Act of 1883 (46 and 47 Vic. c. 52, s. 118), provides that the English and Colonial Courts having jurisdiction in Bankruptcy and Insolvency shall severally act in aid of and be auxiliary to each other in matters of bankruptcy. In the case of Re Mann, 13 V.L. R. 590, Higinbotham, C.J., said: "The section of the English Act on which the application was made to our Court of Insolvency is a new section, and if I may be allowed to say so, I think it is a very wise and excellent section and one which should receive a liberal interpretation and should be cheerfully co-operated with and acted upon by the Courts to which it applies. It is an enabling section as well as an enjoining one, and applies to all British Courts having jurisdiction in bankruptcy or insolvency." A Court which has no bankruptcy jurisdiction cannot act as auxiliary. (Callender Sykes and Co. v. Col. Sec. of Lagos, 1891, App. Ca. 460.)

COLONIAL BANKRUPTCY LAWS.-The inconvenience resulting from the absence of uniform laws relating to insolvency and bankruptcy, operative throughout the Australian communities, was illustrated in the case of the Union Bank . Tuttle (1889), 15 V.L.R. 258. In that case the estate of the defendant had been sequestrated in New South Wales. Before such order of sequestration, creditors of the defendant had seized assets in Victoria under execution on judgments obtained in Victoria. By the law of New South Wales the order for sequestration had relation back to a period antecedent to the seizure by the creditors in Victoria. It was held that the retrospective operation of the order for sequestration in New South Wales did not divest the title of the execution creditors in Victoria. In giving judgment, Mr. Justice A'Beckett said: "The order of sequestration under the law of New South Wales had relation back to a period antecedent to the seizure by the Victorian creditors, and it has been argued that this Court, recognizing the operation of the sequestration in New South Wales, must do so to its full extent, giving it in Victoria the retrospective operation which it would have had in New South Wales, thus divesting the title of the execution creditors in Victoria. No authority has been cited which supports this contention. Story's Conflict of Laws, p. 412, and Geddes v. Mowat, 1 Glyn and J. 414, are against it. I hold that the judgment creditors' rights are not displaced by the sequestration of the debtors' estate in New

South Wales subsequently to the seizure, and I bar the claim made on behalf of the estate of Tuttle, the judgment debtor. The property seized is admittedly the property of a bankrupt firm, of which Tuttle is a member, and I have not to decide anything as to how the debtor's interest in this property is to be sold. I merely decide that his official assignee in insolvency cannot stop the sale of his interest in the chattels seized."

51. (xviii.) Copyrights 189, designs19, and trade marks192 :

patents of inventions190 and

HISTORICAL NOTE.-The Constitution of the United States empowers Congress "to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." (Art. I. sec. viii. sub-s. 9.) "Copyrights" are enumerated in sec. 91, sub-s. 23, of the British North America Act. "Patents of Invention and Discovery" and "Copyright" were among the subjects which might be referred to the Federal Council, under the Act of 1885. In the Bill of 1891 the sub-clause was worded "Copyrights and patents of inventions, designs, and trade marks." At Adelaide it was introduced in the same form, and at Melbourne a verbal amendment was made before the first report.

§ 189. "Copyright."

Copyright is the right which an author or artist has to prevent the re-publication of his published literary or artistic productions, including books, designs, drawings, engravings, paintings, photographs, musical compositions, and dramatic pieces. It must be distinguished from the property which an author has in his unpublished works, which is sometimes loosely called “copyright." At common law and independently of statute authors have property in their unpublished literary and artistic works. (Southey v. Sherwood, 2 Mer. 435.)

Whether, before the Copyright Acts, authors had at common law any exclusive right in their works after publication, is a question which has been the subject of much legal argument, but as to which authority has been and is still divided. In Millar v. Taylor (4 Burr. 2303) it was held by a majority that at common law an author and his assigns had a perpetual copyright in his published works, and that this right was unaffected by the statute 8 Anne, c. 21. In Donaldson v. Becket (4 Burr. 2408), Millar v. Taylor was overruled by the House of Lords, a majority being of opinion that, though the common law right existed, it had been taken away by the statute. The weight of modern opinion seems to be against the existence of the common law right, but the question is now one of merely historic interest, as copyright in published works is now wholly regulated by statute. (Jefferys v. Boosey, 4 H.L. Cas. 815; Read v. Conquest, 30 L.J. C.P. 209; Wheaton v. Peters, 8 Pet. [U.S.] 591; Copinger on Copyright, 3rd. ed. pp. 27-35.)

The first Act which directly recognized copyright in books after their publication was 8 Anne, c. 21, 1709, by which severe penalties were provided against infringers of copyright, such rights being secured for a period of fourteen years from registration; a term which was afterwards extended to twenty eight years. Copyright in prints and engravings was established in 1735 by the Act of 8 Geo. II. c. 13; since amended by the 15 and 16 Vic. c. 12. Copyrights in designs for manufactures was secured in 1787 by 27 Geo. III. c. 38, which has been amended by subsequent Acts. By the Act 5 and 6 Will. IV. c. 65 the right of printing and publishing lectures belongs to the lecturer, subject to compliance with certain conditions. (Caird v. Sime, 1887, 12 App. Cas. 326.)

By the Act 1 and 2 Vic. c. 59, passed in 1838, the copyright of works published in foreign countries is secured against infringement within the British Dominions, provided the law of those countries gives similar protection to the works of British authors. Before the statute the courts would not protect a copyright belonging to a foreigner.

(Delondre v. Shaw, 2 Sim. 237.) This Act was repealed and amended by 7 and 8 Vic. c. 12, which was afterwards amended by 15 and 16 Vic. c. 12. The last Imperial Act relating to international copyright was 49 and 50 Vic. c. 33, passed in 1886, after the holding of the international conference at Berne, where the draft of a copyright convention was agreed to.

The Act 5 and 6 Vic. c. 45, passed in 1842, amended and consolidated the law of copyright in books, and is the law which now regulates literary property throughout the Empire to this extent, that a copyright registered in England is valid and may be enforced in the courts of every British possession. This is one of the few Imperial statutes passed during the present reign the operation of which extends to every part of the Queen's Dominions. By this Act copyright in literary works is defined as the sole and exclusive liberty of printing or otherwise multiplying copies of any subject; and it is declared to belong to the author and his assigns, and to endure for the whole term of his life and for seven years after his death, or, if that term of seven years expires before the end of forty-two years from first publication, then for such period of forty-two years. Persons pirating a copyright work are liable to a special action for damages and may be restrained by injunction. The protection of this Act also extends to musical compositions and dramatic pieces. Sec. 15 prohibits her Majesty's colonial subjects, whatever may be their local laws, from printing or publishing in the colonies without the consent of the proprietor any work of which there is a copyright in the United Kingdom. It also prohibits the importation into any British possession of any foreign reprint of works first printed and published in the United Kingdom and entitled to a copyright.

In Routledge r. Low (1868), L. R. 3 H.L. 100, it was held that, notwithstanding the fact that Canada had a Legislature entitled to pass laws concerning copyright, Canada was included in the general words of sec. 29 of the Imperial Copyright Act of 1842.

That Act was afterwards amended by 10 and 11 Vic. c. 95 (1847), which provided that in case the legislature of any British possession should pass an Act making due provision for securing or protecting the rights of British authors in such possession, and transmit the same to the Secretary of State, and in case Her Majesty should be of opinion that such Act was sufficient for the purpose of securing to British authors reasonable protection within such possession, it should be lawful for Her Majesty to express Her Royal approval of such Act, and thereupon, by Order in Council, to suspend, so long as the provisions of such Act should continue in force in such colony, the provisions of the 5 and 6 Vic. c. 45, against the importing, selling, or exposing for sale of foreign reprints of British copyright works.

The Royal assent was refused to the Canadian Copyright Bill of 1872 on the ground that it was repugnant to the provisions of the Imperial statute. In a despatch dated 15th June, 1874, addressed by Lord Carnarvon, Secretary of State for the Colonies, to the Governor-General of Canada, his lordship pointed out that the effect of the Canadian Constitution giving the Parliament of the Dominion power to legislate with respect to copyright was to enable it to deal with colonial copyright within the Dominion, and that it was not intended to interfere with the rights secured to authors by the Imperial Act or to override the provisions of that Act. "The Imperial Copyright Act, 5 and 6 Vic. c. 45," wrote his lordship, "is, as you are aware, still in force in its integrity throughout British dominions, in so far as it prohibits the printing in any part of such dominions of a book in which there is a subsisting copyright under that Act without the assent of the owner of the copyright."

Under the power conferred by the Imperial Act, 10 and 11 Vic. c. 95, the Dominion Parliament, in 1875, passed 31 Vic. c. 56 in order to secure to authors the reasonable protection contemplated by the Imperial Act. It provides that any author domiciled in Canada or any part of the British possessions, or being a citizen of a foreign State having an international copyright treaty with Great Britain, should be entitled to copyright in Canada for twenty-eight years, and renewal of it for fourteen years to himself, if he were still alive, and if not to his widow and children, but to no one else, who might be

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