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Thurneysen: On the Illicit Reprinting of Books, Basel (1738)

Source: Universitätsbibliothek Freie Universität Berlin 04.06.03.05

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Thurneysen: On the Illicit Reprinting of Books, Basel (1738), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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Chapter 1 Page 1


Inaugural Juristic Dissertation
de
Recusione Librorum
Furtiva

in German:
On the illicit
Reprinting of Books

which,
with the assistance of God,

and in accordance with the will and resolution
of the eminent and highly esteemed
Faculty of Law,

was, for the purpose of obtaining
the degree of Doctor of Civil and Canon Law,

publicly defended on 13 October 1738
by

Johann Rudolf Thurneisen,
of Basel.

_______________________________________________

BASEL

_______________________________________________

Printed by the brothers E. & J. R. Thurneisen.





Chapter 1 Page 2

It is to the highly esteemed, distinguished,
and eminent

Franciscus Christ,
LL. D.

the highly meritorious clerk
and legal adviser of his home town's council,

the notable scholar, the uncle
whom he reveres in his late father's stead,

and the most generous furtherer of his studies,



that the author wishes to dedicate and present this
first attempt of his in the field of
jurisprudence - however it may have turned
out - as a public token of his gratitude and
complete devotion.


JOH. RUDOLF THURNEISEN,
                        the author.


Chapter 1 Page 3

            There are two paths by which one can attain a knowledge of things as they are.
The first is if we ourselves look into the nature of things and their causes using just
our faculties of thought and mental reflection. The other method involves acquiring
something which lies outside us by allowing the guidance and instruction of others -
in particular, that provided by the sciences - to lead us, as it were by the hand, towards
a knowledge of things which have already been understood by many for a long time. The
first of these two paths is admittedly easier and leads quicker to the desired goal, but
apart from the maturity which only the years can give one, it demands both a particularly
fine intellect and a leisure which is free of all other obligations. These two conditions
are both met only in a very small number of people, and all the more so since the transience
of human life means that it is necessary anyway to [try to] reproduce in abbreviated form
the knowledge that one only really attains by this method. The second path is altogether
the more favourable because it promotes the development of the intellect by gradually
imparting that which it is necessary to know; and because it doesn't completely exclude the
intrusion of practical affairs into one's life, as long as one uses properly the periods of
rest in between. Most importantly, this second path is the more propitious because, no
matter how many difficulties and moments of frustration one may encounter in its course,
it will always allow one to make up for these entirely thanks to the richness and variety
of the world. This is what enables us to understand the teachings that have come down to us
from so many historical ages, as well as to comprehend a good deal of things which one
simply wouldn't be able to acquire knowledge of if one were merely to reflect on them on
one's own - it may be a question of specific facts but also of such things which it is
necessary to know for [elaborating] what one arrives at through independent reflection:
namely, such things as deeds, words, all kinds of useful and felicitous observations which
have been recorded in writing for posterity, etc. With good reason, we are therefore of the
opinion that there is nothing which contributes more to one's [intellectual] development
than the reading of books. Thomas Bartholin is quite right to say:* "Without books
God himself would be silent, Justice too would not be heard, Medicine would be paralysed,
and the Sciences would be struck dumb - everything would be surrendered to Cimmerian Darkness."
** . All the same, I am ready to grant that there have been people who were
extraordinarily learned without having to read books, as Cicero attests when he says the
following:*** "I admit that there have been many people of outstanding intellect and
exceptional virtue who lacked, however, any erudition whatsoever; that these qualities were
wholly innate to their character which was kindred to that of the gods; that they were
instinctively considerate; and whose worth was entirely inherent in them. I would, moreover,
add the following: that it is more frequent for someone without erudition to attain merit and
virtue thanks to his natural qualities, than for the most erudite person to do so without such
natural qualities." However, it is almost certain that such people would have made
even greater strides if they had combined the reading of books with the musings of their
intellect. For reading does have this wonderful effect of encouraging one to think and can,
as it were, point those who are seeking attentively to such things which lead to true
knowledge, but which might not have occurred to them otherwise. Nevertheless, that which is
pursued by means of the easier method we have described - namely, to get to the root of
things by [independent] reflection alone - has since time immemorial served as an incentive
to reasonable men

_________________________________


* In his Diss. de libr. legend. (1676) – [Thomas Bartholin, the Elder (1616-1680) was
Professor of Mathematics and Anatomy at Copenhagen University].

** Cf. Homer’s description of a land where the sun never shone, Odys. XI, 14

*** In his speech for Archias [“Pro Archia,” in which Cicero defended the poet’s
claim to Roman citizenship].




Chapter 1 Page 4

to concentrate all their faculties of mind on devising all kinds of inventions so as to
offset the difficulties inherent in any passing down of knowledge. It is for this reason
that writing was originally invented - subsequently, the foremost minds devoted their
intellectual energy to the composition of books, thereby coming to the aid of the memory
and intellect of others who were not yet experienced and versed in such things. Although
this endeavour of the scholars was indeed worthy of the highest praise, its application
as a suitable means for acquiring knowledge was nonetheless fraught with great difficulties.
For it was of course impossible that one single manuscript could ever be sufficient for
all who desired to read it. Because of this, it was only by the exclusion of the majority
that a few fortunate readers could reap this fruit of knowledge. Therefore, in order to
remove this obstacle, those who were concerned with these matters eventually realised
that they could satisfy a large number of readers at the same time by having their books
assiduously copied. However, in return for their diligent work they demanded a certain
salary or price, and it was from this that the bookselling or book-copying profession
gradually emerged.
            Now, there are some who distinguish between book-copyists (Librarii) and book-
sellers (Bibliopolae) by using the first term to refer only to those who devoted their
efforts to the copying of books, and the second (as the name itself implies) to describe
those who sold books to others. Nevertheless, it is a fact that the Ancients generally
tended to use the Latin term in place of the Greek one, without seeking to make any
distinction between the two. The reason for this was evidently that the people who were
engaged in the copying of books were also those who actually sold them: it was just that
the designation "Librarius" (that is, "book-copyist") was more frequently used. It is
hardly possible now to ascertain when the "Bibliopolae" were still considered a separate
profession, distinct to that of the "Librarii." The following terms are regularly
encountered in the works of the earliest Greek authors: βιβλιοπώλης [book-seller],
βιβλιοκάπηλος [book-trader], κάπηλος των βιβλιων [dealer in books].*
            The "Librarii" of the Romans could be either private or public employees. The
former tended to be slaves who would draw up letters and any other texts for their
masters - Cicero refers to this when he says** "I beseech you to send me a
Librarius as soon as possible - preferably a Greek - since it would save me a lot of
work if he could copy my notes (hypomnemata) for me."***
            However, since the "Librarii" whom they [the Roman patricians] had in their
service often didn't understand anything else about the manuscripts other than that they
were to be copied, this would later give rise to those complaints by scholars who
consulted and looked up passages in the old manuscripts about the hastiness, carelessness,
and ignorance of the "Librarii" - complaints which were already aired by Martial****
in his time, as the following verses testify:

      If, dear reader, many a sentence on these pages
      Seems incomprehensible to you or grammatically dubious,
      The fault is not mine - it is rather the Librarius
      Who made a mess of things when in a rush he copied my verses for you.

_______________________________

* See: Christian Schoettgen, De Librariis et Bibliopolis Antiquorum, Leipzig 1710.

** Ad Tironem, Epistuale ad familiares, book 16, 21.

*** See also Law no. 92 de Regulis Juris (Dig. L, 17), as well as Laurentius
Pignorius (1571-1631), De Servis et eorum apud veteres ministeriis, pp.113, 114.

**** Epigrammata 8, book 2.


Chapter 1 Page 5

            Public "Librarii," on the other hand, were those employed to assist the authorities
in Rome and the provinces in copying laws,* official documents,** etc. Enough said of the
"Librarii" who were thus in effect the same as the "Bibliopolae," etc.*** In the literal sense
of the word, however, the latter term referred to those who both saw to it that books were
copied and sold the books which were on display in their shops. That is why the book-sellers
always had copyists at hand whose task it was to copy the books properly and accurately. It
is in this sense that Quintilian addresses the "Bibliopole" Tryphon as follows****: "If the
books are to reach people's hands with as few faults as possible, a lot will depend on your
reliability and meticulousness." However, to avoid slips of the stylus becoming an
eyesore for readers and to ensure that a faultless book was the final product, it had to be
read once again, either by the author himself or someone else, and compared with the original
text on which it was based. Martial^ says in this regard:

            "In the case of the seven works which we sent to you
            And which have been corrected with the stylus of their author,
            It is these corrections which make up their value."

It is nevertheless likely - if not certain - that most editors and authors of books actually
sold their works for an agreed price to the "Bibliopolae," who subsequently would carry on
trade with the writings of others. This much is implied by the following words of Martial:^^

            "You ask, o Quintus, that I send you our works as a gift;
            It is not I who has them, though, but the bibliopole Tryphon."

And similarly:^^^

            "All the confusion that this slight booklet of epigrams has provoked
            Is due to the four coins which you spent to buy it.
            Four is too much - it could just as well cost two,
            And the bibliopole Tryphon would still make a profit from it."

That it wasn't just in Rome where you could find "Bibliopolae," but also in the provinces -
as early as during the reign of Trajan - may be seen from Pliny the Younger's 11th Epistle,
Book 9. So the booksellers could up to a certain point satisfy those who wished to acquire or
read the writings of scholars. But, of course, this was not sufficient to still the spiritual
hunger of those numerous people who were eager for knowledge. For it took a lot of time and
effort to copy a long book, and that is why the number of books in circulation was very
limited and the price for them often very high.^^^^ Such was, in fact, the situation on the
book-market until about the middle of the 15th century.


_________________________________________________

* See Cicero vs. Rullus 2, 13.

** The same author: Pro P. Sulla Oratio, ch.15.

*** See: Joh. Wower (1574-1612). Tract. de Polymathia, ch.6, §15.

**** Marc. Fabius Quintilianus in his letter to him, Institutio oratoria, Foreword.

^ Epigrammata 1, book 10.

^^ Book 4, Epigr. 72.

^^^ Book 13, Epigr. 3.

^^^^ Diogenes Laertios (3rd century AD), in the 3rd book of his work “On the Lives and Views
of the Famous Philosophers,” observed that Plato had bought three books by Pythagoras for
100 minae, that is, for approximately 2250 florins.



Chapter 1 Page 6

Given that our ancestors had to endure such difficulties, their endeavour and zeal in
cultivating all the branches of the sciences deserve all the more praise. And this
appears even more admirable when we take into account that as a consequence of the
ravages arising from the constant misery of warfare and the scarcity of food and other
essential provisions, almost the whole earthly sphere had been submerged in an ignorance
which bordered on barbarism. It was in order to remove these obstacles that various
intelligent men, who were deeply troubled by this state of affairs, felt called upon
to devise new means by which the works of scholars could be acquired with less effort,
in less time, in a greater quantity, and for a lower price - and, fortunately, in
accordance with Divine Providence, this gave rise to the invention of typography.



FIRST SECTION.

On the Origin and Use of the Art of Printing, as well as on the need to regulate it
through certain Laws.

            That the art of printing - on which there is admittedly a wide range of
opinions - was invented some three hundred years ago, is a fact known to everyone,
except perhaps to those for whom the world of letters means nothing. Nevertheless,
there is considerable disagreement

1. regarding the year in which the art of printing was invented,
2. regarding the town in which it was first put to use, &
3. regarding the name of its inventor.

As far as the first of these points is concerned, it is very difficult to give a
specific year from which the age of printing can be said to have begun. One must,
in particular, be wary of confusing the moment in which this art was invented with
that in which it began to be applied and utilised commercially. In this context,
Maittaire,* has observed quite rightly: "The art of printing did not actually
come into existence at the same time everywhere; rather, it grew bit by bit, and
whilst it was developing in this gradual manner, it remained hidden from sight - like
an embryo, as it were - until a creature of such significance as to have required
many years for its birth, finally did come, fully-fledged, into the world. It took an
effort of this kind for the institution of printing to be founded."

            These caveats notwithstanding, we are inclined to adopt the view of those
who argue that around 1440 the art of printing had so far only been conceived of and
contemplated in the mind,** and that it was not until 1457 that it ripened fully,***
as it were, and was brought forth. For the various printed books that were sold before
this year can scarcely be ascribed to the art of typography. These works belong,
rather, to a completely different genre of art - namely, that of woodcut, which had
been known for a long time and was used very frequently. Works of this kind were
actually stamped from images carved into the surface of wood blocks, rather than from
movable printing-types. And this art isn't the same as book printing as such - it is
more properly described as woodcut [or woodblock printing],


_____________________________________________

* In his Annales Typographici, Introduction.

** See the same author, op. cit. p.1; as well as Bernhard Mallinkrot, Treatise “On the
Origin and Progress of the Art of Book Printing,” pp.8, 10, 13, 71, etc.

*** As Maittaire, ibid., argues.


Chapter 1 Page 7

which was known long before the invention of printing-types and as such was in use in
Siena, as Bernhard v. Mallinkrot* tells us. Now, there is no reason why one should
consider it necessary to trace back the date of the invention of typography from 1457
- when its products were first distributed - to some point earlier still than 1440. On
the contrary, one should not hesitate to express admiration for the fact that the art
of printing was taken to such perfection in so short a span of time, whereby - if one
takes into account what efforts it took just to manufacture the various implements that
are required for this art - one finds, with Besold,** that "it is not easy to
decide whether for all this speed and skilfulness [of the printing process], it is its
beauty which deserves the most admiration, or whether, on the contrary, its speed and
skilfulness are the most praiseworthy, in spite of all the beauty [of this art]."

            Having discussed the origins of this invention, we may now consider the
question of where and by whom it was invented. The glory of having invented the art of
printing was claimed for Koster***; for Mentel by Straßburg; and for Gutenberg by Mainz
- and each of these cities has produced historians and scholars, with whose reputation
and arguments it has sought to substantiate its claim over those of the others. In this
vexed question, however, I side with the view of those who adjudge the glory of this
invention to the city of Mainz and its masters Johannes Gutenberg, Johannes Fust, and
Peter Schöffer.****

            Daily experience testifies to the great benefit which this invention has
brought to scholarship and science:"It therefore often seems to me that of
everything that diligence has devised for people to make use of in their lives, nothing
is more valuable than the use of writing and no art can compare with the work created by
the printer. For what can give more happiness than the opportunity to converse with the
most eloquent and venerable of men as much as one wants to, and at the same time to
obtain no less insight into the spirit, customs, thoughts, studies, and actions of those
who lived so many years ago, precisely as if one had been in regular contact with them
for a long time."^
            The gist of this is expressed concisely in the well-known adage:

            "One day puts into print as much [text] as it is impossible to write
in a year,
            And in no time at all anyone can become erudite."

However, since no art or science - even the most useful - is safe from being spoilt
through misuse or perverted to the detriment of mankind, we find that this also applies
to the most valuable of them all - namely, to typography, on which Lipsius^^ remarks the
following: "The art of printing is certainly a good wet-nurse for studies, but
it is also brash and frequently intent on making [financial] profit, so it is rightly
considered no less a corrupter of books than their propagator."

      In order to ensure and preserve the greatest possible value from the art of printing,
one must therefore take particular care, on the one hand, to promote and identify all
those things that serve its propagation and improvement, and, on the other, to remove
those things which lead to its ruin or detriment. For this reason,


____________________________________________________

* Cf. Maittaire, Annales Typographici, p.2, ch.1.

** Christoph Besold (1577-1638), at the beginning of his book on Typograhpy, quoted in
[a later edition of] Jean Bodin (1530-1596), Method of Historiography.

*** The name by which Laurens Janszoon (c.1370-1440) was often called, since he was
sacristan (Koster) at Haarlem.

**** See Mallinkrot, op. cit. Ch. 8 & 9 at the end of these two chapters.

^ Erasmus in his foreword to Cicero’s Tusculan Disputations.

^^ Justus Lipsius (1547-1606), Preface for the Reader in Critica.

Chapter 1 Page 8

there is an obvious necessity for regulating this art through certain laws which support
honest printers but rein in, as it were, the dishonest ones, so that it is less easier
for these to carry out their deceitful practices.

            Now, there are various factors which lead to the ruin of the art of printing:
amongst these, the repeated publication of books known as reprinting and carried out by
those who have no right to do so, certainly occupies one of the first places. With my
modest faculties of mind I should like to try to deal with this subject. I will divide
this dissertation in such a way that first of all, legitimate reprinting will be discussed,
then illicit reprinting, as well as the arguments that are usually put forward in both
respects, and, finally, some means will be suggested by which this injustice might be
checked.



SECOND SECTION

De Licita Librorum Recusione (in German:
Vom erlaubten Bücher-Nachdruck
[On Authorised Reprinting]).

            By "recursores librorum" (in German: "Bücher-Nachdrucker" [book reprinters]) we
mean those who reprint and bring out again an already published book, be it in their own
name and at their own expense, or in the name and at the expense of someone else. Now,
whether such a reprint is legally permitted or forbidden, depends on whether or not it is
carried out in violation of the right of others. In the first instance, we consider such a
reprint as completely illicit; in the latter, as licit.

            Selling books and wishing to obtain a certain profit for oneself in this way, is
as such a legitimate occupation and an honourable aim. Both the justness of natural right
and the interests of human society, as well as the nature of commercial trading, permit
this. However, seeking in this regard to avail oneself of means which harm our neighbours,
is as much a disgraceful as an illicit mode of action. If we are asked, then, to give
examples of such books which may be reprinted legitimately, we can list various categories.
In particular, the following apply:

            1. It is permissible to reprint such books which have been published in far-away
countries with which our booksellers have no commercial relations - for example, books
published in Spain, Russia, Sweden, England, etc. For a reprint in this case does not harm
anyone.
            2. It is legitimate to reprint such books which, although they were once published
by someone else, are no longer available in saleable copies, and which the original publisher
does not intend, or is perhaps not able to reprint himself. It may then be better for the
book to be reprinted by another [publisher] than to deprive the reading public of a work
which has proved to be particularly useful, especially if the original publisher is in no
position at all to take legal action for the damages caused to him by this reprint [i.e.
because he is already dead].
            3. According to the "jus [lex] talionis" [principle of retaliation], reprinting
is legitimate in the case of books from such countries which lack any mutual commercial
relations or, more generally, which haven't entered into the type of mutual conventions
and agreements that are considered under the aspect of "jus concordatus" [treaty law]. /



Chapter 1 Page 9

Thus, for example, as is well known, in accordance with long-established custom, or,
rather, a tacit agreement, no reprinting of books takes place between members of the
Holy Roman Empire and the Swiss. In contrast, the Dutch and the French, who do not
abide by any such agreement with the Germans and the Swiss, have no such qualms and
readily reprint the books of both the one and the other nation. As a result, because
of the principle of retaliation, both the Germans and the Swiss do the same to books
from the former two countries, since nothing is fairer than that someone also does
to others what he would have them do to him, and vice versa.

            4. It is also permissible to reprint such books which, through regular
usage and the passing of a considerable period of time, have become common property
to such an extent that their true owner has, as it were, been forgotten: for example,
classical authors, the Bible, etc. However, it should be emphasised that only the
text or the wording of such books may be reprinted legitimately, but not any of the
commentaries or notes, say, which someone has contributed to the text, quite possible
at his own expense. Therefore, it is unlawful if someone reproduces on the title page
of his reprint of such a book the name of any scholar whom the first publisher may
have engaged and paid to revise the text of the original publication, and whose name
he may well have incorporated into the title or the heading, in order to make the
book more attractive for students and scholars alike. Finally, if

            5. the [original] publisher had set an exorbitant price for a useful, or
even indispensable, book and had accordingly been ordered by his sovereign ruler,
acting at the request of his subjects, to sell the book for a lower and fairer price,
but had ultimately refused to do so, then I am of the opinion that the sovereign
ruler - be it as the result of a petition presented to him by his subjects, or "ex
officio" - may very well transfer to someone else the right to [re]print that book
and offer it for sale at a suitable price, without this entitling the original
publisher to file a charge for having supposedly suffered an injustice.* For if
this [intervention by a higher authority] were not to happen or were forbidden,
then one would have good reason to fear that the divine gift, so to speak, of the
art of printing might be completely abused of, giving rise to more harm than benefit
for all. Certainly, if the price of printed books were [allowed] to exceed that of
handwritten ones, the art of typography would not be doing any service at all to
the public weal.

            Of course, in this context it is only natural to ask what can be described
as a 'just profit' in the sale of books? Since, after all, everyone wants to sell
as profitably as possible! The whole question, in fact, turns on the rules of
prudence which are prescribed for each transaction and on the seller's sense of
fairness, as well as, of course, on the expenses which the publication of the book
has cost him and on the extent to which he may or may not reckon with the book
selling quickly. It is after taking all this into account that the seller decides
on the price of his book, just as the buyer, on the other hand, considers how
much the book would cost him and what means he disposes of, and, finally, makes a
judgement as to whether the benefit or pleasure which reading it would give to him
actually matched the price he would have to pay for it.


____________________________________________

* See Joh. Heinr. Berger, Electa Disceptationum Forensium, 1706, p.1099.


Chapter 1 Page 10

From this it follows that the price cannot just be determined according to the number of
pages and proof-sheets. Now, it is a question whether one may also conclude from this
that the sovereign ruler ought to establish a specific and fair price for each book which
the seller would not be allowed to exceed? Surely the answer is yes! What is more, we not
only affirm that this is downright essential, but that it would almost certainly be very
useful, since it would keep in check those booksellers who try to fix excessive prices
for their books.


THIRD SECTION.

De Illicita Librorum Recusione (in German:
Vom unerlaubten Bücher-Nachdruck
[On illicit Reprinting]).

            From the preceding section's discussion of those cases in which it is legitimate
to reprint the books of others, it becomes fully evident whom one should regard as an
illicit reprinter - namely, someone who reprints such books for which he has no right of
reprinting and who therefore harms others by his reprint copies.

            Books are written by scholars with the intention that a certain gain will spring
from them, both for themselves and for others. Nowadays, there aren't that many who write
and seek to publish books just for their own glory.

            However, no one surely will call in question that what scholars have attained
by employing their faculty of reflection or what they have compiled and systematised over
many night-hours of zealous work, is their property, to which they are entitled by right.
They may therefore dispose of it as they wish. The best way in which these scholars can
attain the goal to which they are striving is if they themselves put their work to print
and sell it, or if they at least attend to its publication and distribution. For if they
publish and sell the book themselves, no one has the right to get in the way of this sale
process by putting a reprint into circulation, since this right [of publishing and selling
their work], as was explained a few lines above, is the property of the scholars; and it
is this very right of ownership which empowers them fully to prevent others from making
the same use of it. But since, as a result of various impediments, scholars would scarcely
be able to print their works themselves (or oversee their printing), publish or sell them,
they tend to fall back on the help of those whose profession it is either to print books
themselves or to arrange for these to be printed at their own expense and then take care
of selling them: the so-called "Editores" (in German: "Verleger" - publishers). Scholars
offer them their works for a certain price - or, rather, a fee* - upon payment of which
the publishers acquire these works. This involves not only the transfer of ownership of
a corporeal object, but the complete cession of any right which he who is the author of
the book once had to it. In the case of incorporeal things, a cession of this kind takes
the place of [the act of] transfer.** It is through such a contract that booksellers
legitimately acquire the work of a scholar.


___________________________________________

* Cf. Law no.1, § 5, Dig. “de extraord. cognit.”

** See Chr. Lenz (d.1650), Tract. de actionibus & nominibus cessis, ch.3, n.17.


Chapter 1 Page 11

Thus, by means of this legitimate and permissible contract, they obtain a duly acquired
and irrevocable right. They then take pains to ensure that they are the only ones
authorised to print the manuscripts they have acquired and to sell the printed books -
in effect, as the legitimate returns of all that they had laid out - always to the
exclusion of everyone else, including both foreigners and compatriots, and even of the
authors from whom they had bought the manuscripts for an agreed price. They may,
therefore - to put it clearly once and for all - dispose of these as they see fit and
please, as long as they do not violate the interests of the public weal and of the sciences.

            Just as it is the publisher who has to bear the loss alone if a book printed
at his expense fails to be sold - either through some fault of the author, or for some
other reason - so, on the other hand, it is only fair that, if the printed book,
received to great acclaim by all, yields treasures for its owner (as Horace says) or is
sold for a high price, the profit accrues to him alone, and that no one can take away
from him the slightest part of it. "For it is in accordance with Nature that
the profit gained from a thing accrues to the person who bears any eventual loss that
this thing may give rise to."* Therefore, if someone else other than the person
who has bought a book from a scholar in manuscript form and who was also the first to
print it, reprints this book, then it is beyond doubt that he is doing something
forbidden by the law, or, to call a spade a spade, that he is committing theft,** for he
is deceitfully possessing himself of something that belongs to another, in order to make
a profit out of it. In such a matter, both divine and human law, as well as the principles
of political wisdom, all concur with one another.

            The obligations which natural right calls upon everyone to observe regarding
the possession of things, are derived from the essence of how one should relate to one's
fellow human beings - that is, with both self-respect and love for one's neighbours.
Consequently, these obligations recognise both the interests of the owner and the
security and support which all persons are obliged to give each other with respect to
property. The aforesaid obligations give everyone the right to utilise their property
as a source from which to provide for their upkeep and the essentials of life: that is,
the right to make sensible use of their possessions and to bar others from this use.

            Amongst the various kinds of secondary obligations, it is above all the
following which are most relevant to this right: the obligation not to disturb anyone
in the peaceful possession of his property, to take nothing away from him by force or
cunning, to cause no hindrance or damage to the owner of a thing when he is making use
of it, etc. Disregard for these obligations is the source of all evils and wrongs in
civic society and, at the same time, a sure sign of an unjust, profit-greedy, and
rapacious manner of thinking. Cicero has expressed this most convincingly when he
argues that:*** "To take away something from another person and to increase
one's own advantage to the detriment of someone else, is more contrary to Nature than
death, poverty, pain, and everything else which can befall our body or any external
objects as such. For this destroys from the ground up all human relations and society.
Moreover, if we were so minded that each of us, for the sake of his own profit, were
to rob or injure his neighbour, the unavoidable consequence would be that that social
order [i.e. the republic] which is most adequate to human nature, would collapse."


________________________________________________

* Cf. Law no.10, Dig. de Regulis Juris (book 50, 17).

** § 1 Inst. de Obl. Quae ex del. nasc. (book 4, 1).

*** Cicero, de Officiis, book 3, ch.5.



Chapter 1 Page 12

            Thus, insofar as the illicit reprinter of books disregards such obligations with respect
to his fellow men, because by printing and selling books whose right of vending someone else had
acquired legitimately and with settled contracts for himself alone, the reprinter unlawfully
encroaches on a legitimate owner's possession of a thing and on the rights attached to this,
misappropriates his property and makes use of what belongs to someone else without the owner's
consent - what ground can there be for not asserting that from the aforementioned circumstances it
follows that such a reprinting of books as we have described it is illicit according to natural right
and therefore an act of theft?

            Revealed - or positive - divine right concurs fully with natural right in this matter,
as it does in everything else too, since, after all, both were brought into being by the same Creator,
which means that one can never contradict the other. Therefore, to ascertain what God's will is, one
need not look further than to common sense by itself and a judicious consideration of the means which
serve the preservation and furtherance of a peaceful and conscientious social order, always keeping
this ultimate goal in mind. This reflection of ours on God's will is confirmed by what He Himself has
explicitly and most clearly said - namely, in the Eighth Commandment: "Thou shalt not steal!"
Now, as it happens, the theologians also concur unanimously* that a theft is also committed when someone
inflicts a loss on his neighbour, or acts in such a way that his neighbour suffers a loss to something
that belongs to him, or if he fails to avert a loss from his neighbour that it was in his power to
prevent. In this sense it is clear that those book reprinters we have described strive after nothing
else other than to inflict a loss on their fellow men and in this way to encroach on their rightful
property, which is essentially a theft, as we have seen, not to speak of the Tenth Commandment which
forbids any coveting of another's property. I cannot advocate this view properly without adding the
following observation by Ahasver Fritsch:** "If even pagans have found it unjust and intolerable
to enrich themselves at the expense of someone else, how could it not seem infamous and reprehensible
to Christians? For this reason, the booksellers and printers who are so profit-greedy in this way
may rest assured that if they follow such a course, they will be deriving for themselves not so
much profit and approval as condemnation and harm."
            That, furthermore, the type of book reprinting we are dealing with in this section is also
forbidden according to civil law, follows first of all from the fact that the civil laws are founded
on natural justness - that is, on the unshakeable principles of natural right.
            From the most well-known fundamental precepts or prescriptions of civil law which have
been borrowed from natural right, I shall quote just one maxim in order to support my view - it is
the following: "Render to every man his due."*** For if each person really is to be
allowed to have what is his own, it will also be mandatory "that we keep our hands off what
isn't ours, that is, that we don't touch or infringe on the things that belong to someone else;
that we allow everyone to

________________________________________

* See, in particular, Luther’s Large Catechism, fol.194-196. Cf. also Arnold Mengering (1596-1647),
Scrutinium Conscientiae, book 1, ch.11, quaestio no. 139.

** Ahasuerus Fritsch (1626-1701), Tractatus de Typographis, Bibliopolis, Chartariis et Bibliopegis,
Jena 1675, ch.5, n.10.

*** § 3 Inst. de Justitia et Jure (I, 1).


Chapter 1 Page 13

use their things as they wish; that we return any property belonging to someone else which
might happen to be in our hands," as the highly renowned Vinnius* excellently describes
this legal prescription.
            The civil laws therefore forbid one to enrich oneself by causing detriment to someone else.**
Now, that this alone is the aim of unauthorised reprinters - namely, to enrich themselves at the
expense of another - was already explained above, so this is therefore sufficient proof that the
type of reprinting we are dealing with in this section is also forbidden according to civil law.
Furthermore, it will be found that according to the same set of laws such reprinting must be described
as theft. This follows from the "Lex prima" [First Law], in the last folios of the section "de furtis"
[On Theft] in [Justinian's] Digesta (XLVII, 2, 1, 4), where the jurist Paulus gives
the following definition of theft: "Theft is the deceitful appropriation of a thing with
the intent of making profit from it - be it from the thing as such, or from its use or its possession
- an action which, according to natural right, it is forbidden to tolerate." From this
definition by Paulus, we may note that a theft isn't just the taking away of a corporeal or movable
thing, but also the disregarding of the right which someone has to a thing. By this is meant above all
a type of theft which is called "theft of use" [Gebrauchsdiebstahl]. Such a theft of use is committed
when someone, although he may not have [physically] taken away a thing belonging to another,
nevertheless uses that thing to derive profit from it, against the will of its owner and for a purpose
different to that which had been allowed by the latter. The following words of Paulus*** are
applicable to the facts of such a case: "He who uses another's thing against the will of the
owner, is committing a theft."
            Consequently, the book reprinter's claim that he had, after all, been in possession of the
copy of the book which he had arranged to reprint - in other words, that he had rightfully acquired
it from its true owner - proves to be contrary to the law. For to what purpose, I would ask this
reprinter, had the owner sold the book to him, if not to that, that the buyer use the book productively -
whether by reading it, or by reselling it if that is his business, or in any other permissible way -
but certainly not with the intention of granting him at the same time the right to reprint the book
and thereby to make an illegal profit. Thus, if a reprint takes place without the consent of the owner
and involves the book being used by such a reprinter for a purpose other than that which the owner
has granted him, what doubt can there be that such a reprint amounts to a theft according to civil law?

            All we have left to do is to demonstrate in a few sentences that the type of reprinting we
are dealing with in this section runs counter to the public weal and therefore also to [the principles
of] political science. This will become clearer if we take into account that State policy is concerned
with directing and regulating both its own measures and those of others to ensure that public safety
and, in particular, the welfare of all [citizens] is maintained.**** Now, the State has a vested
interest in having learned citizens as well as experienced and educated men. But if, in order to attain
this purpose, the reading of good books is essential - as we have already mentioned - and yet the
production or compilation of useful books in the form of such a furtive edition is to be prevented,


___________________________________________

* Arnold Vinnius (1588-1657) in his famous Commentarius on Justinian’s Institutes (1642), with the
title “de Justitia et Jure” (I, 1), § 3.

** Law no. 206, Dig. de Regulis Juris (book 50, 17).

*** Paulus, Law no. 40, Dig. de furtis (book 47, 2).

**** Samuel v. Pufendorf (1632-1694), De Jure Naturae et Gentium (1672), Book 1, ch.2, § 4,
opening remarks.


Chapter 1 Page 14

nothing surely stands in the way of concluding from the correlation of these prerequisites
- of which the one necessarily follows from the other - that the reprinting of books, which
so hinders their production and public distribution by honest means, also runs counter to
the public weal. For the latter demands that we establish a mode of life amongst people
through which their communal interrelations are beneficial to [individual] human happiness
and, above all, to the civic society in which we live; and that all which reflects true
morality is realised.*
            Moreover, we can very easily prove that it is quite correct to say that the type
of reprinting which we are discussing in this third section hinders the circulation of valuable
books amongst the population [of a State]: all we have to do to prove this is take into account
that nowadays books (as has already been said) are written and published by scholars not just
with the intention of increasing their own fame or doing something for the good of society and
their science, but also so that they may reap the fruit of their efforts and gain some profit.
The author of a book therefore will seek to sell his work to the bookseller for a just price
and will not otherwise allow it to enter public circulation. The bookseller, for his part,
may well praise the author's work if it is well written, but, in view of the risk he will be
incurring, he won't be able to pay the author a high price for it, since the expenses made in
acquiring the book would very soon be lost to him [i.e. cease to repay themselves] if, shortly
after the edition whose publication he has himself arranged has come off the press, someone
else furtively reprints the same book and is thereby able to sell it for a lower price, given
that he had been spared all those costs which the original printer had had to run up in order
to fulfil his obligations with regard to the author of the book. As a result, any honest
publisher, who, being content with a modest profit, strives to further the interests of
scholarship, will in future be deterred from acquiring for publication the work of even the
most learned author, unless, perhaps, he could do so for an extremely low price. But if the
intellectual efforts of scholars are remunerated so poorly, there will soon be no one amongst
them who would be prepared to write books that serve the common good of society and the sciences;
or, if there is still someone around who commits his thoughts to paper, he will consider them
too precious to give them away to a bookseller for a low price. On the contrary, he will prefer
to - as has unfortunately often been the case and still happens daily - keep them within his
own four walls or just allow his pupils, relatives, and friends to read them, which means that
the majority of the academic community will have to forgo the benefits that they might otherwise
have derived from them. In this manner, many outstanding thoughts and ideas arrived at by
scholars moulder away and vanish without trace, which certainly represents quite a significant
loss for science and thus also for the public weal. On the other hand, it is the convenience of
being able to purchase, for a fair price, books which have been ably and well written in order
to acquaint [general] readers with the sciences and arts or simply to provide them with useful
information, that stimulates and induces many in the first place to make the effort of acquiring
this scientific and general knowledge - something which they might otherwise be less inclined
to do because of all the drudgery involved [in studying at a university]. From all this, we may
conclude that the reprinting of others' books also runs counter to a salutary polity.


_________________________________________

* See: Johann Heinrich Winckler (1703-1770), Institutiones Philsophiae Wolffianae, utriusque
contemplativae et activae usibus academicis accomodatae, Leipzig 1735, Part 4 (De Politic.),
§ 2932f.


Chapter 1 Page 15


FOURTH SECTION

Against the observations which have been advanced so far - on the basis of both Divine
and human right - to prove that the reprinting of another's books is forbidden, the
following arguments are usually put forward, which we will try to emphatically refute,
generally and in detail.

            1. The first argument which the opponents of our point of view try to adduce
in defence of theirs, is as follows: they like to claim that the reprinting of books is
in the interest of society, since the reprinters sell their books for a lower price than
the original printers. Thanks to this, they argue, useful books, which were very difficult
to get hold of before, can be circulated to the public in large quantities, giving even
the poorest the chance to build up a library of their own - something which otherwise only
the rich would be able to afford. They, moreover, reproach the original printers for their
tremendous unfairness in selling their books so expensively. In contrast to this, they
bestow the highest praises on their own labours, since, in deference to Christian moral
teaching - so they claim - they, instead, are selling the same books in a much fairer
manner, for a just and reasonable price. If one takes this reasoning at face value, it
seems to have a ring of truth about it; however, if one considers it carefully and
pertinently, it reveals itself most clearly as a fallacious argument. Illicit reprinters
of books affect generosity at the expense of others, and if they expect to be praised for
this supposed generosity of theirs, it is exactly as if one were to pride oneself on one's
generosity with the property of others. They really do apply their sickles to a harvest that
doesn't belong to them! So it is no surprise that they can sell their books for a much
lower price than the true and legitimate owner of the book, since their respective expenses
(as we have already explained in detail) are so disparate. Rightful printers pay a sum of
money to the author for his work and have to lay out more money in order to procure the
paper and letters for printing the work, without being sure all along whether the book they
are planning to bring out will actually stand the scrutiny of the academic community. For
"Habent sua fata libelli!!" [Latin proverb: "Books too have a life of their
own!" lit. "have their own fates!"] An illicit reprinter, in contrast, runs up no
expenditure other than the printing costs and is able to print without incurring any risk for
himself, as long as he doesn't pick the book he's going to reprint unlawfully at random, but,
rather, makes sure to choose one that has already been received favourably by scholars. On
the other hand, if the rightful publisher suffers a loss because of a book that meets with
less approval - something that happens not infrequently - it seems only fair and just that he
should try to make up for it elsewhere, by selling another book in his publishing catalogue
for a slightly higher price. Thus, if one were to compare such a consideration of the risk
which a respectable bookseller is willing to incur, both for his own sake and for that of
the public weal, with the reduction in price by which an illegal reprinter purports to benefit
the State, an honest and reputable judge would certainly come to the conclusion that the
price which the illegitimate reprinter sets for the book he is selling can by no means be
regarded as fairer in any way. And what is the reasoning behind this? Well, it is as follows:
a thief can sell the wares he has appropriated by larceny for a lower price than the honest
vendor - ergo, theft is permitted! Or, similarly: pirates, say, the Tunisians sell wares
cheaper than the Venetians, from whom they have stolen those very wares by force - ergo,
plundering expeditions by pirates are to be considered permissible! There can thus be no
doubt that a low price cannot bolster in any way the case for an illegal reprint.



Chapter 1 Page 16

            In reality, illicit reprinting causes more harm than benefit to the literary world,
for the reason, namely, that - as we have already explained - the reprinter is to blame if
henceforth the works of scholars are no longer published with the same ease as they could be, were
it not for the misgivings which deceitful reprinting awakens amongst the legitimate printers.
            Our opponents also claim that thanks to reprinting books come into the hands of the
population which until then had been unknown to most people and were very difficult to get hold
of, but this is a very weak argument with which to defend their opinion. For if the reprinters
were really concerned solely with the public weal, they could either purchase other useful books
from the authors and concentrate on publishing those, or they could incur the risk of printing
such books which, although printed once already, have become very rare and hard to come by, and
for which there is no longer any owner who might decide to reprint them himself. However, instead
of that, they, disregarding the public weal for the sake of making an immediate profit, prefer to
reprint such books which entail as little a risk for them as possible. That is, by means of unlawful
deceit and to the detriment of the true owners, they prefer to reprint such books from which they
can expect a guaranteed profit, especially as these have already met the approval of public opinion.


            2. The dishonest reprinters further plead, in defence of their point of view, that no
one can acquire an unqualified right to publish any book to the exclusion of everyone else, since
books, by virtue of being brought out for the people at large, thereby become, as it were, common
property. Nevertheless, even if we were to concede that they had become common property, would it
really follow from this that from then on anyone is entitled to reprint them? Everyone certainly
has the right to buy, read, or sell books, as the case may be, but he does not have the right to
reprint them. For the book which I have legitimately acquired from its author and which I have had
printed at my own expense, belongs to me inclusive of all the yield and profit which I may thereupon
derive from it for myself, exactly as when one has purchased a parcel of land together with all the
rights to enjoy for all time the returns it may yield. No one is entitled, on the basis of a
[supposedly] credible right, to take away from me or encroach on this property of mine by reprinting
without my consent. Our opponents' erroneous conclusion, however, that books are common property,
has its origins in that all too readily generalised notion that the market economy is free, and
consequently also the bookselling trade. From this they then conclude that, just as a merchant who
sees another merchant profitably selling certain commodities may well want to sell them himself
and accordingly set up shop with such wares too, so everyone is entitled to print any books, or
have them printed, and to sell them. However, just as a trader who obtains the goods of another
trader against the latter's will and in a fraudulent manner, and who carries on trade with them
nd makes a profit for himself, would deserve not the appellation of a "merchant", but that of a
"thief", so someone who carries on a business with the wares or books which another bookseller has
legitimately acquired for himself by reprinting them against the latter's will or that of the owner,
merits, according to the law, the appellation: "fraudulent publisher". For anyone is certainly
allowed to carry on the bookselling trade, but that this should entitle him to /


Chapter 1 Page 17

encroach on the right of someone who has a duly acquired and personal right
to print a book, and thereby to cause him to suffer losses - that we cannot agree
with. For this would mean that according to commercial law everyone is allowed to
appropriate the goods of any merchant and convert them to his own use against the
will of their owner: something that the highly renowned Gundling describes as a
"philosophia bovina" (in German: "Ochsenphilosophie" - lit. "ox-philosophy", meaning
an idiot's philosophy!).* However, I think that no one would want to extend the
right and freedom of trade to such a point, but it would certainly be the case if
we were to start advocating the opinion that the reprinting of books to the extent
claimed by our opponents is generally allowed according to the laws. Moreover, if
we were to permit this, then the dishonest reprinter would also have no legal claim
to redress from anyone who were to walk into his bookshop and steal a book, for
just as illegal that this would seem to him, so are the practices of dishonest
reprinters. Both cases, namely, have this in common: that in both someone is
misappropriating another's property in a fraudulent and illicit manner.

            3. Our opponents also invoke consuetude [or prescriptive right] and cite in
their defence the observation of a jurist, famous for his work in another field of
jurisprudence, who agrees with them:** "We make use of these customs and
continue living with them, because no one can be sure that a book won't be reprinted
by another, unless the book is protected by a privilege from the authorities, since
the force of this habit is very strong."
            Truly, I cannot cease to be astonished by the fact that an otherwise so famous
jurist employs this argument. For what kind of logic would there be in the following:
the English, the Dutch, the French, and various other, if not all, nations have for
a long time been committing something that is illegal - ergo, that makes it just and
fair?! How could this highly renowned man forget about the remark of the jurist Paulus
which states:*** "Something that is corrupt from the outset cannot improve with
the passage of time." Similarly, how could he fail to notice the following: "The force
of habit and long-standing usage is not so strong as to be able to assert itself over
reason or the law."**** How many other absurdities would this give rise to! Nowadays,
thefts, murders, fraud, adultery are all committed very frequently. There is - alas -
a very great licentiousness in such things: ergo, there is evidently nothing illicit
about them!
            There are still a few further considerations left which our opponents believe to
support their point of view. However, it is better if we do not examine these until the
following section, so as not to repeat ourselves.


______________________________________________

* Nic. Hieron. Gundling (1671-1729), in his “Juristic and Rational Memoir on the Infamous
Reprinting of Books Belonging to Others” (Halle 1726), § 13. (Cf. in this respect L. Gieseke,
op. cit., p.79, note no. 254).

** Joh. Peter v. Ludewig (1668-1743), Preface to “Reliquiae Manuscriptorum… ineditorum
adhuc”, vol. 1 (1720), § 42, pp.132ff. (Cf. in this respect L. Gieseke, op. cit., p.78,
note no. 252).

*** Law no. 29, Dig. de Regulis Juris (Book 50, 17).

**** Law no.2 in the Codex “quae sit longa Consuetudo”; final chapter X de Consuetudine;
ch. 8 X de sententiis.




Chapter 1 Page 18


FIFTH SECTION.

Containing the conclusion reached from the various questions
pertaining to this treatise.

            The books which dishonest reprinters use for their aims are either
privileged - that is, there is a special patent granted by the sovereign prince,
or the respective holder of a territory's sovereignty, according to which they
may not be reprinted by any subject for a certain period, on pain of a stipulated
punishment - or they are not privileged.
            Whether anyone is allowed to reprint privileged books during the period
for which the privilege is valid, is not a question worth asking, since even if
there were no other reason for answering it in the negative, this one reason would
be sufficient: namely, that it is an injustice to act contrary to the will of the
authorities.
            On the other hand, whether anyone is allowed to reprint non-privileged books,
is a question which is answered variously: by some, namely, in the affirmative, by
others in the negative. We subscribe to the second opinion - the righteous, fair,
and honourable one - and not without good reasons, as we have set forth above and
which we will proceed to discuss further.
            In the preceding section, we pointed out that there were some things left to
refute which our opponents tend to invoke [in their defence]. In this context, it
is appropriate to now consider this following argument of theirs:

            1. He who has a duly acquired right needs no privilege. Now, since book-
sellers purchase privileges for themselves at great expense, this implies - so our
opponents argue - that they didn't have, in the first place, a duly acquired right
to print a given book to the exclusion of others.* This, however, can be easily refuted.
            Privileges in themselves are not more necessary than civil laws against theft.
By nature everyone is conscious of the duty to let be what belongs to others. However,
since the wickedness of human beings is capable of severing even the strongest ties
of natural right, and for this reason many extraneous disturbances arise in human
society, it is necessary for the command of the authorities to take measures against
this fact. The incentive to apply for a privilege was, namely, no other than the
fraudulent presumption of dishonest reprinters. It was for this very reason that already
in his time Erasmus of Rotterdam, that highly illustrious man, gave the following
advice to his publisher Frobenius, the most esteemed printer of this [our] city [Basel]:**
"Most people", he said, "quite literally lie in ambush, just like conspirators,
in order to ruin that person who brings out a work which they recognise as readily
marketable. Soon someone or other will [re-]print a copy stolen from that person's
printing-office and sell it for a cheap price. In the mean time, though, Frobenius
will have spent a vast amount of money on the proof-readers, and frequently also on
[printing] the copies [of his edition, being unaware as yet that someone had already
beaten him to it] /


____________________________________________

* See the Preface of the celebrated v. Ludewig to his “Reliquiae Manuscriptorum…”,
vol. 1, § 42, p.132.

** We may deduce this from the letter which Erasmus wrote to Wilibald Pirckheimer,
who at the time – in 1522 – was at the court of the Emperor Charles V. [Cf. Letter
no. 1341, II 4-14 in P. S. Allen’s famous edition of Erasmus’s Correspondence].


Chapter 1 Page 19

This injustice could be easily curbed if there were an Imperial Edict, according
to which no one would be allowed to reprint a book printed by Frobenius or one that
contains a contribution from the author [i.e. Erasmus himself] for two years - this is not
too long a period. Frobenius's publishing house deserves such preferential treatment if it
were only for this reason that nothing improper or seditious is ever published by them."
            The acquisition of privileges therefore does not vest any new right in the legitimate
owner, rather it contributes to the preservation of the right which he has already acquired,
as we may appreciate especially clearly from the following ideas put forward by the highly
renowned Carpzov:* "When booksellers, at considerable expense to themselves, have
books printed, the expected proceeds of which may not allow them to recoup the costs and
make a net profit until after several years have passed - especially if the books don't
attract many buyers - their purses suffer will suffer a rather significant dent as a result
of this, and no one should certainly begrudge them for acting cautiously and trying to
protect themselves by means of a reliable privilege, so that someone else doesn't have the
same books reprinted, or so that foreign booksellers do not import such reprints for sale
in their own region."
            However, the fact that a legitimate owner of a book may not have received a
printing privilege does not give the slightest right to an illicit reprinter. For, as is
well-known, privileges are acquired for the purpose of speeding up the resolution of any
potential legal dispute. The privileged [printer] thereby effectively has a writ of execution
at hand against anyone who should seek to interfere with his undisturbed possession. That
person will not be able to evade punishment which, moreover, will turn out harsher for him
[than if there hadn't been a privilege]; the plaintiff can expect more effective support
and it isn't necessary [for the authorities] to initiate a special measure each time such
a case arises, in order to examine what matters to the privileged [printer], as well as to
sue for the damages he has suffered, or to submit the estimation of the latter to the
scrutiny of a judge.** Consequently, I come, in short, to the following conclusion: where
a right is confirmed, one must assume that the confirmed right already existed previously,
since there cannot be any confirmation at all of a non-existent right. Therefore if the
authorities, by granting a privilege, confirm someone's right to print a book to the
exclusion of others, that must necessarily mean that before the privilege was actually
conceded, that person already had a right to exclusively print the book.

            2. Sometimes the question is posed as to whether, seeing that privileges are
granted for a specific period, the right of privileged [printers] expires at the end of
this period or not? To this we reply that even after expiry of the privilege, the owner
of the book still retains forever his right to send it to press [again] on the basis of
the exclusive right which is derived from his ownership of the book, even if it may not
please the authorities to renew the privilege. For that right, to which the owner of the
book was already entitled previously, still continues to exist. Otherwise, we would have
the absurd conclusion - as we have already explained - that it is the privileges which in
the first place render to the owner his right. Besides, the revocation of a privilege is
only aimed at preventing a potential abuse.*** Experience shows, on the contrary, that -
where no abuse has taken place - after the due application has been made, privileges
which had been granted for a certain time are generally renewed and conceded for an even
longer period, which would surely not happen if the owner hadn't already possessed a real
right previously. This also sheds light /


______________________________________________

* Benedikt Carpzov (1595-1666), Jurisprudentia Ecclesiastica seu Consistorialis (1673),
Book 2, def. 414, n.1ff. (Cf. in this respect L. Gieseke, op. cit., p.47, note no. 163).

** See the “Reply” of the Leipzig Law Faculty in Joh. Heinr. Berger, Electa
Disceptationum Forensium, 1706, p.1099.

*** See Carpzov, ibid., def. 415, n. 12.



Chapter 1 Page 20

            3. on what one should reply to the following question: whether the right which
entitles the owner of a book to bar others from reprinting it deserves to be called a
"monopoly" or not? To us it appears more appropriate to answer this in the negative, and
namely for the following reasons: by monopolies one means such business dealings whereby
someone lays exclusive claim to a commercial right which had otherwise been available to
all.* This definition of monopolies in itself is sufficient to refute our opponents'
viewpoint: for who could wish to argue that the potentiality of printing a book - assuming
that someone has legitimately acquired for himself the sole right to print this book -
may be described as a generally available commercial right? It is beyond all doubt that
what belongs to someone is no longer subject to communal usage. Since it was explained
above that whoever acquires a book for himself by means of a legitimate claim and contract,
becomes its proprietor and owner, it follows from this that no one except him has a right
to this thing. Only then would the claim of a bookseller deserve to be called a monopoly,
if he alone were to try to print and sell all the books in the city in which he has his
business, and if he sought to bar others from this trade or from the right to print and
sell books - but nothing of the sort has been heard of so far.
            But let us just assume for argument's sake (without this meaning that we are
actually agreeing with it) that these actions of the bookseller do deserve to be described
as a monopoly - is it not, then, a fact of generally known legality that such monopolies,
if the public weal speaks in their favour, are allowed too?** Furthermore, that in our
case the public weal does demand this, is clear from the following observations by the
highly renowned Carpzov:*** "To the [economic] interests of the commonwealth,
which generally forbid monopolies, we oppose the justness derived from natural right
that does not tolerate someone maliciously inflicting damage on another, which would
certainly be the case if a bookseller who has paid out great expenses in order to print
a manuscript, with the hope of reaping at some point gain and profit for his efforts,
were to be defrauded of his prospects of success and thrown into unexpected poverty by
the action of another bookseller, the ultimate effect of which would be to condemn his
fellow citizens to a general lack of ideas and to accelerate the ruin of city and State
- something which must be prevented with all one's might, since it is most definitely
the public weal which is to be furthered in every possible way."

            4. We may also consider the question: can those who have procured a privilege
from the authorities for the book they have reprinted - but who, in fact, did so
illegally, obtaining this privilege surreptitiously and by swindling (as one has to call
it) - derive any use from their privilege? I answer this in the negative. For, first
of all, such people claim to have a legitimate precedence over those who haven't received
or solicited any privilege whatsoever for their book; yet, secondly, by means of the
privilege which they have obtained for themselves by tricks and swindling, they seek
to exclude from their [purported] prerogative those who possess an older privilege
for any given book. But if one takes a closer look at the matter, the injustice of
both assertions becomes evident.

            a) It follows from both natural right and public law that a privilege cannot
be granted to someone if it will cause another person to be harmed.**** No sovereign
prince has ever judged otherwise in this respect. /


________________________________________________

* Lüder Mencke (1658-1728), Theory and Practice of the Pandects, Book 18, Section 1,
§ 8, p.393.

** See: Johann Brunnemann (1606-1672), Commentary to the Codex, Section 59, Book 4,
n.5 “On Monopoly”.

*** In his Jurisprudentia Ecclesiastica seu Consistorialis (1673), Book 11, def. 414,
n. 9, 10, 11.

**** See: Joh. Balth. Wernher (1657-1732), Selectae Observationes Forenses, vol. 3,
tome 4, note 117, p.294.

Chapter 1 Page 21

For the princes are namely the "Patres Patriae" ["Fathers of the Fatherland"
= "Fathers of our country"]: they love all of their subjects and each one
individually in equal measure, and quite generally take care of furthering the
common benefit of their subjects, as well as maintaining an undisturbed social
order. This providence of theirs, however, which takes into account the welfare
of each and every subject in equal measure, does not permit them to concede
privileges and prerogatives through which the benefit of one subject would be
attained at the expense of another. Already in their time, the Emperors Theodosius
and Valens made their thoughts on the matter known by declaring:* "We
command that all rescripts [here: appeals] which are directed against established
law be quashed by all judges, unless they concern something that benefits the
petitioner, but causes no harm to another." From this all jurists who
feel themselves bound to fairness conclude that in every privilege the following
clause is tacitly contained: "it goes without saying that all the rights of
a third party are reserved."** Thus, privileges (as was already mentioned
above) are simply confirmations of rights which booksellers are entitled to with
respect to their books. Dishonest reprinters never had any right to these books
anyway before they reprinted them, so that is why no privilege can ever grant them
such a right.***

            b) As for the illicit reprinters' claim that their recently acquired
privilege surely protects them from any legal action on the part of the
legitimate printer, we say to this that such an argument will get them nowhere,
since it entails the preposterous insinuation that the authorities, who must
at any rate be considered the guardians of justice, have conceded the same right
to two different recipients, or that they were willing and able to do such a
thing.**** Nevertheless, daily experience shows that such privileges are
applied for and tend to be granted. And yet what [legal] force can they have,
given that when they are applied for, the true circumstances are fraudulently
concealed? With regard to the laws and decisions issued by the authorities
in any well-arranged commonwealth, the following demand by the Emperor Zeno
must be regarded as an underlying principle:^ "All rescripts - no
matter whether they are directed at the petitioners themselves, or whether
they are addressed to a judge - shall only be considered to be binding provided
that the applications of the petitioners are based on the truth." That
is why the most celebrated jurists concur that someone who has surreptitiously
and by swindling obtained the privilege to reprint the book of another, does
not have any precedence over the legitimate owner.^^ I am, of course, aware
that dishonest reprinters will self-servingly interpret the opinion of certain
scholars of jurisprudence who argue that the authorities, by virtue of their
sovereign power and the right of majesty, are entitled to grant the same
privilege to two or more persons, even if someone were to suffer a heavy loss
thereby. However, I think that these jurists attribute too much to the
authorities. For pious and wise princes or governments do not desire at all
that the limits of their power be extended excessively. And who would take it
upon himself to lay claim to such a power which thinks it can do away with both
divine and human laws? They [pious and wise rulers] do not want their laws to /


_____________________________________________

* Law no. 7 in the Codex “de Prec. Imp. offerend.” (I, 19, 7).

** See: Alexander Trentacinquius, Variae resolutiones practicae (1610), ch.7.

*** See above, Section 5, § 1.

**** See: A. Leyser (1683-1752), Meditationes ad Pandectas (1717ff.), vol. 1,
specim. X, thesis no. 11, p.114 [Cf. in this respect E. Landsberg, op. cit.,
vol. 1, pp.206ff.]

^ Law no. 7 in the Codex “de divers. rescript.” (I, 23, 7).

^^ See the Reply of the Leipzig Law Faculty in Joh. Heinr. Berger, Electa
Disceptationum Forensium.



Chapter 1 Page 22

annul the obligation which is always tied to the divine laws. On the contrary, they
know very well that the natural laws are the standard by which they too have to
accommodate their actions and laws. From the fact, though, that, perhaps for reasons
which only very rarely coincide, such a thing [as granting privileges to unlawful
reprinters] has been done once or twice by the authorities, no sane person can surely
conclude that because of such an exception to the rule, the latter has somehow become
obsolete, or that it might even be taken as a precedent.

            5. Another question which may present itself is whether a printing privilege
that the Emperor has granted to a bookseller can be rescinded by any of the sovereign
territories that form part of the Empire? We shall settle this question with the
following remarks by the highly renowned Stryk:* "I don't think that a printing
privilege granted by the Emperor can be annulled by any territory that belongs to the
Empire, unless this territory has reason to fear that its subjects will suffer a
disadvantage because of this privilege. For instance, if the subjects of a territory
require a certain book and are unable to obtain sufficient copies from the publisher
for a reasonable price, nothing can prevent their sovereign prince from allowing, in
the interests of this province, someone to send the book in question to press. For
if States are entitled to amend universally valid laws if the welfare of their subjects
demands it, then why shouldn't they be able to do so to the right of an individual
person? This warrant, however, must be restricted to the respective territory, so that,
if a copy were to be offered for sale anywhere else, the seller would be liable to
the punishments stated in the Imperial privilege."

            6. A further question to be considered is: supposing that someone wants
to reprint a book published by another, after having supplemented it significantly,
does the law, then, entitle him to reprint this book, be it privileged or not,
passing over the earlier publisher? In both cases [i.e. whether a privilege is extant
or not], the answer must be no, since, first of all, the supplement of the book
cannot be considered a new book, but, rather, as an accessory which accompanies the
main text; and, secondly, dishonest publishers could use this pretext to embellish
and justify all kinds of swindles.

            7. And how shall we settle the following question? Must the republic of
letters forgo very learned and extremely useful annotations and commentaries to a
book because of the selfishness or stubbornness of its first publisher? The answer
is that by no means is this so. For a scholar who writes commentaries and annotations
to a given book may very well offer them to the legitimate publisher for a reasonable
price, and at the same time inform him that, should he not want to acquire them, he
would go and sell them to another publisher. Accordingly, the legitimate publisher
must then resign himself to someone else acquiring and bringing out these commentaries
and annotations. In this respect, it must of course be noted that the author of the
supplementary sections can only sell the right to publish his supplements, but not
at the same time the right to publish the text or the tenor of the [original] book
together with his supplements. In this way, neither the publisher of the book's
text, nor the publisher of its supplements will suffer any losses, since many readers
will buy the supplements on account of the text [i.e. to understand it better], and
just as many will buy the text or the tenor on account of the supplements [i.e.
their interest in the main text having been awakened by the latter]. An exception,
however, must be made for such books which - even if they otherwise contain much
that is useful - are nevertheless so full of inaccuracies and the most blatant errors
that it is altogether in the interest of the republic of letters to reprint these
books after having emended and corrected them.


__________________________________________

* Samuel Stryk (1640-1710), Usus modernus pandectarum (1690), Book 1, vol.4 § 2,
p.25 [Cf. in this respect E. Landsberg, op. cit., vol. 1, pp.64ff., as well as
Kleinheyer-Schröder, op. cit., pp.275ff.]


Chapter 1 Page 23

            8. But what is one to say in reply to the argument that it is inconvenient for
scholars to have to read the texts and the supplements separately - an inconvenience which
could easily be avoided by printing both together, and that this would at the same time be
a means of attracting more buyers? That is, wouldn't it be possible, for the sake of the
scientific community and in view of the evident expediency of such a measure, to print the
[whole] work in a continuous format without thereby doing an injustice to the legitimate
publisher of the book? The answer is no. For the convenience of scholars and the [additional]
gain sought by a given publisher do not amount to a justification for infringing on the right
of the book's legitimate author. After all, we do not generally adapt any right to make it
suit the convenience of some and the [financial] gain of others. "Now, those who
judge everything by their profit and convenience, and who are unwilling to give precedence
to honesty, they tend, in their deliberations, to weigh virtue against what they think is
useful, and are usually not men of integrity."*

            9. A further relevant question arises at this point: if someone has the right to
reprint a valuable book and has already run up considerable expenses for this purpose, but
- either before he has publicly made known his intention, or after having done so and
perhaps even having started the reprinting - another person from the same region with the
same intention manages to come first [i.e. complete his reprint first], one is bound to ask:
on whose side does the law stand? Our reply is that in such cases there is a generally
established custom amongst book printers, according to which as soon as someone learns that
another is reprinting the same book in his office, he will ask that printer to tell him
how far he has got with the impression of the book, and he for his part will tell the other
printer how far he himself has got with the printing process. If both sides are thus
informed about the progress of each other's work, the one who has made less headway must
give way to the one who has got further. However, the one who continues printing must
indemnify the other for the printing costs which the latter had already incurred - namely,
by supplying him free of charge with a specific number of copies (the number being
proportionate to the expenses incurred by his colleague) once he has completed the print
run. However, it must be noted here that such a procedure is only applied if the expenses
on both sides were made bona fide - that is, if neither had known that the other was
engaged in printing the same book. For if - as is apparently often the case nowadays -
one of the two had incurred these expenses merely for the purpose of having a pretext to
assert a claim - as it were, on the basis of a rightful possession; that is, if the one
was aware that the other had announced his intention of printing the book or that he had
already started to do so, then the book printers can, on the basis of the prescriptive
right [right of consuetude] which I have already mentioned and with the support of the
authorities, force that person to desist from printing that book further and, as a
punishment for his offence, to have to bear all by himself the expenses he had incurred.
Otherwise, if this were not to happen, the way would be clear for fraud and malice, and
it would mean that someone could seek to improve his position through deceit or that,
by means of this deceitful usurpation, he could thwart the legitimate occupation of another,
who in good faith had invested his money and diligence in this enterprise. Of exactly the
same mindset are those people who, as Cicero says,** "destroy the social order
which the gods had established between /


____________________________________________

* See: Cicero, de Officiis, Books 3, 4, 18.

** See: Cicero, de Officiis, Book 3, 6, 28.


Chapter 1 Page 24

people - a community whose tightest connecting link is the notion that it is more
contrary to Nature to take something away from someone else for the sake of one's profit,
than to be prepared to suffer all kinds of misfortunes."
            However, if neither of two persons who have reprinted a given book was actually
aware that the other had already started printing the same book, and if both thus carry
through and complete the impression in good faith, then each of the book printers should
bear this with equanimity, just as they would other misfortunes.

            10. Lastly, it is precisely in our century that a new and very useful procedure
for encouraging the publication of good books has emerged in England. There, by means of
a contract which comes into certain effect between a publisher and the buyers [of his
books], the former is guaranteed, upon showing this same contract, an advance payment of
part of the [final] cost of the book to be published. In this case, one may ask whether,
given that thanks to this procedure the expenses are covered by the subscribers, and that
an increased profit is likely which is not to be sneezed at, the publisher does not in
fact lose his absolute ownership [of the book] subsequently and whether all [the subscribers]
become entitled to produce a copy of [i.e. to reprint] the book which is published thus,
since in this way [the publisher's] anxiety about any future losses or about any risk
incurred ceases entirely - for he is sufficiently protected by the money paid in advance
by the subscribers - and, consequently, whether such a publisher is not in fact entitled
to complain about any reprinting of his book that may take place? This question may be
answered in brief by admitting that, yes, thanks to this contract [the publisher's]
anxiety about future risks is removed; but from this one cannot infer anything to deny
that what had once been mine is mine forever, and that no one, except by becoming guilty
of theft, can take it away from me against my will. Truly, if the first publisher has once
acquired the ownership of a book, be it by purchase or by merely taking possession of it,
or by any other legitimate title, then this is in itself sufficient to bar everyone else
from using the same thing - as I think I have abundantly proved in the discussion above.
Add to this, that it is the very prospect of a re-edition which generally constitutes
the principal part of the profit that accrues to a publisher. For the sake of brevity,
however, I will pass over in silence other arguments which one could advance in defence
of the first publisher of any book whatsoever.


SIXTH SECTION.

On the remedies which can be used
against illicit reprinting

            That the crime of thievish reprinting goes beyond the bounds of justice, has
been proved sufficiently, I hope, by the arguments we have put forward. It would
therefore be desirable that the highest authorities concerned themselves with how they
might oppose effective remedies against this evil which is becoming worse daily. That
it is possible to come up with various /



Chapter 1 Page 25

things in this respect, that there can be no doubt of. In the following, I would like
to set forth some things which have occurred to me whilst thinking on the subject.

            1. It would be most useful of all to have a public censor - it should and
would have to be a scholar - appointed in every community state, e.g. in Germania [i.e.
the lands of the Holy Roman Empire and some German-speaking territories outside it],
in Saxony, in Switzerland, and in those territories which, in their mutual relations
(as was discussed in Section 2), apply treaty law or certain long-established tacit
agreements; and who would have a register in which the titles of already published books,
as well as the names of their legitimate publishers, would be listed and would subsequently
continue to be recorded whenever these publishers proceeded to bring out a new work.
In this way, for instance, if someone were to submit a book to this censor in order to
have it registered, the latter could immediately determine, by consulting his register,
whether someone else had the exclusive right to print or publish that book, so that
in certain circumstances he might well have to refuse the applicant his request. For
the censor to be able to add to his register all books which appear from day to day,
it would be necessary that anyone who would like to publish a new book announced this
in all states where such a Concordat were flourishing, so that the public censor
[in each of these states] would know about it.

            2. It would also benefit public interest if an inspection of the bookshops
[in a state] and a visitation of the printing-offices were from time to time carried
out by surprise, so as to have notice of those books which are imported into the state
from foreign parts. For it is often the case that various works which were published
secretly are imported into a state and that they are offered for sale in the shops
there - despite the fact that these are either works which offend against decorum or
which are sold in disregard of the right to which only their legitimate publishers
are entitled. Now, that the magistracy [of a state] cannot simply give official
permission for books of any kind to be imported just like that - exactly as with
any other articles of trade - is felicitously confirmed by Ahasuerus Fritsch.* It
would therefore be sensible to enact a law according to which, all copies [of a book]
which are imported as reprints into any of the territories which mutually observe
treaty right ["ius concordatus"] - as long as that book is already available for a
fair price in the territory in question - would fall to the public treasury.

            3. Illicit reprinting could also be prevented if - as has actually
happened once before here in Basel - the respectable and honest representatives of
the printing profession from those territories which have mutually come to terms in
observance of treaty right, as was mentioned above, and who nowadays generally tend
to be booksellers as well, were to exclude from their association those colleagues
of theirs who make available any of their printing-offices to a thievish reprinter.
We do not believe that such an exclusion, or at least the opportunity to bring
pressure to bear on one's colleagues, would clash with that well-known Imperial law
which forbids the inquisition and defamation of disobedient professional colleagues.**
["Inquisitio & diffamatio in immorigeros sodales Collegii" - in German: "das
Aufftreiben der Handwerksgesellen" - "the railing (or reviling) of fellow craftsmen"]


___________________________________________

* In his Tractatus de Bibliopolis, ch.2, § 4.

** See the Imperial civil regulation (“Polizei-Ordnung”) of 1548 “concerning the
sons of craftsmen” (“von Handwerks-Söhnen”), § 1 near the end, and the regulation
of 1577, title no.38, § 3, as well as the general edict (“Lands-Ordnung”) of the
Electorate of Saxony, entitled “Craftsmen” (1548), in which “the railing of
journeymen merely for the sake of chastisement is forbidden”.


Chapter 1 Page 26

This is also confirmed by the fact that such an exclusion and investigation is only
then forbidden when it takes place for no legitimate reason and merely by an arbitrary
decision on the part of colleagues who work in the same trade; but not so when it
ensues from a given treaty right and the statutes of the guild, and is in the best
interests of the public weal and the art of the handicraft in question. No injustice
whatsoever is committed if a craftsman, after having been admonished in a fitting
manner, is eventually excluded - be it by his own colleagues, or by the local
authorities - because he is guilty of not having marshalled his actions in accordance
with the regulations of the guild which he had joined, despite having sworn loyalty
and obedience to it. That members of a guild are authorised to issue statutes
concerning their craft, follows from Law no. 4 of the "Digesta de Collegiis et
Corporibus" ["Digest of Laws on Guilds and Corporations"] (XLVII, 22), which states
that: "Associates, that is, those who belong to the same guild - what the
Greeks call έταιρειαν [association] - are granted by law the competence to set
themselves regulations as they wish, as long as these do not spoil anything that is
enshrined in public law." Nevertheless, it is customary to request a confirmation
[for such an exclusion of a colleague] from the supreme (sovereign) authority of the
territory where this takes place.*

            4. In order to avert the damage which honest printers have reason to fear
from the illicit reprinting of books, the following expedient has also been found to
be quite effective: namely, publicly announcing one's intention to publish a certain
book, and, along with this, offering potential buyers the chance to make a so-called
prepayment in advance, under certain conditions, as was discussed in the preceding
section.

            Of course, there is no doubt that much more would still have to be thought
out in order to prevent the illicit reprinting of books. But since such a task would
require an extensive and leisurely treatment, which would force me to step out of
the bounds that I had drawn for myself in this dissertation, I therefore hand over
what remains to be investigated to those whose interest in the matter is even greater,
or who are better equipped than me in intellectual ability.


FINIS


____________________________________________

* Cf. in this respect David Mevius (1609-1670), Decisiones ad Pandectas, Part 3,
Decision no. 284.



Translation by: Luis Sundkvist

    

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