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Expert Opinion on Schelling v. Paulus (1846)
Source: N/A
Citation:
Expert Opinion on Schelling v. Paulus (1846), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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10 translated pages
Chapter 1 Page 1
205
Nr. 32
In 1843 the publishing-firm of the bookseller L. brought out
a book of LXVI and 736 pages in large octavo format with the following
title: “The finally revealed Positive Philosophy of
Revelation: History of origins, verbatim text, evaluation
and rectification of A.’s Discoveries on the Philosophy
as such, Mythology and Revelation, of dogmatic
Christianity, given in the 1841-1842 winter semester at *** university.
Submitted for general scrutiny by P.”
The bookseller N. put an advertisement into
the supplement of the 1 July 1843 issue of the *** newspaper, announcing
that this book could be bought at his shop, and, indeed, sold two copies of it.
A., on the basis of his assertion that this book contained a complete
and exact transcript- made without his permission and equivalent, according to §.3
of the law of 11 June 1837, to a reprint- of the lecture series he gave on the
Philosophy of Revelation at *** university in the winter semester of 1841/42,
Chapter 1 Page 2
206
has solicited, in accordance with §.13 of the said law, the book’s confiscation
by the police authorities and the institution of a fiscal inquiry against N. for
knowingly offering for sale an illegally reproduced work.
In order to prove that the book contained a printed copy of the lecture
series in question, the denunciator, amongst other things, asked for it to be compared
with an exercise-book, submitted by him in three fascicules, in which
the student H. had taken down those lectures. The student H. has attested on oath
that those three fascicules contain notes of the lectures which,
to the best of his ability, he had tried to take down word for word.
The denunciator has also attested on oath that essentially,
both in content and in form, this exercise-book coincides fully
with what he actually spoke at the lectures.
In his support the denouncee invokes, in particular, the objection
that even if the lectures were to have been printed as such
in the book, this could not be regarded as equivalent to reprint and
liable to punishment, since, according to the existing laws, only
reprints carried out with financial gain in mind are prohibited,
but not those in which purely literary aims are being pursued, as is
the case with P.’s reprint, according to the defendant.
The undersigned committee has been asked to give an expert opinion
on this question: Does the aforementioned book contain an illegal reprint
of the lectures on the Philosophy of Revelation which A.
gave at *** university in the winter semester of 1841/42?
The formalities are in order. The court dealing with the inquiry
has, in accordance with the regulations, established a status causae
et controversiae* and sent us a copy of the incriminated book and
the three fascicules of the exercise-book with which it is to be compared.
The identity [of each piece of evidence] is attested by the court’s seal.
As far as the facts of the case are concerned, the question posed must
be answered in the affirmative.
This much can definitely be taken as settled, namely, that in the
_______________________
* Statement of the cause and controversy.
Chapter 1 Page 3
207
incriminated book there is indeed a printed copy of the
lectures on the Philosophy of Revelation given by A.
at *** university in the winter semester of 1841/42. H’s exercise-
book, it is true, does not coincide word for word with the text published
by P. and is considerably more detailed throughout, but
a mere comparison of a number of individual passages is sufficient
to demonstrate their intrinsic equivalence. This
intrinsic equivalence is, moreover, not lessened by the difference
in style and conception which can be discerned in the
two texts. H.’s exercise-book, namely, seems to follow
the professor’s lectures with an almost anxious fidelity and
accuracy, so as to reproduce it word for word.
The text published by P., on the other hand, shows clear signs of a
more focused summing up and condensation of the lectures,
with a certain almost critical sifting, which involved, namely,
the omission of those explanatory digressions that were probably
intended more for the instruction of the audience than for anything else. However,
referring to the cases considered in §.3, b of the law of 11 June 1837, it is
unconceivable that the transcript of a sermon or lecture could ever
coincide word for word with the actual sermon or lecture, unless
some kind of stenographic method happened to have been used.
For it is quite natural that when an orally delivered
lecture is being taken down by various persons,
they will never end up with exactly identical lecture notes.
The protection which §.3 of the law envisages for oral lectures
would, moreover, be quite illusory if it were only to apply
against the printing of literal transcripts. Furthermore,
in the present case we have precisely the contrary of what
usually tends to happen. Usually, the identity of the
suspected reprint with the original tends to be denied, or
the suspected work tends to be presented as a mere extract
from the original. P.’s book, however, would be thrown into an
irresolvable contradiction with itself if one were to say of it
Chapter 1 Page 4
208
that it did not contain A.’s lectures.
For its very title announces the “verbatim text”
of these lectures, and on p.XV of the foreword P. says
explicitly that he is “not giving mere extracts”, and, on p.50, that he is
“rendering the text of A.’s lectures as accurately as he was
able to obtain it.”
Therefore, if there is no room for doubt that
the incriminated book by P. does indeed contain a printed copy of
A.’s lectures, all that remains to consider is whether this
impression is illegal, that is, one which in the sense of the law
would be regarded as equivalent to an illegal reprint?
None of the parties concerned asserts that A. gave
his consent for this impression. Thus, all the circumstances which
point to an illegal reprint are present, as determined by the tenor
of §.3 of the law of 11 June 1837: “[The following is] regarded as
equivalent to reprinting and is, therefore, also forbidden:
the impression, carried out without the author’s consent... of
transcripts of... academic lectures delivered orally, irrespective of
whether these are published under the author’s true name or not.”
However, in defence of P.’s book it is claimed that
the notion of illegal reprinting does not apply in this case,
since the printing of A.’s lectures was supposedly undertaken
for purely literary purposes, rather than with financial
gain in mind. This objection, though, imputes to the law a
motivation which, if not quite extraneous by all means, is
nevertheless much too limited. In order to explain this, we have to
look more closely at the nature of the legal situation pertaining here.
The Prussian law of 11 June 1837 protects against reprinting
not just works which have already been published, i.e. printed
(§.1, 2), but also manuscripts of all kinds and transcriptions of
sermons and academic lectures delivered orally (§.3). The protection of
manuscripts and lecture notes rests evidently
on a wider principle than the protection of
Chapter 1 Page 5
209
already published works. Certainly, both have in common,
first of all, the protection of the author’s economic interests, and,
secondly, the protection of the author from any illegal publication
and distribution of his work that is not to his approval. However,
an already published work is, as far as its content is concerned,
already public property of all those who want to and are able to read it
and assimilate it intellectually. The illegal reprinting of such a work,
therefore, merely puts more copies into circulation than the author
or his legal successor had had occasion to allow. A
manuscript, on the other hand, or the transcript of a lecture, does not
belong as such to the public, or does so not in an unconditional sense
where the diffusion of a publicly held lecture by means
of printing is concerned. The author or speaker
is, thus, protected by the Law on Reprinting not just from an
increase in the number of copies of the manuscript he may have had copied or of
the lecture he may have had taken down, but, rather, from the very
introduction of his manuscript or lecture into
public circulation (or, at least, into a wider publicity than that
inherent to the lecture he has given in public). He can demand
that his manuscript not be published, that his lecture remain
no more than a spoken address, namely, an address spoken to
those who were entitled to hear it. This
legally justified demand of the speaker does not
suffer any detriment even from the fact that those entitled to
hear and take down the lecture are indeed allowed to show
others what they have written down so that these can also
inform themselves of the lecture and possibly even take a copy of it.
For, legally, we are still dealing here with the address spoken to
those originally entitled to hear it and take it down, and with how
these have assimilated it. That the Prussian Law correctly
understands this difference and the peculiarity of manuscripts and
lecture notes, is evident already from the
concluding sentence of §.3, whereby even the rightful owner
of a manuscript or lecture transcript is not authorised to
arrange for its impression without the consent of the author or
Chapter 1 Page 6
210
the latter’s legal successors. In contrast to the
reprinting of already printed works, which just increases
the total number of copies in circulation of an already published work,
what is being forbidden here is an encroachment on the author’s personal liberty.
It means forbidding the merely written or spoken word
of the author from being brought by means of printing, against his free accord,
into the public realm, for which he had not
intended it. Against this prohibition, therefore, even the objection
which tends to be raised most often in the present case,
namely, that A. had spoken for the public, cannot have any
legal effect, although, from a literary point of view,
one might be inclined to give it some weight. Consequently, it is
also of no legal significance whether P. drew the text from a direct source or
from intermediary ones. All that matters is that by means of printing he
has brought into the public realm a manuscript, of which he was himself
convinced that it contained a transcript of A.’s lectures in a more or
less authentic form, without the consent of the professor who is the
only person entitled to have these lectures printed.
Now, it is true that P.’s book contains, apart from A.’s lectures,
a large number of essays and notes by P. himself:
namely, the triple foreword (pp.III-LXVI), his essays
(pp.1-212) taken together as a whole, and, apart from
his running commentary in footnotes to the text of A.’s lectures, his discussion
of the latter (pp.232-253, 259-312, 441-447, 496-515,
629-639, 730-736 [the conclusion]). In between these the core of
A.’s lectures is given fully, broken up by P. himself into
34 sections provided with headings. The proportion
of the work occupied by P.’s own writing is, therefore, greater,
by a ratio of about 3:2, than that occupied by A.’s lectures. However, if because
of this proportion one were to assume that P.’s own writing
predominated overall and that one could therefore not speak of reprinting, one
would be quite wrong and all the more so given that P.’s own writing
here is mainly of a polemical and critical nature. This observation
Chapter 1 Page 7
211
however, is only meant to indicate that the question would
have been more complex if, say, the ideas formulated orally by
a teacher had been used as building-blocks by a third person
to construct an independent philosophical system,
although even in such a case the literal impression of a whole
exercise-book of lecture notes would not have been legally justifiable. Similarly,
we may indicate in passing that disputing in one’s own lectures with
the content of an exercise-book of notes taken at another professor’s
lecture is something quite different to printing and
publishing this exercise-book of lecture notes for polemical purposes. There
is no need, however, to go into such subtleties to resolve the
present case. For what we are asked to provide is not a judgement on
P.’s book as a whole, although the latter too would always be
found to be a partial reprint in the sense of the law,
since it is made up in part of A.’s lectures printed without his
consent. Rather, the question on whose resolution everything
depends in the present case, with good reason asks merely the
following: does P.’s book contain an illegal reprint of A.’s lectures?
After all that we have set forth here, there is no other way of
answering this question than in the affirmative. In this sense it is irrelevant
for what purpose the infringement on A.’s rights constituted by
this illegal impression was undertaken, even if the intention was
subjectively felt to be a legitimate one. It is true that
experience so far indicates that the overwhelming majority of reprints
are carried out with financial gain in mind. But this does not mean that
one can assume that it would be lawful to carry out a reprint for fun or
to indulge in mischief, nor, on the other hand, if it were undertaken with
a good purpose, that is, a scholarly one, in mind. Even a good
purpose is unable to turn an illegal action into a legal one.
Furthermore, the law does not just aim at preventing the
illegal profits made from reprinting: on a
higher level it secures the “right of ownership to
Chapter 1 Page 8
212
works of scholarship and art” in the fullest sense of
the word. Being rightly aware of the capricious and ever
growing might of the press, the legislator has tried to
curb its abuse at least to the extent of protecting orally
delivered lectures, which are in effect the most direct manifestations of
the free scientific spirit, from unauthorised reprinting and reproduction.
Now, those called upon to interpret the law do certainly make a distinction
between literary and intellectual property. An orally
delivered lecture cannot be strictly regarded as the literary
property of the lecturer until he has had it printed.
Indeed, such a lecture can no more be considered
the lecturer’s exclusive intellectual property, since its
content has just been poured out into the minds of his audience.
It does, however, if this distinction is permitted, intellectually
remain the property of the lecturer insofar that he is fully entitled
to develop the thoughts it contains in ever new forms. From the literary
point of view it is he who has the indisputable right to hand over,
in the most adequate form, his thoughts for publication, whenever
and however it may please him to do so. Therefore, the
violator of this right is guilty of an offence which
must be treated as equivalent to reprinting, and the nature of
his intentions is quite irrelevant.
On the other hand, one should by no means ever forget about
the commercial aspect of reprinting. Rather, one must
definitely also take into account the financial gain
which a lecturer is deprived of by the unauthorised impression of his
lectures, even if the person responsible for the unauthorised
impression does not make any profit out of it. That is why
the law stipulates in general that the party injured by
the reprint must be fully indemnified. The
correct consequence of this interpretation of the law would be
confirmed in every individual case one might care to look at. Suffice it to
recall how Thibaut’s oral lectures on his Pandect-
Compendium were in their time printed off by an unauthorised
third party, to the sizeable and irretrievable financial
Chapter 1 Page 9
213
detriment of this scholar and teacher!
If in order to establish a case of illegal reprinting
one were always to insist on proof of a profit-seeking
intention, the protection given by the law would often turn
out to be quite illusory, especially in those cases where an
oral lecture is printed and published. Moreover,
one should also distinguish between a profit-seeking and a self-
interested intention in a wider sense. A literary intention which
doesn’t aim for financial profit can nevertheless also be self-interested.
One would therefore be well advised to take the well-known
expert report of the Superior Court of Appeals of 13 February 1844 (supplement
to the Ministry of Justice’s official gazette of 1844, Nr.16) in quite a wide
sense when it recognises this as the only tenable guiding-rule:
namely, that the Prussian law of 11 June 1837 does not require proof of
a self-interested intention, neither in cases of reprinting as such,
nor in the equivalent ones (§.3) where transcripts of oral academic
lectures are printed without the lecturer’s consent.
This opinion- which in the present case cannot but lead to
recognition of the denunciator’s right to legal protection against the
unauthorised impression of his lectures- is,
moreover, supported substantially by German federal law
and the legislation of Darmstadt, the latter being particularly
relevant here given that P.’s book was published in Darmstadt.
The Federal Directive of 29 November 1837 protects (Art.1)
against reprinting “all kinds of literary works, whether already
published or not”, entitles (Art.4) the injured
party to claim compensation, and prohibits (Art.5)
the sale of the reprint copies in all federal territories. According to
federal law, therefore, the notes taken of A.’s lectures, being a still
unpublished literary work, could not be legally reproduced by printing
without the originator’s consent. That such reproduction is only
then deemed illegal when it is carried out with a profit-seeking
Chapter 1 Page 10
214
intention is not at all what the Federal Directive
says or even so much as implies.
No less is the support which the spirit of the Darmstadt law
of 23 September 1830 - which in this respect, admittedly,
does not seem to be formulated so definitely as the Prussian
law of 11 June 1837 - would lend to the denunciator’s invocation of
legal protection against the impression of his lectures.
For this law too contains no suggestion that a
profit-seeking intention on the part of the reprinter must be proved.
Article 1 of this law puts the printing of a lecture without
the permission of its author into the same category as all other
kinds of illegal reprinting of published printed works. Art. 5 does,
it is true, allow “verbatim extracts from a whole work...in critical
and other periodical works, as well as in larger compilations,
and also as occasional components or supplements to other
works.” Yet, firstly, this Art.5 almost certainly has only already
published and printed works in mind. And, secondly, the divulgation
(even if it is done little by little) of a whole, hitherto unprinted,
series of lectures can in no way be subsumed under the concept of
“verbatim extracts from a whole work.”
For these reasons it is the undersigned committee’s duty to
conclude its report with the only opinion possible:
that the aforementioned book by P. contains an illegal impression
of the lecture series on Philosophy of Revelation given by A.
at *** university during the winter semester of 1841/42.
Thus resolved at the meeting of 28 January 1846
The Society of Literary Experts
Translation by: Luis A. Sundkvist
Source: N/A
Citation:
Expert Opinion on Schelling v. Paulus (1846), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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10 translated pages
Chapter 1 Page 1
Nr. 32
In 1843 the publishing-firm of the bookseller L. brought out
a book of LXVI and 736 pages in large octavo format with the following
title: “The finally revealed Positive Philosophy of
Revelation: History of origins, verbatim text, evaluation
and rectification of A.’s Discoveries on the Philosophy
as such, Mythology and Revelation, of dogmatic
Christianity, given in the 1841-1842 winter semester at *** university.
Submitted for general scrutiny by P.”
The bookseller N. put an advertisement into
the supplement of the 1 July 1843 issue of the *** newspaper, announcing
that this book could be bought at his shop, and, indeed, sold two copies of it.
A., on the basis of his assertion that this book contained a complete
and exact transcript- made without his permission and equivalent, according to §.3
of the law of 11 June 1837, to a reprint- of the lecture series he gave on the
Philosophy of Revelation at *** university in the winter semester of 1841/42,
Chapter 1 Page 2
has solicited, in accordance with §.13 of the said law, the book’s confiscation
by the police authorities and the institution of a fiscal inquiry against N. for
knowingly offering for sale an illegally reproduced work.
In order to prove that the book contained a printed copy of the lecture
series in question, the denunciator, amongst other things, asked for it to be compared
with an exercise-book, submitted by him in three fascicules, in which
the student H. had taken down those lectures. The student H. has attested on oath
that those three fascicules contain notes of the lectures which,
to the best of his ability, he had tried to take down word for word.
The denunciator has also attested on oath that essentially,
both in content and in form, this exercise-book coincides fully
with what he actually spoke at the lectures.
In his support the denouncee invokes, in particular, the objection
that even if the lectures were to have been printed as such
in the book, this could not be regarded as equivalent to reprint and
liable to punishment, since, according to the existing laws, only
reprints carried out with financial gain in mind are prohibited,
but not those in which purely literary aims are being pursued, as is
the case with P.’s reprint, according to the defendant.
The undersigned committee has been asked to give an expert opinion
on this question: Does the aforementioned book contain an illegal reprint
of the lectures on the Philosophy of Revelation which A.
gave at *** university in the winter semester of 1841/42?
The formalities are in order. The court dealing with the inquiry
has, in accordance with the regulations, established a status causae
et controversiae* and sent us a copy of the incriminated book and
the three fascicules of the exercise-book with which it is to be compared.
The identity [of each piece of evidence] is attested by the court’s seal.
As far as the facts of the case are concerned, the question posed must
be answered in the affirmative.
This much can definitely be taken as settled, namely, that in the
_______________________
* Statement of the cause and controversy.
Chapter 1 Page 3
incriminated book there is indeed a printed copy of the
lectures on the Philosophy of Revelation given by A.
at *** university in the winter semester of 1841/42. H’s exercise-
book, it is true, does not coincide word for word with the text published
by P. and is considerably more detailed throughout, but
a mere comparison of a number of individual passages is sufficient
to demonstrate their intrinsic equivalence. This
intrinsic equivalence is, moreover, not lessened by the difference
in style and conception which can be discerned in the
two texts. H.’s exercise-book, namely, seems to follow
the professor’s lectures with an almost anxious fidelity and
accuracy, so as to reproduce it word for word.
The text published by P., on the other hand, shows clear signs of a
more focused summing up and condensation of the lectures,
with a certain almost critical sifting, which involved, namely,
the omission of those explanatory digressions that were probably
intended more for the instruction of the audience than for anything else. However,
referring to the cases considered in §.3, b of the law of 11 June 1837, it is
unconceivable that the transcript of a sermon or lecture could ever
coincide word for word with the actual sermon or lecture, unless
some kind of stenographic method happened to have been used.
For it is quite natural that when an orally delivered
lecture is being taken down by various persons,
they will never end up with exactly identical lecture notes.
The protection which §.3 of the law envisages for oral lectures
would, moreover, be quite illusory if it were only to apply
against the printing of literal transcripts. Furthermore,
in the present case we have precisely the contrary of what
usually tends to happen. Usually, the identity of the
suspected reprint with the original tends to be denied, or
the suspected work tends to be presented as a mere extract
from the original. P.’s book, however, would be thrown into an
irresolvable contradiction with itself if one were to say of it
Chapter 1 Page 4
that it did not contain A.’s lectures.
For its very title announces the “verbatim text”
of these lectures, and on p.XV of the foreword P. says
explicitly that he is “not giving mere extracts”, and, on p.50, that he is
“rendering the text of A.’s lectures as accurately as he was
able to obtain it.”
Therefore, if there is no room for doubt that
the incriminated book by P. does indeed contain a printed copy of
A.’s lectures, all that remains to consider is whether this
impression is illegal, that is, one which in the sense of the law
would be regarded as equivalent to an illegal reprint?
None of the parties concerned asserts that A. gave
his consent for this impression. Thus, all the circumstances which
point to an illegal reprint are present, as determined by the tenor
of §.3 of the law of 11 June 1837: “[The following is] regarded as
equivalent to reprinting and is, therefore, also forbidden:
the impression, carried out without the author’s consent... of
transcripts of... academic lectures delivered orally, irrespective of
whether these are published under the author’s true name or not.”
However, in defence of P.’s book it is claimed that
the notion of illegal reprinting does not apply in this case,
since the printing of A.’s lectures was supposedly undertaken
for purely literary purposes, rather than with financial
gain in mind. This objection, though, imputes to the law a
motivation which, if not quite extraneous by all means, is
nevertheless much too limited. In order to explain this, we have to
look more closely at the nature of the legal situation pertaining here.
The Prussian law of 11 June 1837 protects against reprinting
not just works which have already been published, i.e. printed
(§.1, 2), but also manuscripts of all kinds and transcriptions of
sermons and academic lectures delivered orally (§.3). The protection of
manuscripts and lecture notes rests evidently
on a wider principle than the protection of
Chapter 1 Page 5
already published works. Certainly, both have in common,
first of all, the protection of the author’s economic interests, and,
secondly, the protection of the author from any illegal publication
and distribution of his work that is not to his approval. However,
an already published work is, as far as its content is concerned,
already public property of all those who want to and are able to read it
and assimilate it intellectually. The illegal reprinting of such a work,
therefore, merely puts more copies into circulation than the author
or his legal successor had had occasion to allow. A
manuscript, on the other hand, or the transcript of a lecture, does not
belong as such to the public, or does so not in an unconditional sense
where the diffusion of a publicly held lecture by means
of printing is concerned. The author or speaker
is, thus, protected by the Law on Reprinting not just from an
increase in the number of copies of the manuscript he may have had copied or of
the lecture he may have had taken down, but, rather, from the very
introduction of his manuscript or lecture into
public circulation (or, at least, into a wider publicity than that
inherent to the lecture he has given in public). He can demand
that his manuscript not be published, that his lecture remain
no more than a spoken address, namely, an address spoken to
those who were entitled to hear it. This
legally justified demand of the speaker does not
suffer any detriment even from the fact that those entitled to
hear and take down the lecture are indeed allowed to show
others what they have written down so that these can also
inform themselves of the lecture and possibly even take a copy of it.
For, legally, we are still dealing here with the address spoken to
those originally entitled to hear it and take it down, and with how
these have assimilated it. That the Prussian Law correctly
understands this difference and the peculiarity of manuscripts and
lecture notes, is evident already from the
concluding sentence of §.3, whereby even the rightful owner
of a manuscript or lecture transcript is not authorised to
arrange for its impression without the consent of the author or
Chapter 1 Page 6
the latter’s legal successors. In contrast to the
reprinting of already printed works, which just increases
the total number of copies in circulation of an already published work,
what is being forbidden here is an encroachment on the author’s personal liberty.
It means forbidding the merely written or spoken word
of the author from being brought by means of printing, against his free accord,
into the public realm, for which he had not
intended it. Against this prohibition, therefore, even the objection
which tends to be raised most often in the present case,
namely, that A. had spoken for the public, cannot have any
legal effect, although, from a literary point of view,
one might be inclined to give it some weight. Consequently, it is
also of no legal significance whether P. drew the text from a direct source or
from intermediary ones. All that matters is that by means of printing he
has brought into the public realm a manuscript, of which he was himself
convinced that it contained a transcript of A.’s lectures in a more or
less authentic form, without the consent of the professor who is the
only person entitled to have these lectures printed.
Now, it is true that P.’s book contains, apart from A.’s lectures,
a large number of essays and notes by P. himself:
namely, the triple foreword (pp.III-LXVI), his essays
(pp.1-212) taken together as a whole, and, apart from
his running commentary in footnotes to the text of A.’s lectures, his discussion
of the latter (pp.232-253, 259-312, 441-447, 496-515,
629-639, 730-736 [the conclusion]). In between these the core of
A.’s lectures is given fully, broken up by P. himself into
34 sections provided with headings. The proportion
of the work occupied by P.’s own writing is, therefore, greater,
by a ratio of about 3:2, than that occupied by A.’s lectures. However, if because
of this proportion one were to assume that P.’s own writing
predominated overall and that one could therefore not speak of reprinting, one
would be quite wrong and all the more so given that P.’s own writing
here is mainly of a polemical and critical nature. This observation
Chapter 1 Page 7
however, is only meant to indicate that the question would
have been more complex if, say, the ideas formulated orally by
a teacher had been used as building-blocks by a third person
to construct an independent philosophical system,
although even in such a case the literal impression of a whole
exercise-book of lecture notes would not have been legally justifiable. Similarly,
we may indicate in passing that disputing in one’s own lectures with
the content of an exercise-book of notes taken at another professor’s
lecture is something quite different to printing and
publishing this exercise-book of lecture notes for polemical purposes. There
is no need, however, to go into such subtleties to resolve the
present case. For what we are asked to provide is not a judgement on
P.’s book as a whole, although the latter too would always be
found to be a partial reprint in the sense of the law,
since it is made up in part of A.’s lectures printed without his
consent. Rather, the question on whose resolution everything
depends in the present case, with good reason asks merely the
following: does P.’s book contain an illegal reprint of A.’s lectures?
After all that we have set forth here, there is no other way of
answering this question than in the affirmative. In this sense it is irrelevant
for what purpose the infringement on A.’s rights constituted by
this illegal impression was undertaken, even if the intention was
subjectively felt to be a legitimate one. It is true that
experience so far indicates that the overwhelming majority of reprints
are carried out with financial gain in mind. But this does not mean that
one can assume that it would be lawful to carry out a reprint for fun or
to indulge in mischief, nor, on the other hand, if it were undertaken with
a good purpose, that is, a scholarly one, in mind. Even a good
purpose is unable to turn an illegal action into a legal one.
Furthermore, the law does not just aim at preventing the
illegal profits made from reprinting: on a
higher level it secures the “right of ownership to
Chapter 1 Page 8
works of scholarship and art” in the fullest sense of
the word. Being rightly aware of the capricious and ever
growing might of the press, the legislator has tried to
curb its abuse at least to the extent of protecting orally
delivered lectures, which are in effect the most direct manifestations of
the free scientific spirit, from unauthorised reprinting and reproduction.
Now, those called upon to interpret the law do certainly make a distinction
between literary and intellectual property. An orally
delivered lecture cannot be strictly regarded as the literary
property of the lecturer until he has had it printed.
Indeed, such a lecture can no more be considered
the lecturer’s exclusive intellectual property, since its
content has just been poured out into the minds of his audience.
It does, however, if this distinction is permitted, intellectually
remain the property of the lecturer insofar that he is fully entitled
to develop the thoughts it contains in ever new forms. From the literary
point of view it is he who has the indisputable right to hand over,
in the most adequate form, his thoughts for publication, whenever
and however it may please him to do so. Therefore, the
violator of this right is guilty of an offence which
must be treated as equivalent to reprinting, and the nature of
his intentions is quite irrelevant.
On the other hand, one should by no means ever forget about
the commercial aspect of reprinting. Rather, one must
definitely also take into account the financial gain
which a lecturer is deprived of by the unauthorised impression of his
lectures, even if the person responsible for the unauthorised
impression does not make any profit out of it. That is why
the law stipulates in general that the party injured by
the reprint must be fully indemnified. The
correct consequence of this interpretation of the law would be
confirmed in every individual case one might care to look at. Suffice it to
recall how Thibaut’s oral lectures on his Pandect-
Compendium were in their time printed off by an unauthorised
third party, to the sizeable and irretrievable financial
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detriment of this scholar and teacher!
If in order to establish a case of illegal reprinting
one were always to insist on proof of a profit-seeking
intention, the protection given by the law would often turn
out to be quite illusory, especially in those cases where an
oral lecture is printed and published. Moreover,
one should also distinguish between a profit-seeking and a self-
interested intention in a wider sense. A literary intention which
doesn’t aim for financial profit can nevertheless also be self-interested.
One would therefore be well advised to take the well-known
expert report of the Superior Court of Appeals of 13 February 1844 (supplement
to the Ministry of Justice’s official gazette of 1844, Nr.16) in quite a wide
sense when it recognises this as the only tenable guiding-rule:
namely, that the Prussian law of 11 June 1837 does not require proof of
a self-interested intention, neither in cases of reprinting as such,
nor in the equivalent ones (§.3) where transcripts of oral academic
lectures are printed without the lecturer’s consent.
This opinion- which in the present case cannot but lead to
recognition of the denunciator’s right to legal protection against the
unauthorised impression of his lectures- is,
moreover, supported substantially by German federal law
and the legislation of Darmstadt, the latter being particularly
relevant here given that P.’s book was published in Darmstadt.
The Federal Directive of 29 November 1837 protects (Art.1)
against reprinting “all kinds of literary works, whether already
published or not”, entitles (Art.4) the injured
party to claim compensation, and prohibits (Art.5)
the sale of the reprint copies in all federal territories. According to
federal law, therefore, the notes taken of A.’s lectures, being a still
unpublished literary work, could not be legally reproduced by printing
without the originator’s consent. That such reproduction is only
then deemed illegal when it is carried out with a profit-seeking
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intention is not at all what the Federal Directive
says or even so much as implies.
No less is the support which the spirit of the Darmstadt law
of 23 September 1830 - which in this respect, admittedly,
does not seem to be formulated so definitely as the Prussian
law of 11 June 1837 - would lend to the denunciator’s invocation of
legal protection against the impression of his lectures.
For this law too contains no suggestion that a
profit-seeking intention on the part of the reprinter must be proved.
Article 1 of this law puts the printing of a lecture without
the permission of its author into the same category as all other
kinds of illegal reprinting of published printed works. Art. 5 does,
it is true, allow “verbatim extracts from a whole work...in critical
and other periodical works, as well as in larger compilations,
and also as occasional components or supplements to other
works.” Yet, firstly, this Art.5 almost certainly has only already
published and printed works in mind. And, secondly, the divulgation
(even if it is done little by little) of a whole, hitherto unprinted,
series of lectures can in no way be subsumed under the concept of
“verbatim extracts from a whole work.”
For these reasons it is the undersigned committee’s duty to
conclude its report with the only opinion possible:
that the aforementioned book by P. contains an illegal impression
of the lecture series on Philosophy of Revelation given by A.
at *** university during the winter semester of 1841/42.
Thus resolved at the meeting of 28 January 1846
The Society of Literary Experts
Translation by: Luis A. Sundkvist