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Provincial Court of Appeal on the right to copy Tollens’ works of poetry, Amsterdam (1858)
Source: Weekblad van het recht (1858), no. 1957, 2; Koninklijke Bibliotheek, NL 61 C 1000
Citation:
Provincial Court of Appeal on the right to copy Tollens’ works of poetry, Amsterdam (1858), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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1 translated page
Chapter 1 Page 1
No. 1957
PROVINCIAL COURTS.
PROVINCIAL COURT OF APPEAL IN NORTH HOLLAND.
Chamber of Correctional Appeals
Hearing of 27 April 1858.
President, Master J.M. van Maanen.
TOLLENS' WORKS OF POETRY. -- PIRACY. -- COPYRIGHT. -- CIVIL PARTY.
(See the judgment a quo in Gazette no. 1944)
The Court etc.,
Given the judgment by District Court in Amsterdam of 11th March 1858, given between the Public Prosecutor of that Court, appellant on the one side, and P.M. van Cleef, age 38 years, of profession bookseller, printer and publisher, born in Amsterdam, residing in Hilversum, on the opposing side, whereby the latter, with denial of the proposed plea for adjournment, has been declared guilty of piracy, and consequently, as a result of the thereby cited articles of Act, fined NLG 300 for the benefit of the common poor in Hilversum, and furthermore all unsold copies of the piracy available within this Kingdom will be seized; for the benefit of the owner of the original print, ordered to pay the same owner the value of two thousand copies of the pirated works reported in the judgment, calculated according to the booksellers' price of the lawful print, amounting to NLG 19 060, as well as the costs of the proceedings, just like the fine, recoverable by constraint; also being denied with that judgment the claim of the civil party, and ordered to pay those costs.
Having heard the demand of the Proc. Gen., to the effect: "that the aforesaid Court of Appeal, rendering judgment in the appeal, finds the defendant guilty of the crime of piracy and, as a result of art. 13 of the Decree of the Sovereign of 24 Jun. 1814 (Bulletin of Acts, Orders and Decrees No. 17), art. 1 and 4 of the Act of 25 Jan. 1817 (Bulletin of Acts, Orders and Decrees No. 5), art. 207 and 227 Criminal Procedure, fine him NLG 300 for the benefit of the common poor in Hilversum, to order the payment of the value of two thousand copies of the pirated works to the plaintiff claiming damages, calculated according to the booksellers' price of the lawful print, all unsold copies of the piracy available will be seized for the benefit of the mentioned plaintiff claiming damages, furthermore to order to pay the costs of the proceedings etc. ; as well as on his advisory opinion, delivered at this demand, that the Court will deny the third party applicant its claim, and order them to pay the costs, caused by its joining the action;"
Having heard the statement of defence of the joining party as the plaintiff claiming damages, by the children and some heirs together of the now late Mr. H. Tollens C.Zoon, explained by the counsel M.H. of Jacob, Master of Law, delivered at the hearing of this Court, to the effect "that it may please the court, to authorize the third party applicant to publish the present contested judgment, be it by putting up a number of copies to be set in this judgment, or by entering them in two newspapers of this province, to be given in this case, at the expense of the accused, and to recover the costs from the appellant on presentation of receipt, if need be by means of foreclosure of his movable or immovable property, the accused is ordered to pay the costs of the impending proceedings, all not exceeding NLG 150, whereto the interveners state to limit their claim.
Considering, that from the confession of the appellant, relating to the declarations of several witnesses heard in the proceeding of this Court and the in judicio available copy of a book, entitled: "Distributed Poems and Prosa of H. Tollens CZn, collected by G. Engelberts Gerrits, with a life sketch of the author and explanatory notes, Hilversum P.M. van Cleef Izn., Antwerpen W.L. van Oosterzee 1857," has become apparent: that the appellant has printed, published, and sold, in the year 1857, the first volume of the aforementioned, with the intent, according to earlier distributed prospectus and the preface, to follow this with some collections; that this volume contains around forty poems (with modifications and alterations here and there of the original text), copied and derived from different poetry books of the late poet H. Tollens aforementioned, published in this country at different times, mostly more than fifty years ago, at other publishers.
that the appellant, on grounds of these facts, has been prosecuted and convicted in the first instance on account of piracy;
Considering, in this respect, that it has become apparent from the statements of the witnesses, brought forward and heard on the side of the appellant to acquit him from the proceedings of this Court: that the appellant has copied some of the poems, contained in the aforementioned volume published by him with the consent of those witnesses from works, of which the witnesses claim to possess copyright;
that, whatever the veracity of this claim, this is established nevertheless: that the appellant with regard to these poems, being of the opinion that he was authorized to copy by the rightful owners of the copyright, has acted in good faith, and therefore cannot be guilty of piracy under criminal law;
That, with regard to the other poems included in the aforementioned volume, it has become apparent from the acknowledgement of the appellant, confirmed by the witness Blok: that he has borrowed them from a work, entitled: "Poetry-loving collections", preceded by Andromache, tragedy by H. Tollens CZn., Rotterdam at J. Hofhout en Zoon 1802," of which the reported witness previously, together with other works, had purchased the remaining copies from the fund of the Bookseller Wallez and Co. in the Hague, and later transferred them to the appellant;
that thereby however has not been transferred to the appellant the copyright;
that this has been proved by the statement of the witness Blok, demonstrating that in that sale of aforementioned remaining copies was not included copyright, since he, Blok, did not own that right, and therefore could not transfer it to the appellant;
that the appellant, whatever he claims in this regard, cannot have been of the opinion either that he, by the purchase of the copies aforementioned, also obtained copyright: because, even if, as is claimed, that right initially was bookseller Hofhout's, and from him passed down to his colleague Wallez, then still the purchase of the remaining copies did not include the copyright; while moreover, according to the statement of the witness Blok, the latter had apprised the appellant, who with the aforementioned selling had pressed for the obtaining of copyright, that he did not own it, as is also confirmed in the in judicio submitted letters, which the app. has recognized as having been exchanged between him and witness Blok at the aforesaid occasion;
that on behalf of the app. has been claimed that no copyright on the aforesaid book would exist, or at least have been proven to exist, however, that this proof was unfounded;
that yet the right to be allowed to copy by print is an indisputable right, inherent to the author of each work, or he, to whom the right has been transferred in a lawful manner;
that this principle has been recognized in earlier as well as later legislation on literary property;
that until 1796, privileges or patents were granted for the exclusive printing, publishing or selling of books, however, that these privileges did not create copyright for them, who had requested and obtained those, but protected against infringements of existing, at least supposedly existing, copyright, and were always granted subject to the rights of third parties, so that even vested privilege expired in case it became apparent that the right to copy existed with another; that this understanding of the privileges referred to still finds confirmation in art. 1 of the Official Publication of the State Administration of the Batavian Republic, codified 3 June 1803, wherein is said: "That from now on no Privileges or Patents will be granted by public authority etc. (because) everyone, without any special law to his benefit, is entitled to the protection of his rightful property;"
that therefore, in agreement with this, the decree of the Provincial Administration of Holland of 8 Dec. 1796, which, until the just mentioned general regulation of 3 June 1803, was in effect in that province, and under which "the Poetry-loving collections" have been published at Hofhout, -- in art. 1, implicitly recognizes the existence of copyright separate from privileges or patents, and, generally abolishing the regime of Privileges or Patents in the province of Holland, therefore also for authors, who, publishing at their own expense, used to be able to obtain privileges, pursuant to Notice of the States of Holland and West-Freesia of 9 Jan. 1686, -- regulates this right only with respect to booksellers, and binds reservation thereof to conditions, from which follows: that the legislator of 1796 accept implicitly and unconditionally the copyright of the author as existing per se;
that, according to these considerations, the copyright of the actual poems rested, as is the case for every original literary fruit, with the author, in casu the poet Tollens, and that this right only could be lost to its owner by lawful transference thereof to another, since the formalities, neglect whereof, according to art. 5 of the aforementioned decree, caused the copyright to be cancelled, have been written only for the bookseller, owner of the copyright, but not for the author;
that of such a transference, whatever may have become apparent regarding later poems, with regard to the here present at least, hide nor hair has been seen at the proceedings, wherefore there exists no ground to, as demanded by the defence, suspend the criminal proceedings, pursuant to art. 6 of the Criminal Code; but that, on the contrary, aside from the assurance from the now deceased author in his will, and the statement of the witnesses Tollens and Suringar in judicio, the latter of which on this point have to be, by necessity, de auditu, the preface of the "Poetry-loving collections" referred to, which the author has written himself and undersigned with his initials, convincingly demonstrates that not the bookseller Hofhout, but the poet Tollens was the publisher of those poems;
that this fact, in connection with the righteous manner, in which the author, in later editions of his works, has publically appointed some of the poems contained in the "Poetry-loving collections" (see, BEETS, Varieties etc., 1st volume, Haarlem, Erven Bohn, 1858, p 35 and following), -- leaves no doubt that the aforementioned copyright always remained with its author, and now, as a result of his death in the latter part of 1856, with his heirs, transferred according to the Act of 25 Jan. 1817 (Bulletin of Acts, Orders and Decrees No. 5.);
that therefore the app., from the aforementioned poetry book, entitled "Poetry-loving collections" etc., of which the poet H. Tollens Cz., as author, owned the copyright, has copied several poems in the aforementioned volume published in print and sold by him, notwithstanding that he was aware that he did not own the copyright of that work, and therefore dolo malo, by which action he is guilty of unlawful piracy;
that this crime under art. 4 of the just mentioned act of 25 Jan. 1817, among other is threatened with payment of the value of two thousand copies of the pirated book, to be calculated according to the booksellers' price;
that the judgment a quo, on grounds of this stipulation, has set the value of the two thousand copies, to be satisfied by the app., at NLG 19,060, however, that this amount, on account of the unlawful piracy only having been shown with respect to the "Poetry-loving collections", published by Hofhout in 1802, has to be reduced to a lower number;
that the list of names of books, published by van Cleef in Amsterdam and the Hague in 1832, sets the price of the "Poetry-loving collections" at NLG 2.20; that, according to the witnesses Mulder, heard before the court, this is the price for private persons, of which at most a discount of 24 per cent and another 5 per cent extra have to be deducted to get to the booksellers' price;
that therefore 29 per cent == 64 cents, deducted from NLG 2.20, brings the booksellers' price of the "Poetry-loving collections" to NLG 1.56, and the cumulative value of two thousand copies to NLG 3120;
Considering in respect of the claim of the sworn third party applicant:
that, under art. 231 of the Criminal Code, the Criminal Court, in exceptional cases, is competent to take note of the civil proceedings to the compensation of damages suffered on account of infringement, if the injured party limits its claim for compensation to NLG 150 or less, and therefore limits the improvement of material disadvantage within these confines;
that publication of a criminal conviction is a res inaestimabilis, apparently to obtain compensation for pecuniary damage: wherefore the claim of the injured party falls outside the jurisdiction of the Court;
On aforesaid grounds, joining with the decision of the judgment, which has been appealed, except: 1. inasmuch as the app. has been declared guilty of pirating all the poems included in the volume published by him, and thus also those that he, according to the above, had copied in good faith; 2. the value of the two thousand copies, to be satisfied by the app., has thereby been set at NLG
19 060, and 3. the injured part has been denied its claim; therefore amending this conviction on these points, however, for the rest upholding it:
Acquits P.M. van Cleef of piracy of the just mentioned poems;
Sets the value of the two thousand copies of the "Poetry-loving collections" etc. referred to, published in Rotterdam by J. Hofhour and Son, calculated according to the booksellers' price, at a sum of NLG 3120;
Therefore fines the app. the amount of NLG 300 for the benefit of the common poor of the municipality Hilversum;
Seizes all the unsold copies of the piracy hitherto available in this Kingdom to the benefit of the owner of the original print;
Furthermore orders him to pay a sum of NLG 3120 to this owner;
Finally orders him to pay the costs of the proceedings, incurred in both instances for the benefit of the State, as the fine, recoverable by constraint;
Declares itself incompetent to take note of the claim of the plaintiff claiming damages; and
Orders it to pay the costs also caused at the appeal by its joining the action.
(Pleaded by Master Aug. Philips)
[...]
Translation by: Miluska Kooij
Source: Weekblad van het recht (1858), no. 1957, 2; Koninklijke Bibliotheek, NL 61 C 1000
Citation:
Provincial Court of Appeal on the right to copy Tollens’ works of poetry, Amsterdam (1858), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | No Commentaries
Translation only | Transcription only | Show all | Bundled images as pdf
1 translated page
Chapter 1 Page 1
No. 1957
PROVINCIAL COURTS.
PROVINCIAL COURT OF APPEAL IN NORTH HOLLAND.
Chamber of Correctional Appeals
Hearing of 27 April 1858.
President, Master J.M. van Maanen.
TOLLENS' WORKS OF POETRY. -- PIRACY. -- COPYRIGHT. -- CIVIL PARTY.
(See the judgment a quo in Gazette no. 1944)
The Court etc.,
Given the judgment by District Court in Amsterdam of 11th March 1858, given between the Public Prosecutor of that Court, appellant on the one side, and P.M. van Cleef, age 38 years, of profession bookseller, printer and publisher, born in Amsterdam, residing in Hilversum, on the opposing side, whereby the latter, with denial of the proposed plea for adjournment, has been declared guilty of piracy, and consequently, as a result of the thereby cited articles of Act, fined NLG 300 for the benefit of the common poor in Hilversum, and furthermore all unsold copies of the piracy available within this Kingdom will be seized; for the benefit of the owner of the original print, ordered to pay the same owner the value of two thousand copies of the pirated works reported in the judgment, calculated according to the booksellers' price of the lawful print, amounting to NLG 19 060, as well as the costs of the proceedings, just like the fine, recoverable by constraint; also being denied with that judgment the claim of the civil party, and ordered to pay those costs.
Having heard the demand of the Proc. Gen., to the effect: "that the aforesaid Court of Appeal, rendering judgment in the appeal, finds the defendant guilty of the crime of piracy and, as a result of art. 13 of the Decree of the Sovereign of 24 Jun. 1814 (Bulletin of Acts, Orders and Decrees No. 17), art. 1 and 4 of the Act of 25 Jan. 1817 (Bulletin of Acts, Orders and Decrees No. 5), art. 207 and 227 Criminal Procedure, fine him NLG 300 for the benefit of the common poor in Hilversum, to order the payment of the value of two thousand copies of the pirated works to the plaintiff claiming damages, calculated according to the booksellers' price of the lawful print, all unsold copies of the piracy available will be seized for the benefit of the mentioned plaintiff claiming damages, furthermore to order to pay the costs of the proceedings etc. ; as well as on his advisory opinion, delivered at this demand, that the Court will deny the third party applicant its claim, and order them to pay the costs, caused by its joining the action;"
Having heard the statement of defence of the joining party as the plaintiff claiming damages, by the children and some heirs together of the now late Mr. H. Tollens C.Zoon, explained by the counsel M.H. of Jacob, Master of Law, delivered at the hearing of this Court, to the effect "that it may please the court, to authorize the third party applicant to publish the present contested judgment, be it by putting up a number of copies to be set in this judgment, or by entering them in two newspapers of this province, to be given in this case, at the expense of the accused, and to recover the costs from the appellant on presentation of receipt, if need be by means of foreclosure of his movable or immovable property, the accused is ordered to pay the costs of the impending proceedings, all not exceeding NLG 150, whereto the interveners state to limit their claim.
Considering, that from the confession of the appellant, relating to the declarations of several witnesses heard in the proceeding of this Court and the in judicio available copy of a book, entitled: "Distributed Poems and Prosa of H. Tollens CZn, collected by G. Engelberts Gerrits, with a life sketch of the author and explanatory notes, Hilversum P.M. van Cleef Izn., Antwerpen W.L. van Oosterzee 1857," has become apparent: that the appellant has printed, published, and sold, in the year 1857, the first volume of the aforementioned, with the intent, according to earlier distributed prospectus and the preface, to follow this with some collections; that this volume contains around forty poems (with modifications and alterations here and there of the original text), copied and derived from different poetry books of the late poet H. Tollens aforementioned, published in this country at different times, mostly more than fifty years ago, at other publishers.
that the appellant, on grounds of these facts, has been prosecuted and convicted in the first instance on account of piracy;
Considering, in this respect, that it has become apparent from the statements of the witnesses, brought forward and heard on the side of the appellant to acquit him from the proceedings of this Court: that the appellant has copied some of the poems, contained in the aforementioned volume published by him with the consent of those witnesses from works, of which the witnesses claim to possess copyright;
that, whatever the veracity of this claim, this is established nevertheless: that the appellant with regard to these poems, being of the opinion that he was authorized to copy by the rightful owners of the copyright, has acted in good faith, and therefore cannot be guilty of piracy under criminal law;
That, with regard to the other poems included in the aforementioned volume, it has become apparent from the acknowledgement of the appellant, confirmed by the witness Blok: that he has borrowed them from a work, entitled: "Poetry-loving collections", preceded by Andromache, tragedy by H. Tollens CZn., Rotterdam at J. Hofhout en Zoon 1802," of which the reported witness previously, together with other works, had purchased the remaining copies from the fund of the Bookseller Wallez and Co. in the Hague, and later transferred them to the appellant;
that thereby however has not been transferred to the appellant the copyright;
that this has been proved by the statement of the witness Blok, demonstrating that in that sale of aforementioned remaining copies was not included copyright, since he, Blok, did not own that right, and therefore could not transfer it to the appellant;
that the appellant, whatever he claims in this regard, cannot have been of the opinion either that he, by the purchase of the copies aforementioned, also obtained copyright: because, even if, as is claimed, that right initially was bookseller Hofhout's, and from him passed down to his colleague Wallez, then still the purchase of the remaining copies did not include the copyright; while moreover, according to the statement of the witness Blok, the latter had apprised the appellant, who with the aforementioned selling had pressed for the obtaining of copyright, that he did not own it, as is also confirmed in the in judicio submitted letters, which the app. has recognized as having been exchanged between him and witness Blok at the aforesaid occasion;
that on behalf of the app. has been claimed that no copyright on the aforesaid book would exist, or at least have been proven to exist, however, that this proof was unfounded;
that yet the right to be allowed to copy by print is an indisputable right, inherent to the author of each work, or he, to whom the right has been transferred in a lawful manner;
that this principle has been recognized in earlier as well as later legislation on literary property;
that until 1796, privileges or patents were granted for the exclusive printing, publishing or selling of books, however, that these privileges did not create copyright for them, who had requested and obtained those, but protected against infringements of existing, at least supposedly existing, copyright, and were always granted subject to the rights of third parties, so that even vested privilege expired in case it became apparent that the right to copy existed with another; that this understanding of the privileges referred to still finds confirmation in art. 1 of the Official Publication of the State Administration of the Batavian Republic, codified 3 June 1803, wherein is said: "That from now on no Privileges or Patents will be granted by public authority etc. (because) everyone, without any special law to his benefit, is entitled to the protection of his rightful property;"
that therefore, in agreement with this, the decree of the Provincial Administration of Holland of 8 Dec. 1796, which, until the just mentioned general regulation of 3 June 1803, was in effect in that province, and under which "the Poetry-loving collections" have been published at Hofhout, -- in art. 1, implicitly recognizes the existence of copyright separate from privileges or patents, and, generally abolishing the regime of Privileges or Patents in the province of Holland, therefore also for authors, who, publishing at their own expense, used to be able to obtain privileges, pursuant to Notice of the States of Holland and West-Freesia of 9 Jan. 1686, -- regulates this right only with respect to booksellers, and binds reservation thereof to conditions, from which follows: that the legislator of 1796 accept implicitly and unconditionally the copyright of the author as existing per se;
that, according to these considerations, the copyright of the actual poems rested, as is the case for every original literary fruit, with the author, in casu the poet Tollens, and that this right only could be lost to its owner by lawful transference thereof to another, since the formalities, neglect whereof, according to art. 5 of the aforementioned decree, caused the copyright to be cancelled, have been written only for the bookseller, owner of the copyright, but not for the author;
that of such a transference, whatever may have become apparent regarding later poems, with regard to the here present at least, hide nor hair has been seen at the proceedings, wherefore there exists no ground to, as demanded by the defence, suspend the criminal proceedings, pursuant to art. 6 of the Criminal Code; but that, on the contrary, aside from the assurance from the now deceased author in his will, and the statement of the witnesses Tollens and Suringar in judicio, the latter of which on this point have to be, by necessity, de auditu, the preface of the "Poetry-loving collections" referred to, which the author has written himself and undersigned with his initials, convincingly demonstrates that not the bookseller Hofhout, but the poet Tollens was the publisher of those poems;
that this fact, in connection with the righteous manner, in which the author, in later editions of his works, has publically appointed some of the poems contained in the "Poetry-loving collections" (see, BEETS, Varieties etc., 1st volume, Haarlem, Erven Bohn, 1858, p 35 and following), -- leaves no doubt that the aforementioned copyright always remained with its author, and now, as a result of his death in the latter part of 1856, with his heirs, transferred according to the Act of 25 Jan. 1817 (Bulletin of Acts, Orders and Decrees No. 5.);
that therefore the app., from the aforementioned poetry book, entitled "Poetry-loving collections" etc., of which the poet H. Tollens Cz., as author, owned the copyright, has copied several poems in the aforementioned volume published in print and sold by him, notwithstanding that he was aware that he did not own the copyright of that work, and therefore dolo malo, by which action he is guilty of unlawful piracy;
that this crime under art. 4 of the just mentioned act of 25 Jan. 1817, among other is threatened with payment of the value of two thousand copies of the pirated book, to be calculated according to the booksellers' price;
that the judgment a quo, on grounds of this stipulation, has set the value of the two thousand copies, to be satisfied by the app., at NLG 19,060, however, that this amount, on account of the unlawful piracy only having been shown with respect to the "Poetry-loving collections", published by Hofhout in 1802, has to be reduced to a lower number;
that the list of names of books, published by van Cleef in Amsterdam and the Hague in 1832, sets the price of the "Poetry-loving collections" at NLG 2.20; that, according to the witnesses Mulder, heard before the court, this is the price for private persons, of which at most a discount of 24 per cent and another 5 per cent extra have to be deducted to get to the booksellers' price;
that therefore 29 per cent == 64 cents, deducted from NLG 2.20, brings the booksellers' price of the "Poetry-loving collections" to NLG 1.56, and the cumulative value of two thousand copies to NLG 3120;
Considering in respect of the claim of the sworn third party applicant:
that, under art. 231 of the Criminal Code, the Criminal Court, in exceptional cases, is competent to take note of the civil proceedings to the compensation of damages suffered on account of infringement, if the injured party limits its claim for compensation to NLG 150 or less, and therefore limits the improvement of material disadvantage within these confines;
that publication of a criminal conviction is a res inaestimabilis, apparently to obtain compensation for pecuniary damage: wherefore the claim of the injured party falls outside the jurisdiction of the Court;
On aforesaid grounds, joining with the decision of the judgment, which has been appealed, except: 1. inasmuch as the app. has been declared guilty of pirating all the poems included in the volume published by him, and thus also those that he, according to the above, had copied in good faith; 2. the value of the two thousand copies, to be satisfied by the app., has thereby been set at NLG
19 060, and 3. the injured part has been denied its claim; therefore amending this conviction on these points, however, for the rest upholding it:
Acquits P.M. van Cleef of piracy of the just mentioned poems;
Sets the value of the two thousand copies of the "Poetry-loving collections" etc. referred to, published in Rotterdam by J. Hofhour and Son, calculated according to the booksellers' price, at a sum of NLG 3120;
Therefore fines the app. the amount of NLG 300 for the benefit of the common poor of the municipality Hilversum;
Seizes all the unsold copies of the piracy hitherto available in this Kingdom to the benefit of the owner of the original print;
Furthermore orders him to pay a sum of NLG 3120 to this owner;
Finally orders him to pay the costs of the proceedings, incurred in both instances for the benefit of the State, as the fine, recoverable by constraint;
Declares itself incompetent to take note of the claim of the plaintiff claiming damages; and
Orders it to pay the costs also caused at the appeal by its joining the action.
(Pleaded by Master Aug. Philips)
[...]
Translation by: Miluska Kooij