British North America Act. That the British publishers have abated nothing of their attitude or of their strength is evident from the recently reported declaration of the Colonial Secretary that, strong as the present British Government is, it is doubtful if it could carry through Parliament a measure declaratory of colonial self-government in the matter of copyright.

On the other hand, the Canadian Parliament, having set its face in the direction of Canadian control of Canadian affairs, evinces no inclination to look over its shoulder. One of the last State papers penned by the late Sir John Thompson was on the subject of the copyright controversy. It is evident from the tone of the paper that he had reached the conclusion that the time had come for dropping diplomatic niceties. and calling things by their right names. In the course of his argument he declared that the persistency of the Imperial Government in its denial to the self-governing colonies of control over copyright might be regarded as a continuance for the benefit of the British authors and publishers of the system which was based on "the idea that the colonies were to be preserved only for the benefit of the producers in the British Islands, and that the inhabitants of these colonies had no rights of self-government or otherwise which were inconsistent with the interest of the British producers."

In introducing the Canadian Copyright Amendment Act of 1900 into the House of Commons, the present Minister of Agriculture declared, that "there is not a single man in Canada who is prepared for a moment to question or doubt our constitutional right to legislate upon copyright questions." More recently, it has been announced that a suggestion by the British Colonial Secretary to the Canadian Minister of Justice that the latter should prepare a Copyright Bill and submit it to the approval of the British Government was politely but firmly declined. In short, there has never been

any division

on party lines, or indeed any division of opinion

whatever in the Parliament of Canada on the subject. The Canadian Government has taken the position that the principle of self-government being questioned, that matter must be settled as a preliminary to the discussion of details.

The Canadian publishing interests will probably not be in entire harmony as to what the copyright policy of Canada ought to be. They will, however, if they are true Canadians, all agree that, whatever that policy is to be, it must be "made in Canada." That it will be a fair and honest policy is to be expected; but if not, it is Canada's affair. The right to make laws carries with it the right to make mistakes. Canada has given no hostage to Great Britain to answer for the wisdom of her laws in the vastly more important matters of trade and finance, and the multitude of other matters with which the Dominion Parliament deals, without a suggestion of Imperial supervision. Why should copyright be upon a different basis?

IMPERIAL COPYRIGHT LEGISLATION.

The Imperial Act of 1842 was passed against the protests of the North American Colonies. The Act forbids the piracy of works entitled to copyright under its provisions, anywhere within the British Dominions. It also prohibits the importation into the British dominions of foreign reprints of British copyright books by any persons not being the proprietor of the copyright, and empowers the officers of the customs to seize and destroy such reprints. It further provides that the words "British dominions" shall be construed to mean "all the colonies." After the passage of the Act of 1842, Canada continued to protest until Earl Grey, then Colonial Secretary, intimated that in view of the remonstrances which had been received from the North American colonies, the Government proposed to leave to the Colonial Legislatures the duty and responsibility of making such laws as they might deem proper for securing the rights of authors. The actual relief granted by the Foreign Reprints Act of 1847 fell far short of Canada's claim and of Earl Grey's promise; but it was some recognition of the justice of the colonial position. The Act authorized her late Majesty, in case the Legislature of any British possession should be disposed to make due provision for securing the rights of British authors, and should pass an Act for that purpose, to approve of the same and to issue an order declaring that so long as such Act continued in force, the prohibition against the importation of foreign reprints should be suspended so far as regarded such colony.

The Canadian Government accepted the Act not as a finality but as a temporary measure, which though refusing recognition of the principle for which they contended, gave substantial relief from the intolerable commercial conditions against which they had also protested. A Canadian Act was accordingly passed, imposing a duty of 12 per cent. on foreign reprints of British copyright works in order that the proceeds of such duty might be paid over to the owners of the British copyrights. In effect, to quote from a report prepared for the consideration of the Imperial authorities by Sir John Thompson, more than 50 years after the Foreign Reprints Act was passed, "the Imperial Parliament finding so great a grievance, obliged the holders of it to compound for a money consideration, which the colonists would pay without much expression of discontent, even if it involved denial to this country for a time of the rights of self-government."

THE BRITISH NORTH AMERICA ACT.

Under the head of "Distribution of the Legislative Powers of the Parliament," the British North America Act provides that "the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next herein enumerated." Then follows the enumeration of twenty-nine subjects, including "Copyright."

In 1872 the Parliament of Canada, in pursuance of its understanding of the "exclusive " jurisdiction conferred upon it by the Imperial Parliament, passed an Act respecting copyright. The Earl of Dufferin, then Governor-General of Canada, reserved the Act for the consideration of the Imperial authorities, and in due course Lord Carnarvon, in a despatch to the Governor-General, stated that he had been unable to advise Her Majesty to approve of the Act, because he said it was not contemplated by the British North America Act that the Parliament of Canada should have the power to interfere with the rights in Canada of the owners of copyright under the Imperial Copyright Act. In support of this view, he cited an opinion which had been procured by the British Copyright Association from two very eminent English lawyers to the effect that the word "exclusive" in the British North America Act "has reference only to the exclusive legislation

in Canada of the Dominion Legislature as distinguished from the provinces of which it is composed." Though Mr. Gladstone had declared in the course of the debate in the House of Commons which preceded the passing of the British North America Act, that "we have for a full quarter of a century acknowledged absolutely the rights of self-government in the colonies," this reversion of Downing Street in 1872 to its preConfederation attitude towards the colonies ought not perhaps to be a matter of much surprise, because the idea of selfgovernment in the dominions beyond the sea was not as familiar thirty years ago in England as it is to-day. But making due allowance for the slowness with which newfangled ideas percolate the British mind, the wonder, nevertheless, is that throughout the years that have intervened since Lord Carnarvon's despatch, with all their political developinent, the Colonial Office should still have clung stubbornly— one is tempted to say stupidly-to the 18th century idea of the rights of the home Government to legislate for the colonies.

The meaning of the phrase "the exclusive legislative authority of the Parliament of Canada," was judicially considered by Chief Justice Draper in the Ontario Court of Error and Appeal in 1875: Regina v. Taylor, 36 U. C. R. 183. His opinion, which, however, was not necessary to the decision of the case then before the Court, was that the words were "intended as a more definite renunciation on the part of the Parliament of Great Britain of its powers over the internal affairs of the Dominion."

The point, however, came up for consideration a couple of years later in the then newly constituted Ontario Court of Appeal, and the Court was unanimously of the contrary view: Smiles v. Belford (1877), 1 A. R. 436. In his considered opinion delivered in this case, Mr. Justice Burton said:

"It is clear, I think, that all that the Imperial 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, bankruptcv and insolvency, and other specified subjects, from the local Legislatures, and

placed them under the exclusive jurisdiction and control of the Dominion."

In the result, the Court held that it was not necessary for the author of a book, who had obtained copyright in England, under the Act of 1842, to obtain copyright under the Canadian Act before taking proceedings to restrain a Canadian reprint; in other words, that notwithstanding the British North America Act and the Canadian Copyright Act, the Imperial Act remained in full force in Canada, so far as Canadian reprints were concerned.

In delivering his opinion in this case, Mr. Justice Moss confessed that the conclusion at which he had arrived had not been reached without reluctance. He feared that the state of the law which the Court found to exist inflicted a hardship on the Canadian publisher, while it conferred no very valuable benefit on the British author. "Its effect," he went on, "if I rightly understand the matter, is to enable the British author to give an American publisher a Canadian copyright. It is no very violent assumption that every American publisher who treats with a British author for advance sheets of his work, will stipulate for the use of the author's name to restrain a Canadian reprint. By this arrangement he will be enabled to secure the practical monopoly of the Canadian market, for which he may be induced to pay the author some consideration; but, however small this consideration may be, I apprehend it will be found sufficient to induce the author to concede the privilege rather than secure Canadian copyright by treating with the Canadian publisher. But I need scarcely remark that the possible or probable effect upon a branch of industry, however valuable or important, cannot affect the interpretation which the Court is bound to place upon the statutes by which the subject is governed."

In 1875 the Canadian Parliament passed the present Canadian Copyright Act. To remove doubts as to its constitutionality, the Imperial Parliament passed an Act expressly empowering her late Majesty to assent to the Canadian Act. The effect of the Canadian Act is (1) to enable a British copyright holder to obtain copyright in Canada (and thus, while the Foreign Reprints Act was in force in Canada,