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Court of Cassation on moral rights, Paris (1902)
Source: Bibliothèque universitaire de Poitiers (SCD) : Dalloz, Jurisprudence générale. Recueil Périodique et critique de jurisprudence, de legislation et de doctrine, 1903.1.5
Citation:
Court of Cassation on moral rights, Paris (1902), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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8FIRST PART
Paris (1st Chamber. – Messrs Forichon, 1st pr. – Jacomy, assistant public prosecutor)
pronounced, on 1st Feb., 1900, the following decision, reversing the judgment of the
Tribunal of the Seine:
Considering that a published or performed musical work did not constitute, under
the Laws of 13-19th January, 1791 and 19-24th July, 1793, an asset which was susceptible
of a property right, as it existed then and under the previous legislation, but merely gave
the author special, temporary rights, which were different from the absolute right of
perpetual property; – Considering that therefore, the Code Civil, which did not modify
anything in this respect, could not put them in the same category as the ordinary
property of common right [de droit commun] which it was meant to regulate, nor could it
mix them up with the latter and include them in the personal or real estate of its article
516; that it could not either leave them to be forgotten; and that, consequently, by its
silence, especially in its art. 529, it excluded them from its classification; -
Considering that the subsequent decrees and laws did not either attribute to them the
nature of a property of common right, by including them in the two categories of estate
envisaged by the Code Civil; indeed, that the Decree of 5th February, 1810 and the
Code Pénal of the same year, the Laws of 4th April, 1854, 14th July, 1866, and 12th
February, 1895 have protected, regulated and expanded these rights, without, though,
changing their legal nature; - Considering that, on the contrary, the reporter of the Law
of 19th July, 1793, asserted that they were a property of a kind completely different to
that of other properties, and that the reporters of the two most recent Laws of 1866 and
1898 in their turn came up with identical statements; - That all the aforementioned texts
are exclusive of the property right of Art. 544 of the Code Civil by the suppression of
perpetuity without previous compensation; that, besides, Art. 6 of the Constitution of
14th January, 1852, granted to the
[2nd column:]
Head of State, acting without the intervention of Parliament, no more than the power to
conclude treaties of peace, alliance or commerce; and that he nevertheless signed
numerous international treaties on “artistic property”, because these were not, in fact,
concerned with ordinary property rights, but only with the protection of a monopoly of
exploitation; that, moreover, these diplomatic contracts have always been recognized
as valid; - Considering, finally, that these rights have always been and remained no more
than exclusive privileges for a temporary exploitation; - That they thus remain alongside
to, and separate from, the Code Civil’s classifications; and that the question as to whether
or not they fall within the two spouse’s joint estate cannot at all be resolved by reference
to Articles 516 or 517, 1401 or 1498 of the Code Civil; – Considering that the special laws
have not either changed this nature of a personal privilege, nor, essentially, to its legal
sense as it is normally expressed; that indeed, the Decree of 19th January, 1791, requires,
for the performance of a play by a living author, his formal and written consent, and that the
Law of 1793 grants composers of music an exclusive right for life; that Art. 39 of the Decree of
5th February, 1810, gives in all cases to the author’s children, for twenty years following the
death of the latter’s widow, his rights in their entirety, which therefore excludes them in
principle from the joint estate; that the Law of 14th July, 1866 has extended to all
matrimonial settlements advantages which are more favourable for the surviving
spouse, especially before the modification of Art. 767 of the Code Civil by the
Law of 9th March, 1891; that it only considers a couple’s joint estate to the extent of
giving it, in addition, the income from author’s rights realized before its dissolution,
but not those rights as such; - That if it had wanted to go further, before the Law of
1891, it would have explicitly enacted such a provision; and that, on the contrary, it
pronounced two forfeitures of possession [jouissance] which are in logical terms
not very compatible
_________________________________________________________________________________
[...]
No Transcription available.
Source: Bibliothèque universitaire de Poitiers (SCD) : Dalloz, Jurisprudence générale. Recueil Périodique et critique de jurisprudence, de legislation et de doctrine, 1903.1.5
Citation:
Court of Cassation on moral rights, Paris (1902), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | Commentaries: [1]
Translation only | Transcription only | Show all | Bundled images as pdf
8
Paris (1st Chamber. – Messrs Forichon, 1st pr. – Jacomy, assistant public prosecutor)
pronounced, on 1st Feb., 1900, the following decision, reversing the judgment of the
Tribunal of the Seine:
Considering that a published or performed musical work did not constitute, under
the Laws of 13-19th January, 1791 and 19-24th July, 1793, an asset which was susceptible
of a property right, as it existed then and under the previous legislation, but merely gave
the author special, temporary rights, which were different from the absolute right of
perpetual property; – Considering that therefore, the Code Civil, which did not modify
anything in this respect, could not put them in the same category as the ordinary
property of common right [de droit commun] which it was meant to regulate, nor could it
mix them up with the latter and include them in the personal or real estate of its article
516; that it could not either leave them to be forgotten; and that, consequently, by its
silence, especially in its art. 529, it excluded them from its classification; -
Considering that the subsequent decrees and laws did not either attribute to them the
nature of a property of common right, by including them in the two categories of estate
envisaged by the Code Civil; indeed, that the Decree of 5th February, 1810 and the
Code Pénal of the same year, the Laws of 4th April, 1854, 14th July, 1866, and 12th
February, 1895 have protected, regulated and expanded these rights, without, though,
changing their legal nature; - Considering that, on the contrary, the reporter of the Law
of 19th July, 1793, asserted that they were a property of a kind completely different to
that of other properties, and that the reporters of the two most recent Laws of 1866 and
1898 in their turn came up with identical statements; - That all the aforementioned texts
are exclusive of the property right of Art. 544 of the Code Civil by the suppression of
perpetuity without previous compensation; that, besides, Art. 6 of the Constitution of
14th January, 1852, granted to the
[2nd column:]
Head of State, acting without the intervention of Parliament, no more than the power to
conclude treaties of peace, alliance or commerce; and that he nevertheless signed
numerous international treaties on “artistic property”, because these were not, in fact,
concerned with ordinary property rights, but only with the protection of a monopoly of
exploitation; that, moreover, these diplomatic contracts have always been recognized
as valid; - Considering, finally, that these rights have always been and remained no more
than exclusive privileges for a temporary exploitation; - That they thus remain alongside
to, and separate from, the Code Civil’s classifications; and that the question as to whether
or not they fall within the two spouse’s joint estate cannot at all be resolved by reference
to Articles 516 or 517, 1401 or 1498 of the Code Civil; – Considering that the special laws
have not either changed this nature of a personal privilege, nor, essentially, to its legal
sense as it is normally expressed; that indeed, the Decree of 19th January, 1791, requires,
for the performance of a play by a living author, his formal and written consent, and that the
Law of 1793 grants composers of music an exclusive right for life; that Art. 39 of the Decree of
5th February, 1810, gives in all cases to the author’s children, for twenty years following the
death of the latter’s widow, his rights in their entirety, which therefore excludes them in
principle from the joint estate; that the Law of 14th July, 1866 has extended to all
matrimonial settlements advantages which are more favourable for the surviving
spouse, especially before the modification of Art. 767 of the Code Civil by the
Law of 9th March, 1891; that it only considers a couple’s joint estate to the extent of
giving it, in addition, the income from author’s rights realized before its dissolution,
but not those rights as such; - That if it had wanted to go further, before the Law of
1891, it would have explicitly enacted such a provision; and that, on the contrary, it
pronounced two forfeitures of possession [jouissance] which are in logical terms
not very compatible
_________________________________________________________________________________
[...]
No Transcription available.