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J.F.F. Ganz's draft for a general ban on reprinting within the whole Empire, Mainz and Fulda (1790)
Source: Retrospektive Digitalisierung wissenschaftlicher Rezensionsorgane und Literaturzeitschriften des 18. und 19. Jahrhunderts aus dem deutschen Sprachraum, http://www.ub.uni-bielefeld.de/diglib/aufklaerung/index.htm.
Citation:
J.F.F. Ganz's draft for a general ban on reprinting within the whole Empire, Mainz and Fulda (1790), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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Chapter 1 Page 1
XIII. Regulations, Edicts. 405
[...]
__________________________________
XIV.
A brief outline of the reasons for the harmfulness of reprinting for
literature, the book trade, and the reading public in the German
Empire, together with suggestions for the eradication of this
evil by means of an appropriate provision in the next
electoral capitulation for the Empire. June 1790.
§. 1
That the reprinting of books, being an
act of piracy which is perpetrated against
the property of another person, regardless
of whether that person is a writer or a
publisher, is an illegal and punishable
activity, has been demonstrated to such an
extent that it ought to be self-evident.*
_________
* "The reprinting of books, examined in the
light of true principles of law", by
J. S. Pütter, Göttingen 1774.
"Presentation of the reasons for the property
constituted by the publishing right, in accordance
with principles of natural right and political
wisdom" by Privy Councillor Feder, "Göttingisches
Magazin" for the year 1780.
"Report of the Imperial Commission for [University]
Studies and Censorship in Vienna on the
[Col. 2]
reprinting of foreign books" by Privy Councillor
von Sonnenfels, "Journal von und für Deutschland",
1785.
"On the property right in intellectual works" by
R. Z. Becker etc., 1789.
"The banning of reprinting considered as a matter
which necessarily and unhesitatingly ought to be
transferred to those remedies which are provided by
supreme Imperial authority" by A. C. Kayser, Regensburg 1790.
"An outline of the reasons for the punishable
nature of reprinting, and suggestions on how this
evil could be prevented by means of a generally binding
Imperial law", Regensburg 1790.
Chapter 1 Page 2
406 XIV. A brief outline of the reasons
§. 2
The harm which is caused by it affects not
just the owner who is robbed in broad daylight, as
it were, but, rather, its fatal consequences extend
to the German book trade, the whole of German litera-
ture and the whole German public.
[How it harms] the book trade. Having been
frightened by reprinting from almost all directions,
no bookseller can longer dare to undertake the
publication of a work which is beneficial to the
community and has been composed with great effort.
He must therefore restrict himself to publications
which sell quickly and do not require any large
investment of capital. The prices must of necessity
be higher if one has to spread out one's expenses
and profits over 400 copies, rather than 800. It is
because of this that book prices are so high, and
that there are so many short works, pamphlets, and
frivolities in circulation. It is a head start of
barely a few months that the legitimate publisher
gains over the reprinter! The honest publisher
realises that the price of his publications is too
high, but it is self-defence which compels him to
set them this high; and if this state of disorder
persists, then he is in danger of never again being
able to undertake the publication of a work of the
intellect, of whatever kind it may be, because both
the book retailer and the public will be drawn to
the much cheaper prices of reprints. The bookseller
can no longer carry on buying expensive original
editions, since the majority of clients will
understandably be looking to buy cheap ones. The
reprinter thus swamps every region with the spoils
of his piracy, and those local booksellers who do
not wish to become receivers of stolen goods nor
accomplices of the reprinter, are driven into
ruin.
[Col. 2]
Literature. Works which are beneficial to the
community, laborious products of the intellect are
no longer able to find a publisher. The remuneration
for the effort and time expended by scholars on their
works ceases to be forthcoming. The public becomes
accustomed to merely entertaining, easily put
together works: but what there will no longer be is
encouragement through the approbation of discerning
readers for those writers who require several years
in order to give their works the highest possible
degree of perfection. Writing becomes monopolised by
those scholars who have already acquired a certain
reputation, as they no longer have to fear much
competition. A man of intelligence and enterprising
spirit is forced to write for the newspapers, that is,
to take the easiest path in order to prosper more
readily, to work quickly and superficially, to choose
topics which have no more value than that of their
novelty or peculiarity. And in this way scholars,
writers, and booksellers help in sounding the death
knell for the sciences because reprinting prevents
them from undertaking any projects of substance. The
iron age sets in before the golden age had even
reached maturity.
The public. For a short while yet the legitimate
publisher will be able to survive alongside the
reprinter. As long as this is the case, the former
will have to levy a surcharge for the novelty of a
work. It is not his fault, however, but rather that
of the reprinter whose activities are tolerated if
the public is made to pay a twofold price for books.
Neither is it his fault if the public becomes
accustomed to shallow literary works, and eventually
even takes a fancy to them. For he cannot take the
risk any longer of publishing intellectual products
of substance and works that are of benefit to the
Chapter 1 Page 3
for the harmfulness of reprinting 407
community. Habit and necessity also lend weight
to the mediocre scholar; the opportunity for
healthy competition and comparison between
writers disappears, and the mediocre author
takes the place of the outstanding one. The
flourishing of the sciences is replaced by
study of what is merely fashionable; brochures
push out larger works; libraries fall out
of fashion; the writer is reduced to the level
of a common mercenary: all these are direct
consequences of tolerating reprinting.
§. 3
Given these so self-evident reasons for
the harmfulness of reprinting, it is incredible
that princes who are noted for their insights
and love of justice nevertheless grant a
sanctuary to reprinters in their territories.
However, it is clear that their good Christian
faith has been taken in by false pretences of
a legitimate self-defence against the rising
price of books, and of the need to recourse to
just measures of repression. However, it is only
because of the danger of reprinting that the
prices of books have risen and continue to do
so daily. If the evil can be uprooted, though,
then its fatal consequences will also disappear.
The cries of some who look with envious eyes at
the prosperity of their more diligent colleagues
have no relevance whatsoever here. The wholesale
book trader, or he who trades solely with his own
in-house publications, selling them for cash, is
equivalent to the first-hand manufacturer in other
branches of commerce. The less he is restricted,
the less encroachments he has to suffer, the
cheaper can he sell his products, as a result of
which both retail booksellers and the public
will benefit. No monopoly is conceivable here,
since, in view of the fact that there is great
competition amongst publishers and retail book-
[Col. 2]
sellers, that trader will be the most sought after
who has acquired the reputation of offering a wide
selection and who has been able to defend this
reputation. In an unrestricted state, where there
is protection against acts of piracy, several
traders can attain this goal at the same time.
The encouragement of a large number of factories,
whose products are also of good quality, acts as
a stimulus for improvements and attracts buyers,
as well as leading to cheaper articles. It is
therefore simply a false pretence to claim
that reprinting prevents books from becoming more
expensive, not to speak of the incomparably
poorer print and paper quality used by reprinters.
In southern Germany booksellers are generally
wholesalers and retail booksellers at the same
time. They suffer doubly from the acts of piracy
committed by reprinters. Therefore, if a prince
privileges or protects a reprinter in his realm,
the result of this is that the other booksellers
in his lands who are honest people will little
by little be forced into ruin. If one were to
accept the principle that the end justifies the
means, then all security of ownership would cease;
then crimes of all kinds, which are condemned by
morality and punished by positive law, could be
used as self-defence. The benefits which a reprinter
or a gang of such robbers bring to a state are
transient. The source from which they draw their
water must eventually dry up, and then they will
have no option but to wear each other out amongst
themselves. There is no state in all of Germany
in which all the books are reprinted that the
subjects and servants of the prince need for their
official duties and their leisure. The prince
himself - and all of our princes protect and
respect scholarship - does not buy any reprints, but
Chapter 1 Page 4
408 XIV. A brief outline of the reasons
original, albeit more expensive editions. So the
cash that is brought into circulation by the
reprinter into the country in which he resides
flows out of it again to an incomparably greater
extent. And even if we assumed that the balance
worked out in favour of the reprinter, would
this make his actions any less criminal? An unjust,
immoral action cannot be justified by anything, no
matter whether it is undertaken for the benefit
of the church, the state, or the coffers of the
treasury. By forbidding reprinting, every sovereign
prince would make it easier for the honest book-
sellers in his realm to expand their legitimate
business, and the reprinter would be forced to
take up honest publishing and ensure that he has
a good assortment of books to offer. This would
encourage able minds in every province of Germany
to devote themselves more assiduously to the
sciences and to make much more of their talent
than has been the case so far. Every German province
would, alongside its own constitution, alongside
its own dialect, also have its own favourite
branch of literature. The whole would gain immeasurably
from such an improvement of the individual constituent
parts.
To what extent princes are entitled to take
repressive measures against genuine, or even just
seeming, encroachments, is not for private persons
who are seeking assistance to decide, even though
the right to make one's own judgements may well be
one that is by nature intrinsic to man. Given that
reprinting is so widespread, just princes can easily
be seduced into the delusion that they would be
depriving their realms of a branch of industry if
they did not reward reprinting like their neighbours.
Thus, the upshot is that the northern princes also
allow their booksellers to reprint the good-quality
intellectual products from southern Germany.
[Col. 2]
A similar fate befell German trade in general during
those woeful times in which it was on the verge of
being ruined by custom-duties and taxes from all
corners and directions. Let us assume for one moment
that the universality of reprinting entitled every
prince of the Empire to adopt the same recourse, and
to tolerate, and perhaps even encourage, this literary
piracy in his own lands as a form of protection tariff:
the result will be that booksellers from northern and
southern Germany will rush in upon a good publication
at the same time. He who is able to reprint the quickest,
that is, with the most miserable quality, will certainly
thereby gain a small head start, but the competition
from the reprinter following in his tracks will deprive
him of a good part of his spoils. So the reprinters
would not only ruin the legitimate booksellers - they
would also ruin each other mutually, and literature
and the book trade would reach such a state of decay
that the robbers would soon lose all opportunities of
finding any booty to steal in the first place, so that
only a general prohibition of reprinting would bring
the book trade back to life, which therefore means
that any grounds for taking repressive measures
cannot be valid at all.
§. 4
Moreover, this branch of German commerce, which
is in danger of suffering general ruin, is not
actually that insignificant. One may take it as a
given fact - which can also be demonstrated by a
very straightforward calculation - that every year
the book trade causes 2 million gulden to circulate
across all of the German provinces which form part
of the union of Imperial estates. And in this
capital sum the booksellers of southern Germany,
partly as wholesalers, partly as retail booksellers,
and partly as both of these,
Chapter 1 Page 5
for the harmfulness of reprinting 409
have their due share, and possibly the largest one,
too, if the booksellers of independent Switzerland
are not counted together with the booksellers from
the Imperial territories. Of this capital sum, which
is brought into circulation by honest industry, the
reprinters of books steal at least half a million
every year. The fact that their actions are not
punished, the ease with which they can thereby earn
a livelihood, encourage others to also seek to reap
where they have not themselves sown. Exorbitant book
prices, light-weight and frivolous literary phenomena,
are all consequences of this. But soon there will not
even be anything left to rob: and after that, all that
we will have is barbarism!!!
§. 5
In northern Germany, where one can find
several larger homogenous states, where the sovereign
princes can give protection through privileges and as
a result on being on good terms with their equally
powerful neighbours, where the greatest possible
security of ownership is interweaved into the
administration of these states' finances, honest
publishing will be able to maintain itself upright
for longer than in southern Germany, but it will
inevitably suffer losses - and significant ones at
that. The book trade in the smaller and more
fragmented states of southern Germany cannot exist
except in conjunction with northern Germany.
Germany's ablest minds do not go after the
mildest climes - rather, they take up residence
where the security of property is guaranteed the
most, where there is the greatest freedom of
thought, and where they can expect the best sales
for, and the greatest profit from, the products
of their intellect. Few are the booksellers in
southern Germany who are still in a position to
reward according to merit an author who has
already won the esteem of the public, or even
[Col. 2]
just according to the esteem that the author can
reasonably be expected to acquire thanks to his
work, and there will be ever less of such book-
sellers as long as the evil principle prevails
that what has been lawfully published and printed
in Frankfurt-on-the-Main, can be reprinted in
Reutlingen without fear of punishment and then
distributed for public sale across the whole of
the German Empire. When a bookseller in the Empire
does occasionally succeed in encouraging an emerging
genius to take up writing, in supporting his talent
and presenting him to the public, the union
between the two is nevertheless very short-lived. The
obligations of the writer towards his godfather, as
it were, are as fleeting as those of the educated
person towards his former teachers. Strictly speaking,
no real obligation - that is, one on which a legal
claim could be based - can be said to be present
in the given case. As a result of the decline of the
German book trade caused by reprinting, therefore,
all the able minds of the southern half of the
Empire will be forced to migrate to the northern half.
There, however, excessive competition amongst writers
will ensue, intellectual works will become no more
than articles for speculation at the fairs, the level
of scholarship will fall, and with it also the demand
for literary works. Author's fees will also fall
automatically. Whereas if, on the contrary, a reason-
able balance were to be preserved both in northern
and southern Germany, the scholar would then be able
to request an appropriate price for his work from
the bookseller.
§. 6
Hitherto the supreme head of the Empire has not
been able to protect the Empire's booksellers from
the piracy committed by reprinters, although both
early and recent Imperial charters, of which we shall
only mention the most recent one of 10 February
Chapter 1 Page 6
410 XIV. A brief outline of the reasons
1746, strictly forbid the reprinting of books -
albeit only where an Imperial printing privilege
is concerned. To what extent Imperial printing
privileges can restrict the sovereignty of the
princes in their own territories, is a matter
which only the princes can decide. Moreover, even
applying to the Imperial Exchequer, in cases where
Imperial printing privileges have been violated,
is an expensive and protracted process, which does
not lead to any substantial success, since long
before the assistance of the Imperial Court can
become effective, the reprinter's edition will
already have been sold, whereas that of the legi-
timate publisher will have remained unsold. Not to
mention the wounds inflicted by the debate on
the question as to whether the supreme superintend-
ence of the book trade in the German Empire is an
Imperial prerogative? The protection which the
larger, homogenous states of northern Germany can
afford to their booksellers through particular
sovereign printing privileges cannot cover all
book traders operating in the Empire.
§. 7
However, assistance against reprinting can
certainly become universally beneficial if the
following propositions, which are based on right
and justice, and which are in complete harmony
with the German Imperial Constitution, are used
as a starting-point:
I. The manufacture of books, printing, and
the sale of printed paper is a genuine sphere of
commerce, to which police regulations apply, and
which is the responsibility of the sovereign
superintendence in each territory.
II. The sovereign ruler is obliged to protect
every citizen of his lands in the unmolested owner-
ship of his property, and to grant him the best
possible benefit which he can make out of the latter,
[Col. 2]
which means, therefore, that he must also protect
the writer and his inseparable assistant, the
bookseller.
III. This protection can only be effective if
the prince is also just towards the citizen of a
neighbouring state, and does not allow the latter's
property to be violated in his lands.
From these three propositions, if they are
put into practice, it is possible to derive every-
thing that can restore the health of literature and
the book trade. In order to ensure cheap book prices,
it will not then prove necessary to introduce any
coercive laws. The competition of publishers and
clients [amongst themselves] would soon cause the
book prices to drop. Commerce derives its laws from
itself: as long as the state protects property,
facilitates the means of earning a livelihood, and
comes to the aid of honest manufacturers against
deceit and robbery, the public can count on the
wares being of the highest quality and on the prices
being as low as possible.
§. 8
The means by which these propositions can be
made self-evident to all and universally applicable,
are very straightforward.
So far the whole Empire, and all of its high
estates, have pursued the praiseworthy task of
creating a complete freedom of commerce, and to
remove all obstacles that might stand in the way
of this freedom, amongst which the most prominent
were arbitrary and excessive custom-duties, the
abuse of the [Golden] Bull of Brabant etc. (Gerstlacher's
"Handbook of the German Imperial Laws", Pt. 10). The
patriotic solicitude of our high legislators even
occupied itself with the most detailed specificities
of trade: wines, cloths, their colour and treatment,
length of cut, size, and
Chapter 1 Page 7
for the harmfulness of reprinting 411
weight, spices, medical substances, rates of freight,
daily wages and servants' wages, gold- and silver-work,
money trading, were all subject to general Imperial
police regulations - not because the Imperial estates
were in any way inclined to favour commercial fraud
and deceit, but because the pure principles of commerce
were not universally known and its administration
was in the hands of a small number of people who
could thereby easily prescribe any laws they wished
to their clients. The joint power of the head of the
Empire in conjunction with all of the estates, there-
fore had to provide swift assistance in this case:
nevertheless, in all Imperial police statutes concerning
German trade the individual competence of each sovereign
territory is by no means restricted; rather, the
sovereign authority is urged to keep an eye on the
elimination of any obstacles to commerce. Now that the
principles on which trade rests are no longer a secret,
since it is an acknowledged fact that only that state
may enjoy thriving prosperity which promotes inland
trade, and that this prosperity cannot be produced and
maintained other than through security of property and
protection against deceit, it is no longer necessary
for general Imperial police statutes to be issued
with regard to this sphere. The noble estates of the
Empire individually carry out a priori - if we may
use such learned terms - what the whole Empire had
given occasion to a posteriori several centuries ago.
Thus, customs abuses - once the ruin of German trade -
have ceased automatically, since the prince who were to feel
himself inclined to impede trade in his realm by means of
custom-duties, thinking that this financial
[Col. 2]
machination will bring him instantaneous profit, would
be in danger of seeing all transit trade diverted from
his lands and attracted to his neighbour's realm, where
the custom-duties are not as high. A merchant will not be
afraid of any danger or inconvenience, as long as he can
thereby save something on the cost of transporting his
wares. This is a proven and acknowledged fact: one need
only look at the kings of the German rivers, and make the
comparison between water and overland transport - but
this is not pertinent to the subject we are dealing with
here. The following conclusion may, however, be drawn
from this: that, since the principles on which the book
trade, in particular, rests are still not as generally
known as the principles of the other branches of German
commerce, the legislative power in the Empire must
intervene here.
§. 9
This matter ought certainly to be raised at the
next Imperial Diet, and assistance will surely be
forthcoming from this lofty authority. But alas, good
Lord! the complications that always pile up whenever
a matter of this kind is to be implemented there! If
even princes of the Empire are not able to have their
most important concerns presented and discussed there;
if the cathedral chapters who arrive there seeking
assistance are first posed the question as to whether
a private person, or a body of private persons, has
the right to appeal to the Imperial Diet, what fate
can one await for a matter which is of concern to
a corporation of plebeians, especially in view of the
fact that quite a few princes and other estates,
especially many of the praiseworthy Fee Cities, would
act as spokesmen for the reprinters?! The Appeals
Council has gone out of fashion, and as a result
no assistance can be expected from the Imperial Diet
Chapter 1 Page 8
412 A brief outline of the reasons
for anyone who is a mediate subject of the Empire.*
§. 10
Given such a bleak outlook, German literature
and the German book trade, which has also been
suffering heavily, can find no other refuge than
in the bosom of the most noble College of Electors.
Ever since the Electoral Capitulation of Charles V,
whom we hold in such glorious remembrance, the most
noble Electors of the Holy Roman Empire have been
entitled to demand of the head of the Empire who is to
be elected that he should commit himself to take
German trade under his wing. In the most recent
Electoral Capitulation, namely in Art. VII, §. 1, this
is stated explicitly: "Moreover, it is our obligation
and wish to promote maritime and overland trade in the
Empire to the best of Our ability" Wholly in accord
with this is the draft for the permanent Electoral
Capitulation of 1711 that was worked out by the two
supreme Colleges of the Empire, for Art. VII of this
states: "Furthermore, the ruling Roman Emperor must
and will promote trade within the Empire". This passage
encapsulates everything that can be found in all
preceding Imperial laws for the promotion of German
trade, and what the Peace of Westphalia (Art. IX, §. 1,
nr. 2) enjoins on all Imperial estates as a holy
obligation. Promotion of commerce is inconceivable
without elimination of the obstacles that stand in its
way: thus,
[Col. 2]
the providence which this entails cannot just limit
itself to general aspects - rather, if it is to be
genuinely effective, it must deal with all the roots of
the problem. After all, the most noble Prince-Electors
of the German Empire deigned, at the preceding
Electoral Capitulations, after unanimous consideration
of what was required at that specific moment, to
preclude the decline of trade by eradicating all customs
abuses, by vigilance and by establishing the cases in
which new custom-duties could be levied and/or raised,
rather than just contenting themselves with a general
declaration of good intentions for the promotion of
commerce. Is it possible that these lofty guardians of
German welfare and of the German constitution should in
this case, when the danger of a decline of literature
and the book trade is so evident, prove to be less
patriotic than their most illustrious predecessors?
§.11
The effect which customs abuses have on trade
in general can rightly be likened to what reprinting
is doing to literature and the book trade. The principle
that such customs abuses and other ways of oppressing
trade can be prevented in an Electoral Capitulation,
has never been disputed by the princes or estates, since for
a while now it has been the law throughout the German
Empire that nothing may be tolerated therein which
_____________________
*) Even so, such a proposition cannot be realised
without an assembly of the Imperial Diet. The Prince-
Electors are, it is true, entitled to exclusively
draw up the points of the Capitulation, but, on the
other hand, it is widely known how jealous the princes
are of this right, and how during every interregnum
there are vigorous calls for a permanent Electoral
Capitulation. The matter would therefore have to be
decided beforehand at Regensburg - something that will
awaken significant protest only amongst those estates
who protect reprinters. But even assuming that the
motion passed all three Colleges of the Empire with a
majority, there will always be various estates
who will, "si diis placet!" [if it
pleases the gods], invoke the priceless jewel of German
freedom, namely, the jus singulorum [right of
the individual], protest against the motion, and, like
the late Emperor Joseph II, encourage reprinting in their
lands clam vel vi [by stealth or strength].
Chapter 1 Page 9
for the harmfulness of reprinting 413
causes ruin to trade. Even though a few centuries
back the reprinting of books was not taken into
account, it is nevertheless the case that attention
was paid to the obstacles which impeded trade, and
the removal of these was entrusted to the care of
the most noble Prince-Electors, and the Imperial
laws enacted later were merely a re-iteration of
what had already been established in the most
binding terms at the Electoral Capitulation. If,
therefore, the noble College of Electors should,
at the next Electoral Capitulation, deign to
devote special attention to that particular branch of
German industry which is made up by the book trade,
and to eliminate everything that threatens to
undermine literature and the book trade, then,
strictly speaking, it is not a new law which is
hereby being drafted, but, rather, the provision
thus made is as appropriate to the extreme
necessity which calls it forth and to the ease
with which a remedy can be applied, as the
restrictions and prohibitions of customs abuses
which from time to time were set forth in Electoral
Capitulations. In particular, though, the princes
and other Imperial estates will be grateful to the
noble College of Electors if the principle of
sovereign superintendence of active and passive
book trade, and of the branches of industry
associated with these, is laid down without any
restrictions whatsoever.
§. 12
To what extent, and with which modifications
this might be achieved, is a matter best left to
those great and accomplished statesmen whom
Providence has appointed to weigh at the present
moment the welfare of the Empire and the preserva-
tion of its Constitution against the obstacles
which stand in the way of the former, and to
facilitate the means by which the head of the
Empire who is to be elected can bestow upon all
members of the Empire the protection of the laws.
Perhaps it is not hazarding too much to attach to
this most humble
[Col. 2]
request that curbing the reprinting of books should
be made into a general obligation, suggestions in
the form of brief sentences, together with analogous
quotations, as to how this can be achieved in a way
which is in accordance with the German Constitution.
I. No book, in which the names of the publisher
and printer are stated, and which has been printed
under the supervision and censorship of a German
Imperial estate, may be reprinted in any German
province *)
*) Imperial edict of 1529, §.9 - of 1530, §.58,
the "improvement of the policing regulations" of 1548,
Art. XXXIV, §.1; Imperial edict of 1570, §.156 and 159,
Imperial police regulation of 1577, Art. XXXV, §.2
Imperial edict for the whole Empire of 18 July
1715, and for the same purpose the Imperial charter of
10 February 1746, §.3.
II. The sale of such a reprint is nowhere to be
permitted *)
*) Imperial police regulation of 1577, §.2.
III. It is the duty of the Imperial Circles and
their directors to ensure that no reprinted publications
are imported into any Circles or printed in these. Every
member of an Imperial Circle, as soon as he finds out
about a violation of this ban, is authorised and obliged
to submit a certified notification of this to the
convoking lords and princes of that Circle *)
*) Imperial report of 24 July 1668, §.6 - Imperial
Commission decree of 10 October/30 September 1668.
IV. If the deceit of reprinting or its concealment
is discovered, or
Chapter 1 Page 10
414 XIV. A brief outline of the reasons
or the legitimate publisher brings an action to
this effect at the local authority in whose
territory of jurisdiction the reprinter had his
place of residence, then, in the first case, all
the reprint copies are to be confiscated and
destroyed; the reprinter is to be subjected to
a monetary or corporal punishment which is appro-
priate to the scale of the piracy committed by
him, and consequently all his belongings are to
be taken into the court's custody; and the
legitimate publisher who has been injured in his
property right is to be informed of this, so that
he may decide what further steps he wishes to
take in order to be indemnified; in the second
instance, on the other hand, as is the legal norm for
banking, industrial, and mercantile cases, summary
proceedings are used and, as soon as the corpus
delicti, i.e. the reprint copy or copies,
has been ascertained and the damages adjudicated,
parata execution [prompt execution] is to
come into immediate effect, after all of the
reprinter's personal assets have been impounded *)
*) Imperial edict of 1654, §.107.
V. However, the Prince-Electors, princes, and
estates are hereby at liberty to take all measures
which they consider to be necessary for the
elimination of reprinting and for its stricter
penalisation *)
*) Imperial police regulation of 1577, Tit.XX,
§.7.
[Col. 2]
VI. In the unlikely case of denial of justice
by the courts of Imperial estates, the two supreme
Imperial courts are to immediately come to the aid
of the plaintiff either with mandates S. C. [?], or,
depending on the circumstances of the case, with
express [instructions ?] for the administration of
justice *)
*) Electoral Capitulations of Maximilian II, Art.
XX, and of Rudolph II, Art. XVIIf.
VII. The Imperial Exchequer is also instructed to
proceed against the Imperial estates and circles who
fail to comply with these regulations, and, what is
more, regardless of whether the plaintiff requests
this or not *)
*) Electoral Capitulation, Art. VIII, §.12,
Imperial edict of 1530, §.137. Imperial police
regulation of 1577, Tit. XVIII, §§.6-12.
VIII. Every Imperial estate is at liberty to
take any measures that it considers appropriate for
raising the level of literature and the book trade
within its territory *)
*) Imperial report of 22 July/ 1 August 1668.
IX. The Imperial Circles, in particular, are
requested, apart from putting an end to reprinting,
to make the question as to how the book industry
might be re-vivified and increases in book prices
precluded,^ into the foremost object of their
__________________________
^ This is the 'knot' which I would wish to see
unravelled before setting forth the next point of
the Capitulation. For just as much as I desire that
legitimate publishers might be protected against
reprinters, I also wish that the reading public, too,
might be protected from the greed for profit of some
booksellers. Books are for the mind as indispensable
a necessity as bread is for the body. A good police
order must be able to take vigorous measures in order
to prevent the prices of either of these two commodities
from becoming too high. In fact, this increase in
book prices has a further reason which has nothing to do
with the price of a book as such, but with the excessive
postage costs charged for its delivery to the customer.
Thus, a few days ago, I found out that a subscriber to
my journal had to pay a postage charge of 1 florin for the
[January ?] issue, calculated for a distance of some 20
miles at the rate of the local post-coach. Thus, the
postage for 12 issues of the journal effectively turns out
to be 1 florin and 12 kreuzer more than the cover price
for a full year's set, which can be bought at all bookshops
for 10 florins and 48 kreuzer! I could cite thousands of
similar complaints. Surely literature, for all kinds of
reasons, deserves preferential treatment on the part of the
Imperial and municipal post-offices?
Chapter 1 Page 11
for the harmfulness of reprinting 415
deliberations, and to submit a formal report on this to
the Emperor and the Empire *)
*) Electoral Capitulation, Art.VIII, §.3.
§.13
The author of this essay is pursuing no other
intention than that of promoting what is best for
literature, the book trade, and the reading public.
Neither northern nor southern Germany, neither
wholesale book traders, nor retail booksellers,
neither the wealthier book-lover, who is able to
spend considerable sums on expensive editions
and on freshly published books, nor the poorer
friend of books, who has to take care that his
purse will last him for the whole year, neither
the writer who is fortunate to be in a well-off
position, nor the humble inhabitant of a garret,
receive any special or preferential treatment on
the author's part. He is and remains firmly
[Col. 2]
convinced that the decline of literature, of the
book trade, of good taste, the increase in book
prices, the excessive fees commanded by authors in
some cases, are all consequences of reprinting; and
that once reprinting has been extirpated, and the
book industry, by virtue of its commercial nature,
taken under the supervision of the sovereign authori-
ties, all these deleterious consequences will
automatically disappear. He confidently invokes the
testimony of all statesmen who are in charge of
commercial matters, and who will vouchsafe that it
is not necessary - nay, that it is most harmful - to
publicly fix the price of a specific commodity,
since complete security of property, protection
against deceit, facilitation of the means of redress,
etc. will stimulate competition amongst the
sellers, the result of which is to bring about
the cheapest possible price for the commodity
being sold.
Regensburg, printed with a [Lang ?] typeface,
1790.
Translation by: Luis A. Sundkvist
Source: Retrospektive Digitalisierung wissenschaftlicher Rezensionsorgane und Literaturzeitschriften des 18. und 19. Jahrhunderts aus dem deutschen Sprachraum, http://www.ub.uni-bielefeld.de/diglib/aufklaerung/index.htm.
Citation:
J.F.F. Ganz's draft for a general ban on reprinting within the whole Empire, Mainz and Fulda (1790), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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11 translated pages
Chapter 1 Page 1
XIII. Regulations, Edicts. 405
[...]
__________________________________
XIV.
A brief outline of the reasons for the harmfulness of reprinting for
literature, the book trade, and the reading public in the German
Empire, together with suggestions for the eradication of this
evil by means of an appropriate provision in the next
electoral capitulation for the Empire. June 1790.
§. 1
That the reprinting of books, being an
act of piracy which is perpetrated against
the property of another person, regardless
of whether that person is a writer or a
publisher, is an illegal and punishable
activity, has been demonstrated to such an
extent that it ought to be self-evident.*
_________
* "The reprinting of books, examined in the
light of true principles of law", by
J. S. Pütter, Göttingen 1774.
"Presentation of the reasons for the property
constituted by the publishing right, in accordance
with principles of natural right and political
wisdom" by Privy Councillor Feder, "Göttingisches
Magazin" for the year 1780.
"Report of the Imperial Commission for [University]
Studies and Censorship in Vienna on the
[Col. 2]
reprinting of foreign books" by Privy Councillor
von Sonnenfels, "Journal von und für Deutschland",
1785.
"On the property right in intellectual works" by
R. Z. Becker etc., 1789.
"The banning of reprinting considered as a matter
which necessarily and unhesitatingly ought to be
transferred to those remedies which are provided by
supreme Imperial authority" by A. C. Kayser, Regensburg 1790.
"An outline of the reasons for the punishable
nature of reprinting, and suggestions on how this
evil could be prevented by means of a generally binding
Imperial law", Regensburg 1790.
Chapter 1 Page 2
406 XIV. A brief outline of the reasons
§. 2
The harm which is caused by it affects not
just the owner who is robbed in broad daylight, as
it were, but, rather, its fatal consequences extend
to the German book trade, the whole of German litera-
ture and the whole German public.
[How it harms] the book trade. Having been
frightened by reprinting from almost all directions,
no bookseller can longer dare to undertake the
publication of a work which is beneficial to the
community and has been composed with great effort.
He must therefore restrict himself to publications
which sell quickly and do not require any large
investment of capital. The prices must of necessity
be higher if one has to spread out one's expenses
and profits over 400 copies, rather than 800. It is
because of this that book prices are so high, and
that there are so many short works, pamphlets, and
frivolities in circulation. It is a head start of
barely a few months that the legitimate publisher
gains over the reprinter! The honest publisher
realises that the price of his publications is too
high, but it is self-defence which compels him to
set them this high; and if this state of disorder
persists, then he is in danger of never again being
able to undertake the publication of a work of the
intellect, of whatever kind it may be, because both
the book retailer and the public will be drawn to
the much cheaper prices of reprints. The bookseller
can no longer carry on buying expensive original
editions, since the majority of clients will
understandably be looking to buy cheap ones. The
reprinter thus swamps every region with the spoils
of his piracy, and those local booksellers who do
not wish to become receivers of stolen goods nor
accomplices of the reprinter, are driven into
ruin.
[Col. 2]
Literature. Works which are beneficial to the
community, laborious products of the intellect are
no longer able to find a publisher. The remuneration
for the effort and time expended by scholars on their
works ceases to be forthcoming. The public becomes
accustomed to merely entertaining, easily put
together works: but what there will no longer be is
encouragement through the approbation of discerning
readers for those writers who require several years
in order to give their works the highest possible
degree of perfection. Writing becomes monopolised by
those scholars who have already acquired a certain
reputation, as they no longer have to fear much
competition. A man of intelligence and enterprising
spirit is forced to write for the newspapers, that is,
to take the easiest path in order to prosper more
readily, to work quickly and superficially, to choose
topics which have no more value than that of their
novelty or peculiarity. And in this way scholars,
writers, and booksellers help in sounding the death
knell for the sciences because reprinting prevents
them from undertaking any projects of substance. The
iron age sets in before the golden age had even
reached maturity.
The public. For a short while yet the legitimate
publisher will be able to survive alongside the
reprinter. As long as this is the case, the former
will have to levy a surcharge for the novelty of a
work. It is not his fault, however, but rather that
of the reprinter whose activities are tolerated if
the public is made to pay a twofold price for books.
Neither is it his fault if the public becomes
accustomed to shallow literary works, and eventually
even takes a fancy to them. For he cannot take the
risk any longer of publishing intellectual products
of substance and works that are of benefit to the
Chapter 1 Page 3
for the harmfulness of reprinting 407
community. Habit and necessity also lend weight
to the mediocre scholar; the opportunity for
healthy competition and comparison between
writers disappears, and the mediocre author
takes the place of the outstanding one. The
flourishing of the sciences is replaced by
study of what is merely fashionable; brochures
push out larger works; libraries fall out
of fashion; the writer is reduced to the level
of a common mercenary: all these are direct
consequences of tolerating reprinting.
§. 3
Given these so self-evident reasons for
the harmfulness of reprinting, it is incredible
that princes who are noted for their insights
and love of justice nevertheless grant a
sanctuary to reprinters in their territories.
However, it is clear that their good Christian
faith has been taken in by false pretences of
a legitimate self-defence against the rising
price of books, and of the need to recourse to
just measures of repression. However, it is only
because of the danger of reprinting that the
prices of books have risen and continue to do
so daily. If the evil can be uprooted, though,
then its fatal consequences will also disappear.
The cries of some who look with envious eyes at
the prosperity of their more diligent colleagues
have no relevance whatsoever here. The wholesale
book trader, or he who trades solely with his own
in-house publications, selling them for cash, is
equivalent to the first-hand manufacturer in other
branches of commerce. The less he is restricted,
the less encroachments he has to suffer, the
cheaper can he sell his products, as a result of
which both retail booksellers and the public
will benefit. No monopoly is conceivable here,
since, in view of the fact that there is great
competition amongst publishers and retail book-
[Col. 2]
sellers, that trader will be the most sought after
who has acquired the reputation of offering a wide
selection and who has been able to defend this
reputation. In an unrestricted state, where there
is protection against acts of piracy, several
traders can attain this goal at the same time.
The encouragement of a large number of factories,
whose products are also of good quality, acts as
a stimulus for improvements and attracts buyers,
as well as leading to cheaper articles. It is
therefore simply a false pretence to claim
that reprinting prevents books from becoming more
expensive, not to speak of the incomparably
poorer print and paper quality used by reprinters.
In southern Germany booksellers are generally
wholesalers and retail booksellers at the same
time. They suffer doubly from the acts of piracy
committed by reprinters. Therefore, if a prince
privileges or protects a reprinter in his realm,
the result of this is that the other booksellers
in his lands who are honest people will little
by little be forced into ruin. If one were to
accept the principle that the end justifies the
means, then all security of ownership would cease;
then crimes of all kinds, which are condemned by
morality and punished by positive law, could be
used as self-defence. The benefits which a reprinter
or a gang of such robbers bring to a state are
transient. The source from which they draw their
water must eventually dry up, and then they will
have no option but to wear each other out amongst
themselves. There is no state in all of Germany
in which all the books are reprinted that the
subjects and servants of the prince need for their
official duties and their leisure. The prince
himself - and all of our princes protect and
respect scholarship - does not buy any reprints, but
Chapter 1 Page 4
408 XIV. A brief outline of the reasons
original, albeit more expensive editions. So the
cash that is brought into circulation by the
reprinter into the country in which he resides
flows out of it again to an incomparably greater
extent. And even if we assumed that the balance
worked out in favour of the reprinter, would
this make his actions any less criminal? An unjust,
immoral action cannot be justified by anything, no
matter whether it is undertaken for the benefit
of the church, the state, or the coffers of the
treasury. By forbidding reprinting, every sovereign
prince would make it easier for the honest book-
sellers in his realm to expand their legitimate
business, and the reprinter would be forced to
take up honest publishing and ensure that he has
a good assortment of books to offer. This would
encourage able minds in every province of Germany
to devote themselves more assiduously to the
sciences and to make much more of their talent
than has been the case so far. Every German province
would, alongside its own constitution, alongside
its own dialect, also have its own favourite
branch of literature. The whole would gain immeasurably
from such an improvement of the individual constituent
parts.
To what extent princes are entitled to take
repressive measures against genuine, or even just
seeming, encroachments, is not for private persons
who are seeking assistance to decide, even though
the right to make one's own judgements may well be
one that is by nature intrinsic to man. Given that
reprinting is so widespread, just princes can easily
be seduced into the delusion that they would be
depriving their realms of a branch of industry if
they did not reward reprinting like their neighbours.
Thus, the upshot is that the northern princes also
allow their booksellers to reprint the good-quality
intellectual products from southern Germany.
[Col. 2]
A similar fate befell German trade in general during
those woeful times in which it was on the verge of
being ruined by custom-duties and taxes from all
corners and directions. Let us assume for one moment
that the universality of reprinting entitled every
prince of the Empire to adopt the same recourse, and
to tolerate, and perhaps even encourage, this literary
piracy in his own lands as a form of protection tariff:
the result will be that booksellers from northern and
southern Germany will rush in upon a good publication
at the same time. He who is able to reprint the quickest,
that is, with the most miserable quality, will certainly
thereby gain a small head start, but the competition
from the reprinter following in his tracks will deprive
him of a good part of his spoils. So the reprinters
would not only ruin the legitimate booksellers - they
would also ruin each other mutually, and literature
and the book trade would reach such a state of decay
that the robbers would soon lose all opportunities of
finding any booty to steal in the first place, so that
only a general prohibition of reprinting would bring
the book trade back to life, which therefore means
that any grounds for taking repressive measures
cannot be valid at all.
§. 4
Moreover, this branch of German commerce, which
is in danger of suffering general ruin, is not
actually that insignificant. One may take it as a
given fact - which can also be demonstrated by a
very straightforward calculation - that every year
the book trade causes 2 million gulden to circulate
across all of the German provinces which form part
of the union of Imperial estates. And in this
capital sum the booksellers of southern Germany,
partly as wholesalers, partly as retail booksellers,
and partly as both of these,
Chapter 1 Page 5
for the harmfulness of reprinting 409
have their due share, and possibly the largest one,
too, if the booksellers of independent Switzerland
are not counted together with the booksellers from
the Imperial territories. Of this capital sum, which
is brought into circulation by honest industry, the
reprinters of books steal at least half a million
every year. The fact that their actions are not
punished, the ease with which they can thereby earn
a livelihood, encourage others to also seek to reap
where they have not themselves sown. Exorbitant book
prices, light-weight and frivolous literary phenomena,
are all consequences of this. But soon there will not
even be anything left to rob: and after that, all that
we will have is barbarism!!!
§. 5
In northern Germany, where one can find
several larger homogenous states, where the sovereign
princes can give protection through privileges and as
a result on being on good terms with their equally
powerful neighbours, where the greatest possible
security of ownership is interweaved into the
administration of these states' finances, honest
publishing will be able to maintain itself upright
for longer than in southern Germany, but it will
inevitably suffer losses - and significant ones at
that. The book trade in the smaller and more
fragmented states of southern Germany cannot exist
except in conjunction with northern Germany.
Germany's ablest minds do not go after the
mildest climes - rather, they take up residence
where the security of property is guaranteed the
most, where there is the greatest freedom of
thought, and where they can expect the best sales
for, and the greatest profit from, the products
of their intellect. Few are the booksellers in
southern Germany who are still in a position to
reward according to merit an author who has
already won the esteem of the public, or even
[Col. 2]
just according to the esteem that the author can
reasonably be expected to acquire thanks to his
work, and there will be ever less of such book-
sellers as long as the evil principle prevails
that what has been lawfully published and printed
in Frankfurt-on-the-Main, can be reprinted in
Reutlingen without fear of punishment and then
distributed for public sale across the whole of
the German Empire. When a bookseller in the Empire
does occasionally succeed in encouraging an emerging
genius to take up writing, in supporting his talent
and presenting him to the public, the union
between the two is nevertheless very short-lived. The
obligations of the writer towards his godfather, as
it were, are as fleeting as those of the educated
person towards his former teachers. Strictly speaking,
no real obligation - that is, one on which a legal
claim could be based - can be said to be present
in the given case. As a result of the decline of the
German book trade caused by reprinting, therefore,
all the able minds of the southern half of the
Empire will be forced to migrate to the northern half.
There, however, excessive competition amongst writers
will ensue, intellectual works will become no more
than articles for speculation at the fairs, the level
of scholarship will fall, and with it also the demand
for literary works. Author's fees will also fall
automatically. Whereas if, on the contrary, a reason-
able balance were to be preserved both in northern
and southern Germany, the scholar would then be able
to request an appropriate price for his work from
the bookseller.
§. 6
Hitherto the supreme head of the Empire has not
been able to protect the Empire's booksellers from
the piracy committed by reprinters, although both
early and recent Imperial charters, of which we shall
only mention the most recent one of 10 February
Chapter 1 Page 6
410 XIV. A brief outline of the reasons
1746, strictly forbid the reprinting of books -
albeit only where an Imperial printing privilege
is concerned. To what extent Imperial printing
privileges can restrict the sovereignty of the
princes in their own territories, is a matter
which only the princes can decide. Moreover, even
applying to the Imperial Exchequer, in cases where
Imperial printing privileges have been violated,
is an expensive and protracted process, which does
not lead to any substantial success, since long
before the assistance of the Imperial Court can
become effective, the reprinter's edition will
already have been sold, whereas that of the legi-
timate publisher will have remained unsold. Not to
mention the wounds inflicted by the debate on
the question as to whether the supreme superintend-
ence of the book trade in the German Empire is an
Imperial prerogative? The protection which the
larger, homogenous states of northern Germany can
afford to their booksellers through particular
sovereign printing privileges cannot cover all
book traders operating in the Empire.
§. 7
However, assistance against reprinting can
certainly become universally beneficial if the
following propositions, which are based on right
and justice, and which are in complete harmony
with the German Imperial Constitution, are used
as a starting-point:
I. The manufacture of books, printing, and
the sale of printed paper is a genuine sphere of
commerce, to which police regulations apply, and
which is the responsibility of the sovereign
superintendence in each territory.
II. The sovereign ruler is obliged to protect
every citizen of his lands in the unmolested owner-
ship of his property, and to grant him the best
possible benefit which he can make out of the latter,
[Col. 2]
which means, therefore, that he must also protect
the writer and his inseparable assistant, the
bookseller.
III. This protection can only be effective if
the prince is also just towards the citizen of a
neighbouring state, and does not allow the latter's
property to be violated in his lands.
From these three propositions, if they are
put into practice, it is possible to derive every-
thing that can restore the health of literature and
the book trade. In order to ensure cheap book prices,
it will not then prove necessary to introduce any
coercive laws. The competition of publishers and
clients [amongst themselves] would soon cause the
book prices to drop. Commerce derives its laws from
itself: as long as the state protects property,
facilitates the means of earning a livelihood, and
comes to the aid of honest manufacturers against
deceit and robbery, the public can count on the
wares being of the highest quality and on the prices
being as low as possible.
§. 8
The means by which these propositions can be
made self-evident to all and universally applicable,
are very straightforward.
So far the whole Empire, and all of its high
estates, have pursued the praiseworthy task of
creating a complete freedom of commerce, and to
remove all obstacles that might stand in the way
of this freedom, amongst which the most prominent
were arbitrary and excessive custom-duties, the
abuse of the [Golden] Bull of Brabant etc. (Gerstlacher's
"Handbook of the German Imperial Laws", Pt. 10). The
patriotic solicitude of our high legislators even
occupied itself with the most detailed specificities
of trade: wines, cloths, their colour and treatment,
length of cut, size, and
Chapter 1 Page 7
for the harmfulness of reprinting 411
weight, spices, medical substances, rates of freight,
daily wages and servants' wages, gold- and silver-work,
money trading, were all subject to general Imperial
police regulations - not because the Imperial estates
were in any way inclined to favour commercial fraud
and deceit, but because the pure principles of commerce
were not universally known and its administration
was in the hands of a small number of people who
could thereby easily prescribe any laws they wished
to their clients. The joint power of the head of the
Empire in conjunction with all of the estates, there-
fore had to provide swift assistance in this case:
nevertheless, in all Imperial police statutes concerning
German trade the individual competence of each sovereign
territory is by no means restricted; rather, the
sovereign authority is urged to keep an eye on the
elimination of any obstacles to commerce. Now that the
principles on which trade rests are no longer a secret,
since it is an acknowledged fact that only that state
may enjoy thriving prosperity which promotes inland
trade, and that this prosperity cannot be produced and
maintained other than through security of property and
protection against deceit, it is no longer necessary
for general Imperial police statutes to be issued
with regard to this sphere. The noble estates of the
Empire individually carry out a priori - if we may
use such learned terms - what the whole Empire had
given occasion to a posteriori several centuries ago.
Thus, customs abuses - once the ruin of German trade -
have ceased automatically, since the prince who were to feel
himself inclined to impede trade in his realm by means of
custom-duties, thinking that this financial
[Col. 2]
machination will bring him instantaneous profit, would
be in danger of seeing all transit trade diverted from
his lands and attracted to his neighbour's realm, where
the custom-duties are not as high. A merchant will not be
afraid of any danger or inconvenience, as long as he can
thereby save something on the cost of transporting his
wares. This is a proven and acknowledged fact: one need
only look at the kings of the German rivers, and make the
comparison between water and overland transport - but
this is not pertinent to the subject we are dealing with
here. The following conclusion may, however, be drawn
from this: that, since the principles on which the book
trade, in particular, rests are still not as generally
known as the principles of the other branches of German
commerce, the legislative power in the Empire must
intervene here.
§. 9
This matter ought certainly to be raised at the
next Imperial Diet, and assistance will surely be
forthcoming from this lofty authority. But alas, good
Lord! the complications that always pile up whenever
a matter of this kind is to be implemented there! If
even princes of the Empire are not able to have their
most important concerns presented and discussed there;
if the cathedral chapters who arrive there seeking
assistance are first posed the question as to whether
a private person, or a body of private persons, has
the right to appeal to the Imperial Diet, what fate
can one await for a matter which is of concern to
a corporation of plebeians, especially in view of the
fact that quite a few princes and other estates,
especially many of the praiseworthy Fee Cities, would
act as spokesmen for the reprinters?! The Appeals
Council has gone out of fashion, and as a result
no assistance can be expected from the Imperial Diet
Chapter 1 Page 8
412 A brief outline of the reasons
for anyone who is a mediate subject of the Empire.*
§. 10
Given such a bleak outlook, German literature
and the German book trade, which has also been
suffering heavily, can find no other refuge than
in the bosom of the most noble College of Electors.
Ever since the Electoral Capitulation of Charles V,
whom we hold in such glorious remembrance, the most
noble Electors of the Holy Roman Empire have been
entitled to demand of the head of the Empire who is to
be elected that he should commit himself to take
German trade under his wing. In the most recent
Electoral Capitulation, namely in Art. VII, §. 1, this
is stated explicitly: "Moreover, it is our obligation
and wish to promote maritime and overland trade in the
Empire to the best of Our ability" Wholly in accord
with this is the draft for the permanent Electoral
Capitulation of 1711 that was worked out by the two
supreme Colleges of the Empire, for Art. VII of this
states: "Furthermore, the ruling Roman Emperor must
and will promote trade within the Empire". This passage
encapsulates everything that can be found in all
preceding Imperial laws for the promotion of German
trade, and what the Peace of Westphalia (Art. IX, §. 1,
nr. 2) enjoins on all Imperial estates as a holy
obligation. Promotion of commerce is inconceivable
without elimination of the obstacles that stand in its
way: thus,
[Col. 2]
the providence which this entails cannot just limit
itself to general aspects - rather, if it is to be
genuinely effective, it must deal with all the roots of
the problem. After all, the most noble Prince-Electors
of the German Empire deigned, at the preceding
Electoral Capitulations, after unanimous consideration
of what was required at that specific moment, to
preclude the decline of trade by eradicating all customs
abuses, by vigilance and by establishing the cases in
which new custom-duties could be levied and/or raised,
rather than just contenting themselves with a general
declaration of good intentions for the promotion of
commerce. Is it possible that these lofty guardians of
German welfare and of the German constitution should in
this case, when the danger of a decline of literature
and the book trade is so evident, prove to be less
patriotic than their most illustrious predecessors?
§.11
The effect which customs abuses have on trade
in general can rightly be likened to what reprinting
is doing to literature and the book trade. The principle
that such customs abuses and other ways of oppressing
trade can be prevented in an Electoral Capitulation,
has never been disputed by the princes or estates, since for
a while now it has been the law throughout the German
Empire that nothing may be tolerated therein which
_____________________
*) Even so, such a proposition cannot be realised
without an assembly of the Imperial Diet. The Prince-
Electors are, it is true, entitled to exclusively
draw up the points of the Capitulation, but, on the
other hand, it is widely known how jealous the princes
are of this right, and how during every interregnum
there are vigorous calls for a permanent Electoral
Capitulation. The matter would therefore have to be
decided beforehand at Regensburg - something that will
awaken significant protest only amongst those estates
who protect reprinters. But even assuming that the
motion passed all three Colleges of the Empire with a
majority, there will always be various estates
who will, "si diis placet!" [if it
pleases the gods], invoke the priceless jewel of German
freedom, namely, the jus singulorum [right of
the individual], protest against the motion, and, like
the late Emperor Joseph II, encourage reprinting in their
lands clam vel vi [by stealth or strength].
Chapter 1 Page 9
for the harmfulness of reprinting 413
causes ruin to trade. Even though a few centuries
back the reprinting of books was not taken into
account, it is nevertheless the case that attention
was paid to the obstacles which impeded trade, and
the removal of these was entrusted to the care of
the most noble Prince-Electors, and the Imperial
laws enacted later were merely a re-iteration of
what had already been established in the most
binding terms at the Electoral Capitulation. If,
therefore, the noble College of Electors should,
at the next Electoral Capitulation, deign to
devote special attention to that particular branch of
German industry which is made up by the book trade,
and to eliminate everything that threatens to
undermine literature and the book trade, then,
strictly speaking, it is not a new law which is
hereby being drafted, but, rather, the provision
thus made is as appropriate to the extreme
necessity which calls it forth and to the ease
with which a remedy can be applied, as the
restrictions and prohibitions of customs abuses
which from time to time were set forth in Electoral
Capitulations. In particular, though, the princes
and other Imperial estates will be grateful to the
noble College of Electors if the principle of
sovereign superintendence of active and passive
book trade, and of the branches of industry
associated with these, is laid down without any
restrictions whatsoever.
§. 12
To what extent, and with which modifications
this might be achieved, is a matter best left to
those great and accomplished statesmen whom
Providence has appointed to weigh at the present
moment the welfare of the Empire and the preserva-
tion of its Constitution against the obstacles
which stand in the way of the former, and to
facilitate the means by which the head of the
Empire who is to be elected can bestow upon all
members of the Empire the protection of the laws.
Perhaps it is not hazarding too much to attach to
this most humble
[Col. 2]
request that curbing the reprinting of books should
be made into a general obligation, suggestions in
the form of brief sentences, together with analogous
quotations, as to how this can be achieved in a way
which is in accordance with the German Constitution.
I. No book, in which the names of the publisher
and printer are stated, and which has been printed
under the supervision and censorship of a German
Imperial estate, may be reprinted in any German
province *)
*) Imperial edict of 1529, §.9 - of 1530, §.58,
the "improvement of the policing regulations" of 1548,
Art. XXXIV, §.1; Imperial edict of 1570, §.156 and 159,
Imperial police regulation of 1577, Art. XXXV, §.2
Imperial edict for the whole Empire of 18 July
1715, and for the same purpose the Imperial charter of
10 February 1746, §.3.
II. The sale of such a reprint is nowhere to be
permitted *)
*) Imperial police regulation of 1577, §.2.
III. It is the duty of the Imperial Circles and
their directors to ensure that no reprinted publications
are imported into any Circles or printed in these. Every
member of an Imperial Circle, as soon as he finds out
about a violation of this ban, is authorised and obliged
to submit a certified notification of this to the
convoking lords and princes of that Circle *)
*) Imperial report of 24 July 1668, §.6 - Imperial
Commission decree of 10 October/30 September 1668.
IV. If the deceit of reprinting or its concealment
is discovered, or
Chapter 1 Page 10
414 XIV. A brief outline of the reasons
or the legitimate publisher brings an action to
this effect at the local authority in whose
territory of jurisdiction the reprinter had his
place of residence, then, in the first case, all
the reprint copies are to be confiscated and
destroyed; the reprinter is to be subjected to
a monetary or corporal punishment which is appro-
priate to the scale of the piracy committed by
him, and consequently all his belongings are to
be taken into the court's custody; and the
legitimate publisher who has been injured in his
property right is to be informed of this, so that
he may decide what further steps he wishes to
take in order to be indemnified; in the second
instance, on the other hand, as is the legal norm for
banking, industrial, and mercantile cases, summary
proceedings are used and, as soon as the corpus
delicti, i.e. the reprint copy or copies,
has been ascertained and the damages adjudicated,
parata execution [prompt execution] is to
come into immediate effect, after all of the
reprinter's personal assets have been impounded *)
*) Imperial edict of 1654, §.107.
V. However, the Prince-Electors, princes, and
estates are hereby at liberty to take all measures
which they consider to be necessary for the
elimination of reprinting and for its stricter
penalisation *)
*) Imperial police regulation of 1577, Tit.XX,
§.7.
[Col. 2]
VI. In the unlikely case of denial of justice
by the courts of Imperial estates, the two supreme
Imperial courts are to immediately come to the aid
of the plaintiff either with mandates S. C. [?], or,
depending on the circumstances of the case, with
express [instructions ?] for the administration of
justice *)
*) Electoral Capitulations of Maximilian II, Art.
XX, and of Rudolph II, Art. XVIIf.
VII. The Imperial Exchequer is also instructed to
proceed against the Imperial estates and circles who
fail to comply with these regulations, and, what is
more, regardless of whether the plaintiff requests
this or not *)
*) Electoral Capitulation, Art. VIII, §.12,
Imperial edict of 1530, §.137. Imperial police
regulation of 1577, Tit. XVIII, §§.6-12.
VIII. Every Imperial estate is at liberty to
take any measures that it considers appropriate for
raising the level of literature and the book trade
within its territory *)
*) Imperial report of 22 July/ 1 August 1668.
IX. The Imperial Circles, in particular, are
requested, apart from putting an end to reprinting,
to make the question as to how the book industry
might be re-vivified and increases in book prices
precluded,^ into the foremost object of their
__________________________
^ This is the 'knot' which I would wish to see
unravelled before setting forth the next point of
the Capitulation. For just as much as I desire that
legitimate publishers might be protected against
reprinters, I also wish that the reading public, too,
might be protected from the greed for profit of some
booksellers. Books are for the mind as indispensable
a necessity as bread is for the body. A good police
order must be able to take vigorous measures in order
to prevent the prices of either of these two commodities
from becoming too high. In fact, this increase in
book prices has a further reason which has nothing to do
with the price of a book as such, but with the excessive
postage costs charged for its delivery to the customer.
Thus, a few days ago, I found out that a subscriber to
my journal had to pay a postage charge of 1 florin for the
[January ?] issue, calculated for a distance of some 20
miles at the rate of the local post-coach. Thus, the
postage for 12 issues of the journal effectively turns out
to be 1 florin and 12 kreuzer more than the cover price
for a full year's set, which can be bought at all bookshops
for 10 florins and 48 kreuzer! I could cite thousands of
similar complaints. Surely literature, for all kinds of
reasons, deserves preferential treatment on the part of the
Imperial and municipal post-offices?
Chapter 1 Page 11
for the harmfulness of reprinting 415
deliberations, and to submit a formal report on this to
the Emperor and the Empire *)
*) Electoral Capitulation, Art.VIII, §.3.
§.13
The author of this essay is pursuing no other
intention than that of promoting what is best for
literature, the book trade, and the reading public.
Neither northern nor southern Germany, neither
wholesale book traders, nor retail booksellers,
neither the wealthier book-lover, who is able to
spend considerable sums on expensive editions
and on freshly published books, nor the poorer
friend of books, who has to take care that his
purse will last him for the whole year, neither
the writer who is fortunate to be in a well-off
position, nor the humble inhabitant of a garret,
receive any special or preferential treatment on
the author's part. He is and remains firmly
[Col. 2]
convinced that the decline of literature, of the
book trade, of good taste, the increase in book
prices, the excessive fees commanded by authors in
some cases, are all consequences of reprinting; and
that once reprinting has been extirpated, and the
book industry, by virtue of its commercial nature,
taken under the supervision of the sovereign authori-
ties, all these deleterious consequences will
automatically disappear. He confidently invokes the
testimony of all statesmen who are in charge of
commercial matters, and who will vouchsafe that it
is not necessary - nay, that it is most harmful - to
publicly fix the price of a specific commodity,
since complete security of property, protection
against deceit, facilitation of the means of redress,
etc. will stimulate competition amongst the
sellers, the result of which is to bring about
the cheapest possible price for the commodity
being sold.
Regensburg, printed with a [Lang ?] typeface,
1790.
Translation by: Luis A. Sundkvist