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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
Back | Record | Images | Commentaries: [1]
Translation only | Transcription only | Show all | Bundled images as pdf
12FIRST PART
given to authors by the previous July Decree had been insufficient. Their complaints
were taken up again by Beaumarchais. With what eloquence does he claims his right
of property to his work! « It is rather strange, he says in the petition he submitted to the
Assembly, that an express law was necessary to prove to the whole of France that the
property of a dramatic author belongs to him, that nobody has the right to seize it. Given
that this principle, derived from the most basic rights of man, has so unquestionably been
accepted to apply to all human properties acquired by work, gift, sale or heritance, one
might surely think it would be ridiculous to have to decree it by way of law. Only my property
as a dramatic author, more sacred than all the others, since it does not come to me from
anyone else and can in no way be disputed by intentional misrepresentation, fraud or
enticement, the work which comes out of my brain just as Minerva leapt out, fully armed,
from that of the king of the Gods, my property alone required a law to pronounce that it is
mine, to ensure my possession of it ». And with a constantly growing virulence, he
denounces « the robbery committed by the theatre directors, by these despots in league
with their slave actors,… so as to rob the authors, whose property, which is almost non-
existent during their lifetime anyway, is lost to their heirs five years after their death ». For
such was, in fact, the term fixed by the previous decree. So Beaumarchais obtained the
Decree of 30-31st August, 1791, regarding agreements made between the authors and
the theatre directors, which dealt only with this point, satisfied no-one, and was soon to
be replaced by the Law of 19th July, 1793, which since then has always remained in
force.
What is the object of this Law? Lakanal will give us the answer to that, in the tone
that is so characteristic of that time.
« Of all properties, the most incontestable, the one whose increase is in no way
injurious to Republican equality and which gives no offence to liberty, is undeniably the
property of works of genius; it is if anything surprising that it should have proved necessary
to recognize this property and to secure its free exercise by a positive law, and that a great
Revolution like ours should have been required to return us, in this as in so many other
matters, to the simplest elements of common justice. Genius fashions in silence a work
which pushes back the boundaries of human knowledge: instantly, literary pirates seize it,
nd the author must pass into immortality only through the horrors of poverty. Ah! What of
his children...? Citizens, the lineage of the great Corneille sputtered out in indigence! The
Committee has some legislative provisions to propose which will make up the Declaration
of the Rights of Genius. » (Jur. Gen. v° Propriété Littéraire, n° 76-1°).
When one reads such declarations, one cannot but wonder at how the Court of Paris
can pretend that the Laws of 1791 and 1793 did not recognize, in « the work that is published
or performed, a good which is susceptible of property ». But I will go on and just state that
what the Law of 1793 is aiming at, by giving the author an exclusive right on his works, by
regulating the prosecution and seizure of counterfeited works, is to protect literary property
against piracy. This is what this Law deals with; it is not at all concerned with the right of the
author’s spouse.
In fact, in its Art. 1 this Law does describe the right which it grants to the author as an
exclusive right, just as the criticized decision in our case emphasizes it too. But this does not
mean that it attributes to this word the meaning which the Court of Paris would like to give it,
that is of a personal right which is not transferable and is exclusively attached to the author’s
person from whom it cannot be separated. Such an interpretation is entirely contrary
to the meaning as well as the spirit of the Decree. Of course, when one uses the term
private right [droit privative], one is also referring at the same time to a personal and
exclusive right – personal in the sense that it belongs to an individual, and exclusive in
the sense that it is peculiar to the person in whom it is invested, with the exclusion of
any third parties who would like to seize it without his permission. And this is with this
purport that the Decree of 1793 enshrines the author’s right, opposing it to the right of
the public domain, to that of those people who would want to have the work performed
or printed against the will of the author, or without his agreement. But it does not go beyond
that, and, in particular, it does not say that this right is exclusively attached to the author’s
person. The proof of this is that it admits the transferability of this right, that it recognizes
that the latter can be passed down to heirs (Art. 2 and 7). And consider now the terms
actually used by these articles. Art. 1 states first of all: « the authors of writings of any
kind… shall throughout their entire life enjoy the exclusive right to sell, authorize for sale
and distribute their works in the territory of the Republic, and to transfer that property in full
or in part ». Then Art. 2 adds: « Their heirs or transferees shall enjoy the same right for
a period of ten years following the death of the author ». And Art. 7 returns to this same
idea. « The heirs of authors of works of literature or of engravings, or of any other production
of the mind or of genius within the domain of the Fine Arts, shall have exclusive property
in those works for a period of ten years ».
Now, surely, when this right has been transferred to the author’s heirs or assignees,
one cannot claim that it still retains the character of a non-transferable property from which
one might try to deduce its irreducible personality. And yet Art. 2 and Art. 7 use those very
words – exclusive property, from which certain people would like to induce that they apply
to the author himself! Let us therefore conclude our observations on the Decree of 1793 by
saying what we have already said about the Decrees of 1791. Though it does regulate the
relations between the public and the author, it does not concern itself with the concurrent
rights of the author and his spouse, and hence it does not contain any exemption to the
regulations of common law
[2nd column:]
which the Code Civil was not to establish until eleven years later.
It is the Decree of 5th February, 1810, which was the first to establish the
right of the author’s wife, and immediately we see here how the principles of
common law regarding matrimonial agreements between spouses are invoked.
Indeed, Art. 39 is couched in these terms: « The right of property is guaranteed
to the author and his widow during her lifetime, if the matrimonial agreements
of the latter entitle her to it, and to their children for a period of twenty years ».
So here we have the effect of matrimonial agreements being explicitly
reserved; here, by a formal reference to the Code Civil, which at that point had
been in force for six years, we see the authority of common law being recognized,
not excluded, as would be necessary for the opposite system to prevail. On the
contrary, the Decree makes explicit reference to it.
The argumentation is compelling and decisive. But the court of Paris sidesteps it in
the simplest possible way - by suppressing in the text the very words which it is
annoyed by: « Whereas, it argues, Art. 39 of the Decree of 5th February,1810, grants
in all cases to his children (the author’s) his rights in their entirety for twenty years after
his widow’s death, so this excludes them in principle from the system of community ».
In their entirety? Yes, with the reservation of those rights which the matrimonial
agreements have accorded to the wife and whose benefit the text itself reserves to
her. These are the terms of the Article, and the interpreter who is called upon to apply
it in practice should not truncate it to suit his fancy.
Let us also observe further that, just as with the Decrees of 1791 and 1793, the
Decree of 1810 only takes into account the rights of the author, his widow and his
children, insofar as they compete with those of the public and not to the extent to which
they have to be exercised with regard to one another. This is what your Chamber of
Petitions was careful to make clear in its ruling of 16th August, 1880: « Whereas, it
says there, Art. 39 of the Decree of 5th Feb., 1810, which grants to the widow a lifetime
right to the works of her husband, did not at all set itself the task of regulating the
respective rights of the spouses, nor those of widows and other heirs with regard to one
another; whereas its purpose was solely to establish the rights of authors, their
widows, children and transferees with regard to the public… ».
However, I do not deny that the laconism of the 1810 Decree has in the past given
rise to some profound complications concerning the application of common law to literary
property; and the question as to whether, in order to assess the right
which accrues to the widow under this decree, it is necessary to refer to the Code Civil, or
whether, so that the author’s wife should be able to benefit from the provisions of the
decree, an explicit stipulation is required in the prenuptial contract , has been much
debated amongst our jurists. « The most reliable opinion, Dalloz tells us, Jur. Gén. v°
Propriété Littéraire, n°223, was that a special stipulation is not necessary to secure
the widow’s right, and that these words: « if the matrimonial agreements entitle her to it »
refer to the provisions of common law, to the regime which the spouses have adopted
or are considered to have adopted if they had not drawn up a contract » (In the same
sense, see: Jur. Gén. v°. Contrat de marriage, n°628).
And this is, indeed, what evidently emerges from the discussion and the exposé
des motifs of this Art. 39, such as they are reported by M. Parant (Lois de la Presse en
1834, Supplément, p. 458f.). This author, who was one of your soundest Attorney
Generals, had, in the first edition of his book, subscribed to the opinion which I am now
upholding before you. But he came up against certain objections which worried him, so
he decided to study them again by examining how the definitive wording of Art. 39 was
arrived at. Only a most learned jurist, with a wide range of case materials at his disposal,
would, so Parant confesses, be able to give me some clarifications on this point. So I in
my turn addressed myself to M. the Baron Locré, whose generosity I had already had
occasion to experience, and the former Secretary General of the Council of State
provided me with the following explanation: « I was in charge of reviewing all the drafts
of decrees adopted by the Council of State before presenting them to the Emperor. I was
supposed to examine them not just to check whether the draft, though it would have been
re-read again by the Council, accurately conveyed its resolution, but also to submit to
the Emperor, if so required, any observations which came to my mind in the course of
this new work. But normally I would first pass these observations on to the reporter,
because if he adopted the proposed rectification, it would immediately be made in
cooperation with him. Now, as far as the Decree of 5th Feb., 1810, is concerned, the
draft of Art. 39, which was decided upon by the Council itself during the session of 13th
Jan., 1810, did not include these words: « If the matrimonial agreements entitle her
to it ». Nobody had noticed the absence of this necessary restricting qualification, and
it only struck me when I was to review the draft for a final time. I was compelled to
tell M. Regnaud (de Saint-Jean d’Angely), the reporter of the draft: « You haven’t taken
into account the import of this article. Don’t you see that your vague formulation might
serve to hand over to a wife a share in a property to which it is possible that she has
no right whatsoever, as in the case that the marriage had been contracted with
exclusion of community, under the system of dowry, with separation of the spouses’
property, and, generally, in all those cases where the wife
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
12
given to authors by the previous July Decree had been insufficient. Their complaints
were taken up again by Beaumarchais. With what eloquence does he claims his right
of property to his work! « It is rather strange, he says in the petition he submitted to the
Assembly, that an express law was necessary to prove to the whole of France that the
property of a dramatic author belongs to him, that nobody has the right to seize it. Given
that this principle, derived from the most basic rights of man, has so unquestionably been
accepted to apply to all human properties acquired by work, gift, sale or heritance, one
might surely think it would be ridiculous to have to decree it by way of law. Only my property
as a dramatic author, more sacred than all the others, since it does not come to me from
anyone else and can in no way be disputed by intentional misrepresentation, fraud or
enticement, the work which comes out of my brain just as Minerva leapt out, fully armed,
from that of the king of the Gods, my property alone required a law to pronounce that it is
mine, to ensure my possession of it ». And with a constantly growing virulence, he
denounces « the robbery committed by the theatre directors, by these despots in league
with their slave actors,… so as to rob the authors, whose property, which is almost non-
existent during their lifetime anyway, is lost to their heirs five years after their death ». For
such was, in fact, the term fixed by the previous decree. So Beaumarchais obtained the
Decree of 30-31st August, 1791, regarding agreements made between the authors and
the theatre directors, which dealt only with this point, satisfied no-one, and was soon to
be replaced by the Law of 19th July, 1793, which since then has always remained in
force.
What is the object of this Law? Lakanal will give us the answer to that, in the tone
that is so characteristic of that time.
« Of all properties, the most incontestable, the one whose increase is in no way
injurious to Republican equality and which gives no offence to liberty, is undeniably the
property of works of genius; it is if anything surprising that it should have proved necessary
to recognize this property and to secure its free exercise by a positive law, and that a great
Revolution like ours should have been required to return us, in this as in so many other
matters, to the simplest elements of common justice. Genius fashions in silence a work
which pushes back the boundaries of human knowledge: instantly, literary pirates seize it,
nd the author must pass into immortality only through the horrors of poverty. Ah! What of
his children...? Citizens, the lineage of the great Corneille sputtered out in indigence! The
Committee has some legislative provisions to propose which will make up the Declaration
of the Rights of Genius. » (Jur. Gen. v° Propriété Littéraire, n° 76-1°).
When one reads such declarations, one cannot but wonder at how the Court of Paris
can pretend that the Laws of 1791 and 1793 did not recognize, in « the work that is published
or performed, a good which is susceptible of property ». But I will go on and just state that
what the Law of 1793 is aiming at, by giving the author an exclusive right on his works, by
regulating the prosecution and seizure of counterfeited works, is to protect literary property
against piracy. This is what this Law deals with; it is not at all concerned with the right of the
author’s spouse.
In fact, in its Art. 1 this Law does describe the right which it grants to the author as an
exclusive right, just as the criticized decision in our case emphasizes it too. But this does not
mean that it attributes to this word the meaning which the Court of Paris would like to give it,
that is of a personal right which is not transferable and is exclusively attached to the author’s
person from whom it cannot be separated. Such an interpretation is entirely contrary
to the meaning as well as the spirit of the Decree. Of course, when one uses the term
private right [droit privative], one is also referring at the same time to a personal and
exclusive right – personal in the sense that it belongs to an individual, and exclusive in
the sense that it is peculiar to the person in whom it is invested, with the exclusion of
any third parties who would like to seize it without his permission. And this is with this
purport that the Decree of 1793 enshrines the author’s right, opposing it to the right of
the public domain, to that of those people who would want to have the work performed
or printed against the will of the author, or without his agreement. But it does not go beyond
that, and, in particular, it does not say that this right is exclusively attached to the author’s
person. The proof of this is that it admits the transferability of this right, that it recognizes
that the latter can be passed down to heirs (Art. 2 and 7). And consider now the terms
actually used by these articles. Art. 1 states first of all: « the authors of writings of any
kind… shall throughout their entire life enjoy the exclusive right to sell, authorize for sale
and distribute their works in the territory of the Republic, and to transfer that property in full
or in part ». Then Art. 2 adds: « Their heirs or transferees shall enjoy the same right for
a period of ten years following the death of the author ». And Art. 7 returns to this same
idea. « The heirs of authors of works of literature or of engravings, or of any other production
of the mind or of genius within the domain of the Fine Arts, shall have exclusive property
in those works for a period of ten years ».
Now, surely, when this right has been transferred to the author’s heirs or assignees,
one cannot claim that it still retains the character of a non-transferable property from which
one might try to deduce its irreducible personality. And yet Art. 2 and Art. 7 use those very
words – exclusive property, from which certain people would like to induce that they apply
to the author himself! Let us therefore conclude our observations on the Decree of 1793 by
saying what we have already said about the Decrees of 1791. Though it does regulate the
relations between the public and the author, it does not concern itself with the concurrent
rights of the author and his spouse, and hence it does not contain any exemption to the
regulations of common law
[2nd column:]
which the Code Civil was not to establish until eleven years later.
It is the Decree of 5th February, 1810, which was the first to establish the
right of the author’s wife, and immediately we see here how the principles of
common law regarding matrimonial agreements between spouses are invoked.
Indeed, Art. 39 is couched in these terms: « The right of property is guaranteed
to the author and his widow during her lifetime, if the matrimonial agreements
of the latter entitle her to it, and to their children for a period of twenty years ».
So here we have the effect of matrimonial agreements being explicitly
reserved; here, by a formal reference to the Code Civil, which at that point had
been in force for six years, we see the authority of common law being recognized,
not excluded, as would be necessary for the opposite system to prevail. On the
contrary, the Decree makes explicit reference to it.
The argumentation is compelling and decisive. But the court of Paris sidesteps it in
the simplest possible way - by suppressing in the text the very words which it is
annoyed by: « Whereas, it argues, Art. 39 of the Decree of 5th February,1810, grants
in all cases to his children (the author’s) his rights in their entirety for twenty years after
his widow’s death, so this excludes them in principle from the system of community ».
In their entirety? Yes, with the reservation of those rights which the matrimonial
agreements have accorded to the wife and whose benefit the text itself reserves to
her. These are the terms of the Article, and the interpreter who is called upon to apply
it in practice should not truncate it to suit his fancy.
Let us also observe further that, just as with the Decrees of 1791 and 1793, the
Decree of 1810 only takes into account the rights of the author, his widow and his
children, insofar as they compete with those of the public and not to the extent to which
they have to be exercised with regard to one another. This is what your Chamber of
Petitions was careful to make clear in its ruling of 16th August, 1880: « Whereas, it
says there, Art. 39 of the Decree of 5th Feb., 1810, which grants to the widow a lifetime
right to the works of her husband, did not at all set itself the task of regulating the
respective rights of the spouses, nor those of widows and other heirs with regard to one
another; whereas its purpose was solely to establish the rights of authors, their
widows, children and transferees with regard to the public… ».
However, I do not deny that the laconism of the 1810 Decree has in the past given
rise to some profound complications concerning the application of common law to literary
property; and the question as to whether, in order to assess the right
which accrues to the widow under this decree, it is necessary to refer to the Code Civil, or
whether, so that the author’s wife should be able to benefit from the provisions of the
decree, an explicit stipulation is required in the prenuptial contract , has been much
debated amongst our jurists. « The most reliable opinion, Dalloz tells us, Jur. Gén. v°
Propriété Littéraire, n°223, was that a special stipulation is not necessary to secure
the widow’s right, and that these words: « if the matrimonial agreements entitle her to it »
refer to the provisions of common law, to the regime which the spouses have adopted
or are considered to have adopted if they had not drawn up a contract » (In the same
sense, see: Jur. Gén. v°. Contrat de marriage, n°628).
And this is, indeed, what evidently emerges from the discussion and the exposé
des motifs of this Art. 39, such as they are reported by M. Parant (Lois de la Presse en
1834, Supplément, p. 458f.). This author, who was one of your soundest Attorney
Generals, had, in the first edition of his book, subscribed to the opinion which I am now
upholding before you. But he came up against certain objections which worried him, so
he decided to study them again by examining how the definitive wording of Art. 39 was
arrived at. Only a most learned jurist, with a wide range of case materials at his disposal,
would, so Parant confesses, be able to give me some clarifications on this point. So I in
my turn addressed myself to M. the Baron Locré, whose generosity I had already had
occasion to experience, and the former Secretary General of the Council of State
provided me with the following explanation: « I was in charge of reviewing all the drafts
of decrees adopted by the Council of State before presenting them to the Emperor. I was
supposed to examine them not just to check whether the draft, though it would have been
re-read again by the Council, accurately conveyed its resolution, but also to submit to
the Emperor, if so required, any observations which came to my mind in the course of
this new work. But normally I would first pass these observations on to the reporter,
because if he adopted the proposed rectification, it would immediately be made in
cooperation with him. Now, as far as the Decree of 5th Feb., 1810, is concerned, the
draft of Art. 39, which was decided upon by the Council itself during the session of 13th
Jan., 1810, did not include these words: « If the matrimonial agreements entitle her
to it ». Nobody had noticed the absence of this necessary restricting qualification, and
it only struck me when I was to review the draft for a final time. I was compelled to
tell M. Regnaud (de Saint-Jean d’Angely), the reporter of the draft: « You haven’t taken
into account the import of this article. Don’t you see that your vague formulation might
serve to hand over to a wife a share in a property to which it is possible that she has
no right whatsoever, as in the case that the marriage had been contracted with
exclusion of community, under the system of dowry, with separation of the spouses’
property, and, generally, in all those cases where the wife
No Transcription available.