Commentary on:
Privilege granted to Baltasar Dias (1537)

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Dias was a writer and fearing that his works could easily be used by others to his detriment and that he would not be able to make a living as a writer, petitioned the King.

As a result Dias was awarded a privilege enabling him to print his works to the exclusion of others.

Such privilege is often given more significance than the prior one attributed to Gonçalo de Baena. The Baena privilege should not be ignored though (see the respective commentary).

The Dias privilege emerged from a petition by Dias himself to the King. Dias asked to be granted the exclusive  licence or authorization to print his works  (“algÅ©as obras asy em prosa como em metro, as quaes foram ja vistas aprovadas e allgÅ©as dellas ymprimidas”), whether already created and published or to be created and published.

Dias invoked his disability in his petition to the King, expressly grounding his request on humanitarian reasoning (“por ser homem pobre e nam ter outra yndustria pera viver por ho caricimento de sua vista senam vender has ditas obras, me pidia ouvese por bem, por lhe fazer esmolla, dar lhe privilegio pera que pessoa allgÅ©a não posa ymprimir nem vender suas obras sem sua licença”). That is, Baltasar Dias asked the King to consider his condition, as visually impaired, when deciding whether or not to attribute the printing privilege in question.

It is possible that the fact that the privilege was granted out of compassion somehow led to the erroneous belief that this was the first privilege ever to be awarded in Portugal to and author.

It should be noted, though, that whilst the King did consider the disability of the author, he also mentioned that Baltasar Dias was not able to make a living in any other manner.

D. João III took into account the fact that Dias was disabled and had little means, but also his need to make a living from his creative endeavours (“não tinha outra indústria para viver”).

That is, the King considered the difficult situation of the author, from a health and financial viewpoints, but also the fact that Dias required the fruits of his industry to survive - a concept that remains valid to this day. The King was ahead of his time as he acknowledged that as a creator Dias should be allowed to reap the rewards of his métier.

The privilege under examination is also pioneering in the sense that it protects the freedom to select a certain profession and to carry it on without constraint.

Furthermore, unlike the privilege granted to Gonçalo de Baena, which applies solely to a particular work, the Dias privilege is broader in scope, covering all present and future works of the relevant author. The notion of generic attribution of certain prerogatives to an author in connection to all works generated by him emerges, too, as a pioneering concept. The Dias privilege is conceptually closer to present copyright principles, whereas the Baena privilege is more akin to a licence.

It should also be noted that the Dias privilege contains a censorship requirement regarding themes of works. Works were to be subject to careful perusal before being printed, to ensure compliance with principles of faith (porem, se elle fizer algÅ©as obras que toquem em cousa de nosa santa fee, nam se ymprimiram sem primeiro serem vistas e enjaminadas por mestre Pedro Margualho, e sendo por elle vistas, e achando que não falla em cousa que se não deva fallar, lhe passe diso sua certidam, com a quall certidam ey por bem que se ymprimam as taes obras e doutra maneira nam” ).   

Censorship of works suddenly became a crucial element in connection to attribution of privileges. See, for example, the privilege awarded in 1572 to Luiz de Camões, considered Portugal's greatest poet (in fact Portuguese is sometimes called the language of Camões) regarding his epic and seminal work, Os Lusíadas.

The Dias privilege fails to set a term of protection which does not mean that protection was to last for the duration of the author's life. Lifetime terms had not emerged by then but, occasionally,terms of protection of 10 years.

It could be argued that the King had decided to observe the behaviour of the author, especially whether his works required suppression or prohibition, and decide on that basis. However, the King could have set a term of protectionand still have withdrawn the privilege at any point in time. It is likely that the absence of a term of protectionwas owed to both oversight and tradition.

In any case, the Dias privilege is crucial in various ways.

The privilege was awarded to the author, exclusively, regarding any present and future works authored by him. Earlier privileges granted to printers such as Valentim Fernandes, Cromberger and Galharde, benefited not the creator but the investor. In the Baena and Dias privileges the author is the sole beneficiary of protection. 

The Dias privilege also considers that as a creator Dias should be allowed to reap the rewards of his creative endeavours in order to make a living.

Furthermore, the Dias privilege is broad in scope, covering all present and future works of the relevant author almost invoking present copyright principles.

The privileges granted to Gonçalo de Baena and Baltasar Dias are a turning point in Portuguese copyright history.  A time at which a decisive change  occurs, with beneficial results from the author's perspective. The author emerges as an important element of the equation, a notion which is stronger in the Dias privilege than in the Baena privilege:

i) The Baena privilege covers a single work whereas the Dias privilege protects all works produced by the author or to be produced;

ii) The Baena privilege is awarded to a member of the court whereas the Dias privilege benefited a pauper who had no social connection to the monarch;

iii) The Dias privilege was awarded because the author was disabled, had little means and needed to make a living from his creative endeavours. Such privilege protects the freedom to select a certain profession and to carry it on without constraint.

Both privileges are of enormous relevance in the context of Portuguse copyright history, but only the examination of both enables the proper understanding of its subtle development and the realisation that there were those, such as King D. João III, that saw the author as the legitimate beneficiary of printing rights.

Translated by Patricia Akester

 


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