Section VII Registration of Performing Rights
Section 20 of 5 & 6 Vict. c. 45 enacts that “the provisions hereinbefore enacted” in respect of registering the copyright in books shall apply to the liberty of representing or performing any dramatic piece or musical composition; provided that in the case of a dramatic piece or musical composition in manuscript it shall be sufficient to register—
1. The title.
2. The name and place of abode of author or composer.
3. The name and place of abode of the proprietor.
4. The time and place of first representation.
In the case, therefore, of a dramatic piece or musical composition which has been published as a book, the proper registration in respect of both copyright and performing right would seem to be that provided by section II, viz.:
1. The title.
2. The time of first publication.
3. The name and place of abode of the publisher.714
4. The name and place of abode of the proprietor.715
This is probably correct, although it may not strictly be in accordance with the proviso in section 20, viz.:”save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent in the construction of this Act to the first publication of any book.” If, however, the provision as to registration in section 11 were strictly construed in accordance with this proviso, the result is that the proper registration would be:
1. The title.
2. The time of first representation.
3. The name and place of abode of the person who first represented it.
4. The name and place of abode of the proprietor.
It is obviously absurd that this should be the form of registration when the dramatic piece or musical composition has been printed and published, and that the form in section 20 should be the form of registration when it is in manuscript. The distinction between the two forms is meaningless.
Section 24 of 5 & 6 Vict. c. 45, which enacts that no action for infringement of copyright shall be brought unless the book is registered, provides “that nothing herein contained shall prejudice the remedies which the proprietor of the sole liberty of representing any dramatic piece shall have by virtue of the Act 3 & 4 Will. IV. c. 15, or of this Act, although no entry shall be made in the book of registry aforesaid.”
The provisions as to registration of dramatic pieces are therefore merely permissive and are in no way a condition precedent either to the performing right itself or to the right of action upon infringement;716 but registration is primâ facie proof of the right of representation subject to rebuttal by other evidence.717
All the provisions as to the keeping of the registry book,718 making false entries therein,719 and motion to expunge,720 apply equally to registration of a dramatic piece for the purpose of protecting performing right as to registration of a book for the purpose of protecting copyright.721
Musical Compositions.—The requisite registration is the same as for performing rights in dramatic works; but quære whether in the case of performing right in a musical composition it is not a condition precedent to action. This doubt is raised by section 24, which provides that the registration of a book is a condition precedent to an action for infringement of copyright, and it specially excepts “the remedies which the proprietor of the sole liberty of representing any dramatic piece shall have” from the operation of the section. It is curious that “musical compositions” are omitted from this saving clause, whereas in nearly every other part of the Act “dramatic piece and musical compositions” are dealt with together. The arguments against registration being a condition precedent are, (1) the first part of section 24 relates only to copyright which does not include performing right; (2) section 20 does not extend the provisions of section 24 to performing right, since it only applies the provisions “before enacted.” There is also a suggestion that “dramatic piece” in the saving clause of section 24 includes “musical composition,” since the definition of “dramatic piece” in section 2 includes “musical or dramatic entertainment.” There is no authority directly in point. In Russell v. Smith722 the song called “The Ship on Fire” was protected without registration, but then it was held to be a “dramatic piece” and something more than a musical composition. In Clark v. Bishop723 the song protected was also held to be a “dramatic piece.” In Lacy v. Rhys,724 where it was held that in the case of a dramatic piece there was clearly no obligation to register, Crompton, J., said that if it had not been for the proviso in section 24, there would have been a doubt whether registration were not necessary.725
In registering an unpublished arrangement of dance music taken from an opera, the arranger, not the composer of the original opera, must be entered as composer.726