Commentary on:
Privilege granted to Gonçalo de Baena (1536)

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Gonçalo de Baena was a musician, a composer and a Spanish music teacher. Early on he established his business in Portugal and performed services for King D. Manuel I and King D. João III. 

He was awarded the first privilege attributed, in Portugal, to an author. Earlier privileges, granted to Valentim Fernandes, which were recorded in various sources, bear chronological significance. They were innovative as Valentim Fernandes obtained the first lot of privileges in Portugal.

However, as it happened in most European countries, these privileges were not granted to an author but to a printer. Privileges were granted, by Portuguese monarchs, as early as 1502, but they benefited those who invested in the printing business rather than authors. The attribution of privileges to authors occurred subsequently.

Surprisingly, some authors focus not on this earlier privilege given to Gonçalo de Baena but on a privilege which was awarded to Baltasar Dias. Rebello acknowledges that “there was an isolated case of protection bestowed upon a visually impaired author, from Madeira Island, creator of the very popular Auto de Santo Aleixo, Tragédia do Marques de Mântua and trovas sobre a Malícia das Mulheres, who was granted a privilege to print his works, by D. João, in 1537” (REBELLO, Luiz Francisco, Código do direito de autor e dos direitos conexos, Lisbon, Âncora Editora, 1998, p. 11.) and Pereira follows suit  (PEREIRA, Alexandre Libório Dias. Direitos de autor e liberdade de informação, Coimbra, Almedina Editora, 2008, p. 52).

However, the relevance of the Baena privilege becomes undeniable when one examines the original sources. The fact is that the Baena privilege is dated 19th June 1536 and the Dias privilege is dated 20th February 1537. It is clear that the Baena privilege emerged first and that fact cannot be ignored.

It is possible that the Baena privilege was deemed less important than the Dias because Baena was a musician with the royal court and thus relatively close to the King. Or perhaps the fact that Dias was a visually impaired writer somehow influenced perceptions in this context. Also the relevant work was thought to have been lost until a copy of it was found in the Spanish National Library.

In any case, the privilege granted to Gonçalo de Baena seems to also have been the first to entail a fixed term of protection – a concept which would later be know to all as the King awarded the author, and him alone, the right to print a literary work and various musical works, for a period of 10 years.

In addition to establishing a privilege, the royal decree also stated that those who carried out the non-authorised printing of said works would incur in a pecuniary fine and all copies thus made would be apprehended (“alem da pena de cynquoenta cruzados perdera os livros que asy emprymir”).

These pioneering enforcement mechanisms set out in the royal decree remain relevant to this date both in the Portuguese and Brazilian copyright systems. In Brazil, article 107 of Law 9610 / 98 prohibits the usage of goods for criminal purposes and determines the apprehension of the latter (“independentemente da perda dos equipamentos utilizados, responderá por perdas e danos”) and a similar provision can be found, in Portugal, in article 201 of Law 63/85 (“serão sempre apreendidos os exemplares ou cópias das obras usurpadas ou contrafeitas, quaisquer que sejam a natureza da obra e a forma de violação”).

If one turns to the book cover, one notices that it expressly exhibits the words: “with royal privilege”. The reference to the existence of authorisation or licence to print became the norm in those days as monarchs attempted to control and discretely censor works that were considered unacceptable or a threat.

The privilege under examination describes a work to be used in a teaching context, essentially a work of a literary nature but also containing musical elements (“hÅ©a obra e arte pera tanger” or “arte novamente inventada pera aprender a tanger” or “a arte de tanger”).

The work in question is crucial if one wishes to understand and study Iberian keyboard-based musical works of the XV and XVI centuries, especially the period corresponding to the reigns of King D. Manuel I and King D. João III.

According to Owen Rees, “finally, our knowledge of music at the Portuguese court during the time of Manuel I and João III has been enhanced by the recent discovery of a copy of Gonzalo de Baena's Arte novamente inventada pera aprender a tanger (Lisbon, 1540), a source which provides further clues regarding the importance of Spanish and other foreign musical repertories in Portugal at this time” (REES, Owen, Manuscript Lisbon, Biblioteca Nacional, CIC 60: the repertories and their contexto, Revista Portuguesa de Musicologia 4-5, Lisboa, 1994-95, p. 54, http://rpm-ns.pt/index.php/rpm/article/viewFile/147/150).

Thus, the work of Gonçalo de Baena bears significance because of its contents and, as noted above, it cannot be ignored in the realms of copyright history.

The work was first published in 1540 by a printing pioneer, Germão Galhardo, but the printing privilege had been bestowed upon the author. The privilege had been attributed to the author in detriment of the printer, to the intellectual creator and not the entrepreneur.

Philosophically this trend would later emerge within the droit d'auteur system, on the basis that the author, as intellectual creator of the work deserves the benefits stemming from its legal protection (see, inter alia, MERGES, Robert P. Justifying intellectual property. Cambridge/London,Harvard University Press, 2011, Dicionário Locke. Rio de Janeiro, Zahar, 1993; DRAHOS, Peter, A philosophy of intellectual property. London: Ashgate Publishing Limited, 1996;  ADOLFO, Luiz Gonzaga Silva,  As teorias da propriedade intelectual e a possibilidade de novas fundamentações teóricas do direito autoral, in Direito da Sociedade da Informação – volume VIII, APDI, Coimbra, Coimbra Editora, 2009; DRUMMOND, Victor Gameiro, Em busca do juiz plagiador: contribuições para a teoria da decisão baseada na hermenêutica jurídica sob o olhar do direito de autor, Florianópolis, Empório do Direito, 2017).

The Baena privilege was pioneering in the sense that for the first time, in Portugal, a privilege was awarded to an author and not to a printer. More than 30 years later this becomes the norm.

Even though the Baena privilege was followed by many privileges granted to printers rather than creators, it may have paved the way for other author-based privileges, such as the one conferred on Baltasar Dias.

Translated by Patricia Akester


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