Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: f_1861
Commentary on the Court of Cassation's decision of 8 August, 1861, on telegraphic news
Frédéric Rideau
Faculty of Law, University of Poitiers, France
Please cite as:
Rideau, F. (2008) ‘Commentary on the Court of Cassation on telegraphic news (1861)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
1. Full Title
2. Abstract
3. The insignificant literary form of the telegraphic news transmitted by Havas to the Journal du Peuple
4. The "categorical" exclusion of telegraphic news by the Court of Cassation
5. References
1. Full title
Havas, Bullier & Co. v. Gounouilhou, Court of Cassation, 8 August 1861
2. Abstract
On 8 August, 1861, the Court of Cassation decided, as a matter of principle, that telegraphic cable-messages (dépêches) which "brought to the attention of the public political, scientific or literary news" should not benefit from the protection of the law of 1793. In this respect the Court confirmed the judgment on appeal of 22 April, 1861, which, moreover, significantly linked this exclusion to a high subjective threshold of protection: namely, that the work had to bear the "imprint of its author's personality". Thus, the format of a telegraphic cable-message was, because of its nature, considered on the one hand to be incapable of revealing any creative subjectivity on the part of the author, and, on the other, its value was seen as secondary in comparison to that of the information being distributed.
3. The insignificant literary form of the telegraphic news transmitted by Havas to the Journal du Peuple
Following the advent of the industrial revolution, news agencies like those of Havas, Wolff, or Reuter, started to spring up in the first half of the nineteenth century.[1] Specializing in the communication of news reports, they quickly made sure to exploit the new transmission technologies that were at their disposal from the end of the 1830s, in particular, the electric telegraph invented by Samuel Morse. These agencies would transmit to the editorial offices of newspapers subscribed to them news dispatches about the country in which their main offices were located, as well as about other European countries.
The details of the case we are considering here are as follows: the Havas news agency counted among its subscribers a newspaper from Bordeaux called the Journal du Peuple. One of its local rivals, La Gironde, decided to publish verbatim the cable-messages and news reports transmitted by Agence Havas to its client. Havas and Bullier instituted legal proceedings to have this reproduction of their cable-messages forbidden and to obtain indemnification for the financial loss suffered as a result of their publication. With regard to literary property, the question which had to be decided was whether telegrams (dépêches) could be considered to constitute a product of the intellect, in the sense of the Copyright Act of 19-24 July, 1793. It is worth recalling that the latter secured the protection of writings "of any kind", and that under this category the law decreed that the fruits of genius, as well as of more modest works such as compilations, could constitute the object of a right of exclusivity. At any rate, it had been required ever since 1814 that the conceptions and intellectual work carried out by the author and expressed in his production should be ‘proper' (propre) to him.[2] Following these rather flexible criteria, certain types of works associated with the press and, in particular, newspaper articles were in theory subject to the application of the 1793 Act if they satisfied these requirements. In fact, the Court of Paris had already decided on 25 November, 1836, that a newspaper constituted a literary property which was "made up of either news articles, or political and literary articles; [and] that the former, by their very nature and given that they just announced facts which were more or less public knowledge in France and in foreign countries, belonged to the public domain; [whereas] the latter, given that they were the result of intellectual work and that having them written, edited, and published usually entailed significant expenses for the [owners of the] newspapers, did constitute a private property..."[3]
Although the question of the protection of information had thus been clarified in the spirit of the 1793 law by distinguishing between simple news pieces (articles nouvelles) and articles whose form did testify to a personal input of labour on the part of the journalist, the fact that information could now be distributed via telegraph made it nevertheless seem like something new "by reason of the very nature of the object being contested in this law-suit".[4] On 12 June, 1851, the Commercial Court of the Seine had already specified that a simple news report, transmitted by telegraph and simply posted up in public areas (affichée), did not constitute a property.[5] But the question was not settled yet, and in the Havas case, the first judges of the Commercial Court of Bordeaux decided in January 1861 to apply the 1793 legislation to the cable-message (dépêche) which Agence Havas had "elaborated" and communicated by telegraph to the Journal du Peuple. Even though the "news of an event" might certainly fall into the public domain, this elaboration, which ‘elevated' the piece of news beyond the mere status of an incorporeal thing without an ‘owner', manifested itself as an object of property by its form, "no matter how little literary value this form might possess."[6] In reality, even if this editing had little "literary value" as such - something that was not necessarily incompatible with the application of the 1793 Act - the presence of those features of "effort" (industrie) and "intelligence" which qualified a work for legal protection nevertheless seemed to extend to the entirety of the processes of communicating the information, namely to the elaboration of the news report in the form of a cable-message, as well as to the means of its swift and exclusive transmission. Indeed, "novelty" of the telegraphic news, a fundamental criterion finally admitted by the judges in a highly competitive market, stemmed in other words from an expertise (savoir-faire) which was very much peculiar to Havas.[7] Overall, the existence of a literary form which qualified for the protection of the 1793 Act was consequently lost in the whole demonstration, rendering its reference by the court even more enigmatic.[8]
Gustave Gounouilhou, the owner of La Gironde, who was the defendant in this case, maintained in his turn that these cable-messages did not constitute the property of Agence Havas until the moment of their publication. After he lodged an appeal, the Court of Bordeaux revisited these contradictory arguments about the principles of literary property in a second ruling on 22 April, 1861. The Court now referred to the Paris case of 1836, and, aligning itself radically against the decision of the court of first instance, it stressed the point that the work had to carry "in some way the imprint of the personality" of its creator. This expression, which pointed forward significantly to future developments in literary property discourse, would be used again in the following year, with regard to photography in a case that was heard before the Court of Cassation (f_1862), reflecting the judges' intention to define more precisely the subjective, peculiar, contribution on the part of the author in his work. Yet after having recalled the principle of a personal literary form in its highest subjective standards, the judges of appeal refused to grant to the news reports transmitted by Agence Havas to the Journal du Peuple the character of a work of the mind, in the sense of the 1793 legislation. Moreover, it seemed effectively - although the court was not explicit on this point - that the need for rapid distribution of the news, especially by means of telegraphy, rendered the cable-messages unsuitable per se to qualify for a property right. In other words, it was the rapid access of the reader to these news dispatches which constituted their essential value, and not the author's personality: "because here the form is not important at all", and so it did not matter either whether or not it was reproduced.[9] In fact, the argument of the value of the piece of news in itself, as opposed to its form, was thus used by the judges of appeal, albeit in order to arrive at the opposite conclusion. The Court of Appeal of Bordeaux also rejected the application to this case of Article 1382 of the Code Civil, regarding the general principle of civil responsibility.
The reasoning of the appeal (pourvoi) in the cassation of Havas and Bullier v. Gounouilhou was based again, significantly, on a very broad application of Article 1 of the 1793 Act, namely, that the creation in this case derived as much from the 'essence' (fond) - the work and investment expended in order to convey the information as quickly as possible - as from the form. The latter, however, was seen as consisting mainly of an expertise, a savoir-faire which was peculiar to the press agency's very mode of operation.
4. The "categorical" exclusion of telegraphic news by the Court of Cassation
The Court of Cassation, in its decision of 8 August, 1861, rejected the arguments of Havas and Bullier. In addition to the absence of an identifiable damage to the press agency, it was established that telegraphic cable-messages could not be considered as works of the mind.[10] The Court of Cassation's laconic formulation was no doubt meant to reflect the obviousness of a general principle. Indeed, no explanation was advanced by the judges to specify the reason of this radical exclusion from copyright protection: was it because the form here was always essentially determined by the need to transmit the cable-message, or by the need to use Morse code, and therefore incapable as such of revealing in the work, to use the phrase from the verdict confirmed by the court of appeal, "an imprint of the author's personality"?
At any rate, the decision of the supreme judges was clearly misunderstood by some major commentators. Pouillet, for example, reiterated the principle that newspaper articles deserved protection as long as they constituted a genuine "creation".[11] Couhin was astonished by the formulation of the Court of Cassation's decision and by the categorical exclusion from literary property protection thus established:
"The last section of the Court's judgement seems to justify the solution which it proclaims. It is indeed beyond question that 'from the moment a news report has been published in the press, everyone has the right to use it for his own profit, to repeat it and comment on it; that this right belongs to journalists and to others...' [‘and to anybody else' is the actual phrasing of the judgement - FR]. From this point of view, therefore, one cannot but approve of the Court's judgement. But that is not so for the first argument invoked by it. To say that many, or even the majority of cable-messages which bring political, scientific or literary news to the attention of the public, cannot be regarded as works of the mind falling under the protection of the 1793 Act, that is one thing. But to indiscriminately attribute this character to all telegraphic cable-messages of the same genre - that is something which our reason can scarcely reconcile itself with. To realize the spuriousness of such a formulation, it suffices to look around oneself with a bit of attention. For a certain number of years French and foreign newspapers have been commissioning news reports, sent to them via telegraph, which are more or less elaborate and original, and which incontestably display the character of works protected by the 1793 Act, and to which all the jurisprudential points which we have just reported apply... [in particular, the Paris case of 1836, referred to above - FR]".[12]
The judges of first instance had referred to the damages caused "to respectable interests", meaning those of private individuals, that is, of the directors and staff of Agence Havas, as well as those of the public in seeing this new type of firm prosper, and decided that the profitability of its business had to be secured by legally protecting its monopoly. The same public interest of efficient news distribution was, so it seems, also taken into account by the Court of Cassation, but in their view it was to be guaranteed by different means, namely by the liberty of all to make use of this information. In fact, the principle was upheld to such a degree that the form given to the information by its telegraphic transmission, something that was taken to be quite secondary, could have been reproduced verbatim in the newspaper La Gironde.
Although it is understandable why in the opinion of the Court of Cassation the "telegraphic style" could hardly reveal any element of creativity, and even less so "the imprint of the author's personality", it is nevertheless worth pointing out that in areas in which more individual interests were essentially at stake, other ‘works' without significant literary value, in which the form scarcely counted for more than the effort and investments expended by their authors, were not denied protection by such a categorical formulation. It is in this sense that Couhin seemed to lament how the threshold criterion of creativity was not being applied consistently. Pouillet, in the last 1908 edition of his treatise, just recalled the principle that "a telegraphic cable-message, which has no other purpose and effect than to make known to the public a piece of news, and given that it lacks a form which would endow it with the character of a personal creation, cannot be compared to a literary work: once it has been handed over to the public, it belongs wholly to the latter, and the journalist [who cabled it] cannot retain one single iota of it."[13]
5. References
Couhin, C., La propriété industrielle, artistique et littéraire, vol. 2 (Paris: Librairie de la société du recueil général des lois et arrêts, 1898)
Mathien, M. and C. Conso, Les agences de presse internationales (Paris: Puf, 1997)
Pouillet E., Traité théorique et pratique de la propriété littéraire et artistique et du droit de représentation, 2nd ed. (Paris: Imprimerie et librairie générale de jurisprudence, 1894)
[1] In the 1830s with regard to Charles-Louis Havas, who opened his Translation Bureau for Foreign Newspapers (Bureau de traduction des journaux étrangers), before changing his line of business in 1835 and setting up the ‘Agency for political news - General correspondence' (Agence des feuilles politiques - Correspondance générale), subsequently renamed to Agence Havas. On the impact of Havas on the organization of the press in France, and the first uses of the Morse Telegraph (as well as the intuition of Reuter, in particular, in exploiting this novel communication technology), see M. Mathien and C. Conso, Les agences de presse internationales (Paris: Puf, 1997), 26-41.
[2] This problem had presented itself clearly with regard to compilations and their protection in accordance with the law of 1793 (see f_1793, and f_1814). The merits of these writings "of all kinds" was, as a consequence, not taken into account by the jurisprudence: see, for example, C. Couhin, La propriété industrielle, artistique et littéraire, vol. 2 (Paris: Librairie de la société du recueil général des lois et arrêts, 1898), 376-78.
[3] Judgement reported by Couhin, 389 and also by E. Pouillet, Traité théorique et pratique de la propriété littéraire et artistique et du droit de représentation, 2nd ed. (Paris: Imprimerie et librairie générale de jurisprudence, 1894), 59. ["composée soit d'articles nouvelles, soit d'articles politiques et de littérature ; - que les premiers, par leur nature, et lorsqu'ils ne contiennent que l'annonce de faits plus ou moins publics en France et en pays étranger, appartiennent au domaine public ; - que les seconds, qui sont l'œuvre de l'esprit et dont la rédaction est pour les journaux l'objet d'une dépense souvent considérable, forment une propriété privée..."].
[4] (f_1861_im_001_0002). ["à raison de la nature même de l'objet en litige"]
[5] Pouillet, 59-60.
[6] (f_1861_im_001_0002). ["quelque peu de valeur littéraire que cette forme puisse avoir"]
[7] Ibid. : "Qu'il est certain que telle est la nature de la dépêche télégraphique, qui n'a de valeur que par sa nouveauté".
[8] In fact, the whole demonstration retained at the same time the application of a general tort principle, based on Article 1382 of the Code Civil: "any loss caused to a person through the behaviour of another must be repaired by the person whose fault it was that the loss occurred". ["Tout fait quelconque de l'homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé, à le réparer"].
[9] (f_1861_im_001_0003). ["puisqu'ici, la forme n'est d'aucune importance"] In this case the form had actually been reproduced.
[10] (f_1861_im_001_0003): "Considering that telegraphic cable-messages (dépêches), which bring to the knowledge of the public, political, scientific or literary news, cannot be considered as works of the mind and placed under the safeguards of the law of 19 July 1793 ; -". ["Attendu que les dépêches télégraphiques portant à la connaissance du public des nouvelles politiques, scientifiques ou littéraires, ne peuvent être considérées comme des œuvres de l'esprit et placées sous la garanties de la loi du 19 juillet 1793"]
[11] Pouillet, 59.
[12] Couhin, 391-92. ["La dernière partie de l'arrêt qui précède semble justifier la solution qu'il consacre. Il est certain, d'ailleurs, que 'du moment qu'une nouvelle a été publiée par la voie de la presse, chacun a le droit d'en faire son profit, de la répéter et de la commenter; que ce droit appartient au journaliste comme aux autres ...' ["comme à tous autres" dans l'arrêt - FR]. A ce point de vue encore, l'arrêt ne peut donc qu'être approuvé. Mais il en est tout autrement du premier motif de l'arrêt. Qu'on dise que beaucoup, ou même que la plupart des dépêches télégraphiques, qui portant à la connaissance du public des nouvelles politiques, scientifiques ou littéraires, ne peuvent être considérées comme des œuvres de l'esprit placées sous la loi de 1793, soit. Mais qu'on attribue ce caractère à toutes les dépêches télégraphiques du même genre, indistinctement, c'est ce que notre raison ne saurait admettre. Pour sentir la fausseté d'une formule aussi absolue, il suffit de regarder autour de soi avec quelque attention. Depuis un certain nombre d'années, des journaux français et étrangers se font adresser, par la voie télégraphique, des articles-nouvelles plus ou moins étendus, plus ou moins originaux, qui offrent incontestablement le caractère des écrits protégés par la loi de 1793 et auxquels s'applique de tous points la jurisprudence que nous venons de rapporter...[notamment la jurisprudence de 1836, évoquée plus haut]"].
[13] E. Pouillet, Traité théorique et pratique de la propriété littéraire et artistique et du droit de représentation, (Paris: Imprimerie et librairie générale de jurisprudence, 1908), 63. Pouillet adds that judicial conflicts dealing with telegraphic news, although not protected under the 1793 act, could however eventually be resolved on other juridical means, as civil responsibility and "unfair competition" grounds (concurrence déloyale). ["une dépêche télégraphique, qui n'a d'autre but et d'autre effet que de faire connaître au public une nouvelle, à défaut d'une forme qui lui donne le caractère d'une création personnelle, ne saurait être assimilée à une oeuvre littéraire ; une fois livrée au public, elle lui appartient tout entière, et le journaliste n'en peut rien retenir."]