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Encyclopaedia Article on 'The Reprinting of Books', Leipzig and Halle (1740)

Source: Universitätsbibliothek Tübingen 34 A 398 [Reprint Edition of 1995]

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Encyclopaedia Article on 'The Reprinting of Books', Leipzig and Halle (1740), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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Chapter 1 Page 1





Great comprehensive
Universal
ENCYCLOPAEDIA
Of all the Sciences and Arts

[...]


With most gracious privileges granted by high potentates

_________________________________
Twentythird Volume, N-Net
_________________________________
Leipzig and Halle
Published by Johann Heinrich Zedler.
1740


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Reprinting of books is not really much better than a theft
carried out secretly and underhand. In general, it is carried
out only by those pseudo-publishers- or, rather, by mere
bunglers in the otherwise as noble as it is useful guild of
book publishers- who, driven in most cases by rampant
ambition or, rather, by a highly criminal greed for money,
venture to print and 'publish' (as they unwarrantedly assert
on the title-pages) such books as to which they have
neither rights nor permission, i.e. they undertake the
reprinting of works to which other publishers have full
rights. Now, the books which covetous reprinters make use
of may be either issued with a privilege or not. If the
rightful publishers have on their own received from
supreme persons the privilege to print a book and if, by
virtue of this grace which is accorded to them alone, others
are excluded from the same right, then it is pointless to ask
whether the reprinting of privileged books is permissible
for those who have not at all been issued with such
privileges. Even if there were no other ground on the basis
of which one could prove the wrongfulness of such
reprinting, acting against the explicit interdiction of those
whose mere will must be law for their subjects is quite
sufficient to constitute an act of obvious injustice. ¦


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And such brazen transgressors of supreme decrees have no
cause for complaining if their reprints are confiscated and
they themselves are also made to pay the fine stipulated in
the privilege. See Elector Johann George II's edict of 1661,
§.81, and also Johann George I's Rescript on the
intercalated reprinting of books issued with privileges in the
Codex Augusti, vol.1, p.410 (Carpzow in Jurispr. Consist.,
Book II, def.414). If, however, the rightful publishers have
no privileges for their works, it is not unreasonable to ask
whether the books they publish may be reprinted without
their consent by other publishers with right and a safe
conscience. This question is answered 'yes' by some, and
'no' by others, depending on whether their character is
honest or unsound. Those who say 'no' have the most
convincing arguments as well as the approval of divine and
human laws. Those who say 'yes', on the other hand, do so
on the basis of fallacious presumptions. One is therefore
compelled to agree with the former, since the truth of the
matter calls for an impartial judgement. It is all the easier,
then, to adequately refute the specious objections of the
latter. As for a thorough proof of this opinion, the
arguments which can be adduced in its favour depend on
the following circumstances. Books are written by scholars
with the intention not just of benefiting others but also of
earning, in return for their hard work, something towards
their daily subsistence. No one will deny that what these
writers' inventiveness has brought forth and their untiring
diligence has put into good order, belongs to them. If it is
their property then they are entitled to use it as a means of
subsistence as they wish and as they find suitable to achieve
this aim as conveniently as possible. Only they have the
right to use their work in this manner and to exclude others
from doing so. The most expedient way for them to achieve
this aim is to hand over their scholarly work for printing
and by means of this to let others own it in exchange for
money. If, let us assume, they carry this out at their own
expense, then no one is allowed to encroach by reprinting
on their free and rightful use of what belongs to them. For,
as we have already postulated, it is their property. This
property right gives them the complete power to exclude
others from using it in the same way. However, certain
circumstances do not allow them to personally take care of
the publication and sale of their book. They find themselves
compelled to ask for help from those whose profession it is
to publish books and trade in them. They offer them their
manuscripts in return for the payment of a reasonable price.
The latter thus acquire the scholar's work.
The consequence of this ¦


Chapter 1 Page 4

is not just the transfer of ownership of a physical object but at
the same time also the complete cession of all rights
associated with it which otherwise belong exclusively to the
work's author. As with non-physical objects, this cession
takes the place of conveyance [of property], in accordance
with the L fin. pr. ff. de donat. (see Lentz, de Action. &
Nomin., def. c.3, nr.17). Through such agreements and
contracts of sale book publishers become the proprietors of
scholarly works. By means of a licit and permissible
settlement (ex contractu licito & permisso) they acquire an
irrevocable right (jus quaesitum), as the scholars of
jurisprudence argue. They acquire the full right to
exclusively print the manuscripts they have purchased; to
constantly reprint and republish the resulting books, as the
means of their sustenance, with the exclusion of any other
publishers, be they countrymen or foreigners; and to make
use of and trade in them as they wish as long as it does not
run counter to the interests of society. Just as the book
publishers must bear the loss if the books they publish were
to lie on the shelves and become waste-paper, so they are
rightly entitled to the great profit which accrues to them
from good sales. Thus, it is clear that the right which a book
publisher has with regard to the printing and publication of
a work is based on settlements and contracts. The rights and
obligations which are acquired through contracts do not
extend further than to those who enter into them. Those
publishers who reprint books already published by others in
accordance with the right ceded to them (ex iure cesso) by
the author, have clearly not made any settlement at all.
Every right of ownership, however, is originally based on
such contracts. If these are left out, the title which is
necessary for the rightful acquisition of ownership (titulus
iustus) is also absent- i.e. the legitimate reason which
justifies the acquisition and ownership of an object
according to the laws (Böhmer, Introd. ad Ius Digest., Book
61). Where the approval of the law is absent no permission
can be given. It is therefore something utterly
impermissible, nay, even contrary to the law, to reprint
without authorisation the published books which belong,
even if not issued with privileges, to honest publishers and
to thereby maliciously encroach on that which belongs to
them by the Grace of God and by right. The arguments
which have been presented so far are based on principles
approved of by divine and human law. Thus, unauthorised
reprinting is an enterprise which runs contrary to divine and
human law. Everything that does not concord with these
laws is a crime. From this it follows irrefutably that
unauthorised reprinting is also a punishable crime.
Moreover, from what has been said above ¦


Chapter 1 Page 5

and by reference to natural, revealed, and civil rights it is
very easy to show that it is a manifest form of theft. First of
all, as far as natural law is concerned, it brings us to the
rights and obligations which people have in relation to
property. These emanate from the principle of sociability
which enjoins us to self-love and love of our fellow human
beings in equal measure. They are concerned partly with the
profit of the proprietor as such, and partly with the security
and assistance which everyone is obliged to give to others
with regard to property. The former entitle anyone to use
their property in order to take care of their own sustenance
and well-being in life, i.e. to use the things they own for
true personal benefit and to exclude others from making a
similar use of them. As for the latter, however, amongst the
various categories into which they fall, here we are above
all concerned with the obligation incumbent on everyone of
letting owners possess peacefully what is theirs, of not
stealing anything from them, neither by ruse nor violence,
of refraining from using and exploiting what belongs to
someone else without their knowledge and permission, of
not hindering others from using what is theirs, and also of
not acting to the detriment of this rightful usage by others
of their property. Disregard for these obligations is the
fount of all gross and subtle thieving. (August Friedrich
Müller's Introduction to the Philosophical Sciences, in
which natural and international laws [are discussed], ch.2,
§.12). Cicero gives the following very pertinent and
unmistakeable description of antisocial greed for profit
(Offic., iii.5): when someone steals something from another
person or tries to benefit from the loss and detriment of
others, this is more repulsive to Nature than death or
poverty or the most acute pain or, indeed, than any other
harm which can happen to a person's body and his
remaining, external, property. For such theft destroys all
human trust and sociability. For if we were to allow
ourselves to be led astray by unbridled desires to such an
extent that anyone could rob someone else or hurt him in
any other way merely for the sake of selfishness and
shameful greed for profit, this would quite clearly mean that
the knots of human society, which were originally tied by
peaceful and sociable Nature herself, would necessarily
have to be torn asunder again. It is quite obvious from this
that the concept of theft has to be made a bit wider than is
usually the case. It is not just the malicious taking away of
another's property which constitutes a theft. Depriving
others of, and appropriating for oneself by deceptive means,
their privileges, rights, and the use of their property, also
deserves this name. (Heinrich Bodinus, Explic. ¦


Chapter 1 Page 6

Praecept. Non facies furtum, §.7). Hopefully, the facts cited
above are sufficient to see why unauthorised reprinters must
be held guilty of theft. They encroach on honest publishers'
peaceful possession and use of their property and their
rights attached to the latter. They reprint books whose
publishing right had been acquired exclusively by others
through specific contracts. They then sell them cheaper than
the rightful publishers, and it is by this that they deprive
them of their legitimate profit. Thus, not only do they
disrupt honest publishers' legitimate use of the editions they
have produced- in fact they also cause them losses which
are quite substantial. For either the copies which the rightful
publishers have printed at great expense remain unsold on
the shelves, or they are forced to also sell them at a cheaper
price, thus preferring to sacrifice their profit for the
community than to give free play to unlawful reprinting. All
these are irrefutable arguments which show that the
unauthorised reprinting of books is a form of theft which
runs contrary to natural right. In this matter revealed divine
law is most definitely at one with natural law. They both
stem from a Creator who cannot be refuted. In the latter,
human reason, left to its own devices, infers the will of God
from His wise subordination of means and goals which
strive towards the establishment of an obliging and peaceful
society. In the former, human reason is convinced of this by
the most explicit words. It is here that we find a
commandment which says: "Thou shalt not steal", e.g.
Moses 20:15 and Moses 5: 19. How far the implications
and interpretation of this commandment extend, is made
clear by Luther's elucidation in the Longer Catechism,
fol.194 a, b, 196 a. And the praiseworthy Luther also has
his own observations to make about the divine punishment
which results without fail from the violation of this
commandment (op. cit. fol.194 b, 195 b). All this, though,
is summarised by St. Paul the Apostle in these few words (I
Thessal. 4:6): "It is the will of God that no man go beyond
and defraud his brother in any matter; because the Lord is
the avenger of all such." Now, what intention can
unauthorised reprinters of books have other than the
unchristian one of seeking their gain at the expense of
honest publishers, of robbing them of their rightful profit,
deceiving them by insidious tricks and sham legality and
thus unjustly appropriating their property for themselves?
Are they not therefore manifest transgressors of the seventh
commandment? Should they not suffer once the
punishments which they have rightly deserved because of
this transgression? If it is impossible for God to lie, if it is
indisputable that punishment must come after sin, then they
too must suffer the harsh word to come true which the
righteous Judge has pronounced more than once: "Cursed
be he that confirmeth not all the words of this law to do
them" (see e.g. Moses 27: 26, 28:15ff.). Luther, who in his
time, ¦


Chapter 1 Page 7

when publishing the Holy Bible also experienced the evil of
covetous reprinters, inveighed against it, as he was quite
right to, in his "Warning" about the Wittenberg edition of
the Bible with the following words: "Accursed avarice,
amongst all the other evils it causes, has also set about our
work in order to carry out its evil and harm therein, playing
this knavish trick on our printers whereby others are
instantly reprinting our translation and depriving us of our
work and expenses to their own profit, which is a downright
public robbery and will surely be punished by God and
which is unworthy of any honest Christian." (See also
Philander of Sittewald in Part 1 of his Works, p.374ff.) It
now remains to prove that the unauthorised reprinting of
books is a crime which also violates civil laws. The civil
laws are as such based on natural justness, that is, on
infallible principles of natural right. Of the three well-
known basic principles which the civil laws have adopted
from the latter, we need only cite the following one: "Give,
or leave to each person that which is his" (Suum cuique
tribue) (§.3.1 de Just. & Jur.). Therefore, if, according to
this principle, every person is to be given what is his by
right, it must also be left to him; the civil laws cannot, then,
allow or wish for it to be possible to get rich at the expense
of others' loss. It is from this very reasoning that the well-
known legal principle of Pomponius arose, namely, that it is
only natural and just that no one should get rich or make
profit from the losses of another (L. 14 de condict. indeb.,
l.206ff. de R. J.). That this is, of course, the main intention
of unauthorised reprinters needs no further demonstration,
as it has already been discussed sufficiently above. Thus, it
is also as good as proven that they are transgressors of the
civil laws. Just one thing remains to be figured out: whether
unauthorised reprinting is also to be regarded as theft
according to these laws? A careful juxtaposition of the
concepts which Roman law provides with regard to theft in
general makes it very easy to answer this question. The
ancient jurist Paulus (vol. 1, §.*, l.*ff. de furt.) talks of theft
as involving a deceitful and profit-greedy touching or
appropriation either of a thing itself or even just of its use
and possession, which is anyway forbidden to one by
natural right. From this description, as well as by reference
to a number of other cases which Paulus cites elsewhere
(e.g. in l.15ff.), one can see that it isn't just the taking away
of a physical and movable object which can be classified as
theft, but also the appropriation of the right which another
person has to a movable object. In particular, though, what
we are dealing with here ¦


Chapter 1 Page 8

is a class of theft which affects only the use and
exploitation of an object (furtum usus- see Böhmer, Introd.
in ius Digest., Book 47, *, §.8). This kind of theft is
committed when one uses something which one hasn’t been
given for such a use against the will of its owner and in the
intention of achieving some gain out of it (Böhmer I, c). It
is precisely this which applies to the following observation
of the aforementioned Paulus in l.40ff. of de furt.:
“Whoever uses another’s property against the will of the
owner is thereby committing theft.” Now, it is true that
publishers who reprint the books which have already been
printed by other publishers must first have had in their
hands some copies of the original print run. Indeed, it is
likely that they obtained them from the legitimate
publishers during, say, an exchange of stock. However, they
were sold to them merely for the purpose that they in their
turn might resell them at a reasonable price if clients should
happen to look for these books in their shops. This
definitely constitutes a legitimate use of such books, which
is supported by the consent of their publishers. However,
the latter will hardly have agreed or wish that others started
reprinting their books in pursuit of an unjust profit. And yet
this is done against their will and without their previous
knowledge. Thus, the books are used for a different purpose
to that for which they had been given, against the will of
their proprietor, and to satisfy a vain greed for profit. There
can therefore be no doubt that unauthorised reprinters are
thereby committing theft of a use (furtum usus). That a theft
of use of this kind should be punished like any other theft
can be seen clearly from the criminal court penal directive
of Emperor Karl V (art.170). It seems entirely fair that their
punishment should at least consist of confiscation of the
unauthorised reprinted copies (even if the original books
were not issued with privileges) and the levying of a
considerable fine from the unauthorised reprinters. This is
in accordance with, in particular, the Electoral Territories’
Local customs in juristic matters, §.81. This statute can be
applied not just to books issued with privileges but also to
those without, since the reason for the statute, namely, that
“the book sellers are driven into poverty by this [illicit
reprinting] and our lands suffer losses because of it”, is the
same for both types of book. That is why in the Helmstadt
decree- which is to be found in the appendix of a treatise
published in 1723 with the title “Detailed Report, in which
it is shown that the public book sales of nowadays are
greatly abused of”- in the lawsuit of Johann Melchior
Süstermann, who accused the publisher Johann Stephan
Geffen of having reprinted Scriver’s Reflections, the
defendant was condemned to a fine of thirty thaler for the
perpetrated offence. The ¦

Chapter 1 Page 9

Saxon code of common law, Book II, Art.22, when it
speaks of guile as having always to underlie a theft of use
according to Roman law, says explicitly: "But in this he
cannot accuse him of theft or robbery." However, the
German gloss for these words has refuted this objection as
follows: "This, however, would contradict the law, which
says that theft does not just occur through stealing, but also
in any deceitful handling of someone else's property if it is
done without and against the will of that person. That is
what matters. It may well be the case that a thing becomes
stolen without the person having it becoming a thief,
namely when he deserves to be hanged for it. However, a
person who commits such theft as is involved in the
deceitful and dishonest use of borrowed things, thereby
forfeits his honour." If, therefore, we assume that it is
impossible to demand the death penalty for an unauthorised
reprinter, at least it cannot be denied that because of his
illicit use of another's property he most certainly does
deserve to be called dishonourable. The other objections
which are raised against the main principle discussed above
are not very solid. Mr von Ludwig, in Praef. ad Reliqu.
MSC, vol.1, §.41, p.131, makes the following claim: Who
would dare to accuse the Dutch of theft because they reprint
so quickly the books which are published in England and,
especially, France, and by selling them cheaper than the
original publishers amass great fortunes? It may well be so
that no one has attempted to accuse them so far, but this
does not mean that one would not be entitled to do so.
Rights always remain rights, even if people arbitrarily
choose not to exercise them. Once a theft has occurred the
resulting imputation will always have a legal basis,
irrespective of whether one chooses to seek the protection
of the law or not. People are certainly at will to forgo a right
which is to their advantage. However, their decision does
not annul the right as such. The freedom of others to
exercise this right cannot be taken from them all the same.
Others make the objection that book reprinting cannot be
called theft because the legitimate author or publisher is not
entitled to reclamation of the object (rei vindicatio) from
the reprinters. This is what the editor of the Jena juristic
Memorandum concerning the permission of book reprinting
also argues (preface, p.6). One can concede this to them
without, however, surrendering one iota of the main principle.
Where there is only a theft of use, rather than a theft of a
physical object, the ownership of which would justify its
reclamation being demanded (rei vindicatio), it is not
necessary to present such a claim. ¦


Chapter 1 Page 10

It is sufficient that in this case an action can be brought
against such an offender for restitution of the damage
caused (Actio rei persecutoria, and ad id, quod interest).
That is why the already quoted Helmstadt decree also
states: "The accused is liable to repay the damage he has
caused the plaintiff if the latter can either produce relevant
figures before the trial or makes a declaration on oath."
Thus, the opinion that the reprinting of books not issued
with privileges is an illicit enterprise, nay, even an act of
theft which runs contrary to all laws, has so far been
sufficiently substantiated with convincing arguments.
Hopefully, these can count on the wholehearted approval of
all honest persons. And these sound arguments will almost
certainly also be sufficient to refute the sophisms with
which unauthorised reprinters try to embellish their
covetous enterprise. The principal sophism with which they
usually disguise their shameful greed and give it an aura of
saintliness is their alleged promotion of the glory of God.
The aim as such and in itself is a noble one. But the means
which unauthorised reprinters employ to achieve it quite
certainly nullify it. This becomes especially clear if one
applies here, as one must, a true notion of the glory of God.
To promote the glory of God means precisely to obey the
most perfect Being in everything, that is, to let the
subordination of aims and means which He has ordained
serve as the highest guiding-principle of one's life, and to
strive every day to bring one's actions into complete
harmony with this wise and just order. No action can be too
insignificant for a sensible person not to be obliged to have
this divine order in mind when carrying it out and to always
give preference to this order before his own desires. Those
who want to live up to this obligation must be especially
strong in their understanding of the divine natural laws and
unswerving in their obedience towards Him. It is therefore
the most shameful defamation of the glory of God to invoke
it to disguise unsound actions and to embellish deceitful
and illicit enterprises which are justified neither by divine
nor temporal laws and whose intention is, rather, to
appropriate that which belongs to others. (See August
Friedrich Müller's Introduction to the Philosophical
Sciences in his Metaphysics, ch.15, §.4, p.432, 434f.) with
what kind of conscience, then, can unauthorised reprinters
claim that they are promoting the glory of God, that is,
rendering the utmost obedience to divine will, by an
enterprise which is diametrically opposed to God's will and
His wise order. What it is that God's natural and revealed
will demands from them in this case, and how irresponsibly
they ¦


Chapter 1 Page 11

violate it, has been set forth sufficiently above. The motive
of their enterprise is the most harmful greed. It is
impossible to serve God and Mammon at one and the same
time. Where there are sure signs that for the sake of the
latter one has sacrificed one's neighbour's rightful
advantages, there it is quite evident that one has long since
ceased serving and obeying the former. The universal order
created by God demands from them that they love their
neighbours as themselves- not, however, less than
themselves, or, even less still, that they should despise them
out of depraved self-love. He who robs his neighbour of his
rights, advantages, privileges etc. loves him less than he
does himself, nay, he even despises him. He who does this
opposes the divine order and precisely because of this he
insults God instead of honouring Him as he pretends.
Accordingly, the insolent claim by unauthorised reprinters
that they are promoting the glory of God is and remains
either merely an uncouth expression of pure naivety or, as is
more likely to correspond to their true intentions, an
alluring varnish for their sanctimonious malice. Most
unauthorised reprinters also claim that apart from the glory
of God they are also promoting the common good. Let us
examine if and how they fulfil this intention which as such
and in itself is wholly commendable. There are two facts
which give their false intentions, at least to start with, an
outward semblance of virtue. They imagine that they are
acting for the benefit of their neighbours by, on the one
hand, selling their reprints cheaper than the legitimate
publishers sell the original copies, and, on the other, by
spreading useful books about which it would otherwise be
impossible or very difficult to get hold of. As far as the first
claim is concerned, the reprinters certainly go out of their
way to accuse honest publishers of the greatest injustice for
charging such exorbitant prices for the books they publish.
They flaunt before the latter their charitable Christian love
by alleging that they would much rather do without a
significant profit than make it difficult for their fellow men
to buy good books. The words are indeed very fine, but the
poison which they conceal is all the more dangerous. Being
generous with stolen goods, selling something cheap which
didn't cost one much, is hardly any evidence of Christian
love. It is very easy for unauthorised reprinters to sell their
wares for cheaper than the rightful publishers. Their
expenses are not as great as they were for the latter. The
legitimate publishers have had to spend a considerable sum
of their capital to satisfy the authors, to buy clean paper, to
prepare new works, and to cover any further needs which
might turn up during the process of publication. The
reprinters of a work have no dealings with its author, and
since the latter has already been remunerated for his work,
they don't have to spend anything on this. As for the other
expenses, they don't have to worry much about these, since
with reprinted works it is customary to save on ¦


Chapter 1 Page 12

the quality of the impression and the paper, as well as on
the accuracy of the typesetting. If, as is fashionable
nowadays, they reprint other publishers' books on
subscription demand they don't even have to draw on their
own capital and temporarily forfeit interest accruing on it.
They use others' money to finance the publication and can
thus easily acquire new capital together with the associated
interest. It is therefore quite possible to sell a book cheaply
if its publication did not cost the alleged publisher much in
terms of money or effort. One should therefore by no means
take it to be an injustice if legitimate publishers set a higher
price on their publications than that charged for books
which are produced in quite different circumstances. Like
all other retailers they are fully entitled to charge such a
price for their wares whose payment will give them the
pleasant hope that they will recover as soon as possible the
capital they have invested in the publication. No one should
begrudge them this legitimate right. For as with all other
trades this is the just aim of theirs too. If one takes these
facts into account, a sensible person will scarcely start
complaining that he has paid an honest publisher too much
for a work of significance whose printing has been taken
care of at a high level of quality and accuracy. It is even
more incomprehensible how such high prices, which
nevertheless reflect a work's intrinsic value, could cause the
least harm to the common good. Anyway, what do
unauthorised reprinters contribute to the promotion of the
latter by their cheap prices? Surely very little or nothing at
all. Not everything in the world can be cheap. Only those
would wish to have everything cheap who do not appreciate
the true value of things, or if they do, who out of an
inordinate self-love would rather have everything for free.
To indulge their vain wishes too much means to undermine
the common good rather than to promote it. The more
detrimental such enterprises prove for scholarly learning as
a whole, the less can the wisest scholars expect to benefit
from them. The authors of valuable works cannot but be
offended if their writings are made contemptible by cheap
prices. They know all too well that most people, and mostly
with good reason, argue as follows: what doesn't cost very
much cannot be worth very much anyway. For this very
reason other scholars too are greatly displeased if good
books are sold almost as cheaply as waste-paper. And this
all the more given that they can see that these cheap
editions are just abbreviated and butchered reprints.
Connoisseurs with good sense will always prefer to pay an
efficient and honest publisher somewhat more for an
accurate and clean book rather than paying a bungler and
impostor less for an inaccurate and, moreover, low-quality
reprint. If, though, a slightly higher price is to be called an
evil, then it is surely a more endurable evil to be
overcharged in the price than to be deceived in the ware one
buys. ¦


Chapter 1 Page 13

Even if we were to assume that cheaper book prices would
provide some relief to poorer readers, unauthorised
reprinting undertaken for this purpose would nevertheless
still be as unjust as the lavish alms a robber might give from
the goods he has stolen. Christian book sellers will surely
know how to come to the aid of those who are in need.
However, in truth all this is by no means the real intention
of unauthorised reprinters. They strive neither for the
common good, nor for the promotion of learning, nor for
alleviation of the needs of the poor. Profit-greedy
selfishness is their only ultimate purpose, which they so
skilfully know how to disguise under all these sophisms. To
paraphrase Aristophanes, Equitibus, they avidly want to
gobble up the food which another has cooked and
garnished. Like despicable parasites they strive to take
honest publishers' rightful profit away before these can
even get a bite at it; they try to entice their customers away
with the semblance of justness and seek to get rich at their
expense. How can this be true promotion of the common
good when all that it pursues is vain selfishness and damage
for others? They are therefore gross violators not only of
the seventh, but also of the tenth commandment. And one
can very well apply to them what Luther stresses in his
explanation of the tenth commandment in the Longer
Catechism (fol.200.2): "We are to understand that God does
not want you to take something which belongs to your
neighbour so as to satisfy your greed whilst he must do
without it, even if you manage to keep on to it without
forfeiting your honour in the eyes of the world. For it is an
insidious roguery, something which, as the saying goes, is
done under one's hat, if you do this so that no one notices.
For even if you walk around as if you hadn't done anyone
any injustice whatsoever, you have still offended your
neighbour; and even if one can't speak of theft or deceit,
you have still coveted your neighbour's property, that is,
striven after it and enticed it away from him against his
will, and you have not let him enjoy what God has
bestowed upon him. And even if no judge or anyone else
can take it away from you, God will not let you keep it. For
He sees through the hearts of rogues and the perfidy of the
world, which, where one concedes it even just a finger's
breadth, seizes a whole yard on top of that, so that the
whole community also suffers injustice and violence." As
far as the alleged scarceness of books is concerned, in most
cases it too rests on a mere fancy. The author of the
Jurisprudential and reasonable memorandum on the
infamous reprinting of books belonging to others observes
quite pertinently (§.18, p.22): "It will often be the case that
book sellers did not look for many foreign works which one
would have found in large quantities there where they were
published. Many sellers are too lazy, or have no commercial
relations with foreign countries, or perhaps lack the funds to
make payments in advance. Father Simon recounts in his
Bibliotheque Critique how he was able to buy Le Cointe's ¦


Chapter 1 Page 14

Annales Francorum Ecclesiastici for a reasonable price in
Paris even though he was told in Holland, Germany, and
England that this work was very difficult to get hold of."
(See also §.27, p.26). Similarly characteristic of our modern
times are those scholarly anecdotes about how unauthorised
reprinters have passed off certain books as rarities which
according to the public testimony of their rightful
publishers were still to be found in large quantities in their
warehouses, or which at that very moment they were setting
about to republish. However, even assuming that a book
had been sold out so fast that because of its rarity scholars
were anxious for a new edition to appear, no one would still
be entitled to anticipate the legitimate publisher in this task,
for the latter had never explicitly nor tacitly renounced his
publishing right to the work. It would, rather, be the
obligation of a virtuous publisher, when faced with frequent
requests for a rare book, to let the legitimate publisher
know about this in due course, for he will not then hesitate
to set about arranging a new edition and to thereby promote
the common good: it is he who is obliged and entitled
before anyone else to undertake such a task. Thus, the
reprehensible aim of unauthorised reprinters is solely to
attribute all rightfulness to their own enterprises, whilst
completely denying that of the legitimate publishers as well
as any prohibition right that might be directed against them.
They claim that no publisher can have an absolute right to
solely print and sell his books with the exclusion of others
(privative), for, as they argue firstly, the use of books is
public and open to anyone (publici iuris) and the freedom
of their commercial exchange invalidates any such
[exclusive right]. And, secondly, in order to obtain a proper
right of prohibition (ius prohibendi) book publishers would
have to apply for special privileges to this effect. And,
thirdly, the whole thing amounted to a harmful forced sale
(a monopoly). As far as the first sophism is concerned, it
rests on the notion, which nowadays is unfortunately all too
readily exaggerated, that the book-trade, like all branches of
commerce, is a free trade and that therefore anyone is
entitled to print books and trade in them. However, the
freedom of trade as such, and thus also of the book-trade, is
not as unlimited as to prevent certain necessary restraints to
be applied to it where there are compelling grounds for
doing so, that is, where the common good is made to suffer
because of it. (See Müller's Introduction to the
Philosophical Sciences, the section entitled "Politics",
ch.16, §.9; Caspar Ziegler's de Iure Commerciorum, §.22,
and B. Carpzow's Jurispr. Consist., Book II, def.414,
nr.17). The freedom of the book-trade, which like that of all
other trades must be based on natural justness, can never
extend as far as to allow one to take away from someone
else the books that are his as well as the rights to these
which he is entitled to before anyone else, ¦


Chapter 1 Page 15

and to allow one by means of unauthorised reprinting to
cause irreparable damage to an honest publisher. If the use
of books were public (publici iuris) in this way, then a
reprinter wouldn't be entitled to complain if customers
without money carried away from his shop all books that
interested them without paying anything for them. But just
as unjust as this would seem to reprinters, so illicit is their
own undertaking, since both cases have this in common that
someone robs another of his property without any form of
compensation and thus causes him to suffer a loss. Besides,
the freedom of the book-trade is not undermined in the least
if a publisher cannot and does not wish to allow others to
reprint his books elsewhere without his consent. For other
publishers still have the right to publish as many new books
as they want. They also remain at liberty to sell another
publisher's books as much as they please once they have
lawfully obtained these from the latter in exchange for cash
or other wares. If we now consider the lack of necessary
book privileges, it turns out that this neither gives malicious
reprinters a right, nor does it call into question the
prohibition right of the true legitimate publishers. The
former usually argue as follows: he who has a well
established right (jus quaesitum) does not need any special
privilege; given that book publishers do not shun great
expenses to obtain such charters of privileges from supreme
persons, this must mean that they are not in themselves
entitled to an absolute right which lets them be the sole
publishers of their books with the exclusion of others. (See
Mr von Ludwig's Praefat. ad Reliqu. MSC, vol.1, §.41,
n.131). However, it is not difficult to demonstrate the
invalidity of this conclusion. Book privileges as such are as
unnecessary as civil laws against theft. The duty of letting
each person have what is his and not hindering him in any
way in his free use of it, is and must be inherently known to
all rational beings. However, when the evil of men incites
them to wilfully fail to observe their natural obligations and
as a result external disorders arise in society, this
disturbance must be checked by emphatic directives from
the authorities. It is precisely this which was the origin of
book privileges. The forcible and frequent infringements by
selfish reprinters on the rights of some publishers
compelled these to strengthen even more their already
existing rights by applying for privileges. This was also the
reason why Erasmus in his time had to recommend such an
expedient to the celebrated Frobenius. (See Erasmus, Epist.
ad Pirckheimer; and also Cheviller, de l'Origine de
l'Imprimerie, p.206; as well as the Jurisprudential
memorandum on the reprinting of books belonging to
others, §.14, p.17). Thus, the request for book privileges is
more of a necessary ¦



Chapter 1 Page 16

precaution one takes to protect one's right than a means of
obtaining this right in the first place. This is precisely what
the famous Saxon jurist Benedict Carpzow argues
(I.c.n.1f.). Moreover, the absence of a privilege does not
bestow the least right on reprinters. This false notion has
been refuted as follows by another old and eminent jurist,
Adrian Beyer, in his brief Report on the useful and splendid
book-trade (§.70, p.52): "Someone might say that if book
publishers have to arm themselves in advance with
privileges, this means that where there is no privilege,
reprinting is clearly licit and unpunishable. Not so, my
friend. The lawsuit will indeed be faster where one is suing
for violated privileges (since in such a case there is no need
for the tedious and irksome demonstration of interests, cf.
§.7, Inst. de verb. oblig.), the redress will be more
emphatic, and the punishment more painful. But it does not
follow from this that where there is no privilege, there is no
right, no redress, no sin or punishment. Natural right and
reason instruct each person to leave be what doesn't belong
to him. Certainly, because of human evil, and sometimes
stupidity, stealing is forbidden by the authorities on pain of
an explicitly stated punishment, but before all this it was of
course not right as such." From this we may therefore draw
the following irrefutable conclusion: where the
consolidation of a right takes place, this means that a right
must already have been present which is now to be
strengthened. For one cannot say of something that cannot
be found anywhere that it has such-and-such qualities. If the
sovereign ruler confirms by means of privileges the sole
right of publishers to print their books with the exclusion of
others, this means that they must originally already have
been entitled to do this without any such privileges. Now,
the latter has been proved sufficiently with the arguments
we have just set forth. From this it must necessarily follow
that, as things are, there is no way of contesting the right of
legitimate publishers to be the sole printers of their books or
the right of prohibition which emanates from this. It is true
that book privileges are generally only granted for a specific
period of time, and unauthorised reprinters may well deduce
from this that the publishers' right is not irrevocable and
consequently not absolute either. However, a true right does
not cease being a right just because the sovereign may not
deign to continue confirming it. Thus, if a legitimate
publisher finds himself unable to sue for the breach of a
particular right, he will always find in his general right,
where it is violated, sufficient grounds for taking legal
action. Besides, the revocation of such privileges is in fact
just aimed at a specific misuse of them which may have
occurred (Carpzow, I.c. def.415, n.12). Experience, on the
other hand, shows that when this misuse disappears the
privileges which have been granted only for a specific
period are, after due application, readily renewed ¦


Chapter 1 Page 17

and extended for a further number of years. This would
obviously not occur if publishers did not have a right to this
as such. From all that has been said it immediately becomes
clear that the whole thing by no means amounts to an
infamous forced sale (i.e. a monopoly). This opinion is
shared by the already cited Jena Memorandum (p.14). Even
the very concept of a forced sale contradicts the specious
claims of those who would have it considered thus. Jurists
understand by this concept a purchase or sale of such things
and wares whose commercial marketing is generally open
to everyone alike, but which has been arrogated by
someone exclusively (Lüder Mencke, Theor. & Prax.
Pandect., Book 18, I.§.8, p.393). Now it is reasonable to
ask whether the printing and publication of a book, for
which a publisher has acquired a right solely for himself,
deserves to be called a trade of this kind, that is, one which
is generally open to anyone? A thing which one holds in
ownership cannot be subject to communal ownership. Now,
the legitimate publisher who has bought a book from its
author is, by virtue of a special contract, entitled to its
ownership, as has already been shown at length. From this
it follows without question that other publishers cannot
have any right of communal ownership to this book.
Consequently, the right of a legitimate publisher to be the
sole and exclusive printer of the book of which he is the
owner, cannot be called an infamous forced sale. It would,
however, deserve this odious name if one or the other
publisher were to arrogate to himself exclusively the right
to publish all the books in the town in which he lives, or if
he were to refuse to offer, in exchange for a reasonable
advance payment, the books he has published to bookshops
so that they might be sold there: this would indeed mean
that he was seeking all profit for himself. However, all
these circumstances do not apply to the present case. Thus,
it does not belong to the category of so-called monopolies
either. But let us assume, without it having to be actually
true, that publishing right is indeed of this kind: it is well-
known that the laws definitely permit such monopolies if
required for the sake of the common good. That in the given
case society has a strong interest in it being so has been
shown by Carpzow, in particular (I.c. def.414, nr.9, 10, 11).
(See also Ziegler, de Iur. constit. monopol., §.21; Lederer,
ad l. un. C. de monopol., §.30; George Werner, de
Monopol., §.29). On the other hand, commercial trading
with things and wares which is permitted to too many
traders collapses by itself as soon as it starts becoming
harmful. Thus, a monopoly which has at its heart the benefit
of the whole trade as such, cannot be harmful nor can it be
contrary to the good state of a society. The right of
prohibition which legitimate publishers of unprivileged
books are entitled to against the all too greedy reprinters,
must therefore stand firm and fixed. This conclusion is ¦


Chapter 1 Page 18

confirmed all the more if one refers to the highly detailed
judgements of two famous faculties of jurisprudence in
Saxony, those of Leipzig and Wittenberg. The former can
be found in Berger's Elect. Discept. For., p.1096ff.; the
latter in Wernher's Obs. For., vol.6, p.x, Obs. 443, p.796f.
Profit-greedy reprinters more frequently seek to justify their
illegal undertaking by obtaining from supreme persons
special privileges for their reprinted editions, though not of
course in a lawful manner but by means of deceit. They
imagine that they have thereby acquired an unquestionably
valid prerogative over those who cannot present a privilege
for the first and subsequent editions of their books. They set
such store by their alleged right that they even try to wholly
exclude those who by virtue of an older privilege have
surely received confirmation of their right to this their
property. However, on closer inspection it will be found
that in both cases such privileges cannot invest
unauthorised reprinters with the least right. The laws state,
as is known, that no one can be given a privilege the grant
of which would cause someone else to suffer a loss
(Wernher, Obs. For., vol.3, pt.4, Obs. 117, p.294). It has
never occurred to princely persons to attribute such an
inhuman validity to their decrees. They are fathers of their
country and love all their subjects. They are concerned
above all with promoting the welfare of all of them. This
just and sovereign providence, which is directed at all
subjects alike, does not permit them to grant privileges and
prerogatives whereby the benefit of one subject would be
promoted at the expense of another's loss. The Emperors
Thedosius and Valens long ago gave their clear opinion on
this matter (L. 7, C. de precib. Imper. offer.) From this
Trentacinquius concludes (in Var. Resolut., ch.7, nr.7) that
all privileges tacitly as it were presuppose the clause
"without detriment to the right of a third party". Now, book
privileges are confirmations of the rights to which
publishers are entitled with respect to their books, as has
been shown on several occasions above. Reprinters were
never entitled to such rights. Thus, it is impossible for the
grant of a privilege to invest them with such a right. The
malicious reprinter causes, as has also been shown in the
above discussion, quite considerable damage to the
legitimate publisher. If profit-greedy reprinters were
supported by privileges from supreme persons in their
insatiable desire to get rich at the expense of others, this
would not only compound the damage suffered by the
latter, but would also inflict an even more irreparable evil
on society itself. If one takes these facts into account, one
may well have good reason to question the justness of such
book privileges. It is precisely this which seems to happen
in the case when ¦

Chapter 1 Page 19

unauthorised reprinters seek to protect themselves through
new privileges against legitimate publishers who have older
charters of privilege. Here it is without question that the
newer privilege must defer to the earlier one, especially as
the latter will have been frequently renewed and confirmed,
since it is inconceivable of the profound and benevolent
insight of the supreme authorities that they would want to
bestow upon someone else what they have already given to
one person. (See Leyser's Medit. ad Dig., vol.1, specim.10,
pt.10, p.114). Nevertheless, daily experience in our present
age does suggest that such privileges are often applied for
and are indeed granted. What validity, though, can they
have when at the time of applying for them the true
circumstances were concealed so that they were only
obtained surreptitiously (sub- & obreptitie)? After all, the
constitution of a well-established State demands that all
sovereign decrees have as their basis that which the
Emperor Zeno (I.7, C. de divers. rescript.) always took as
implicit in his decrees, namely, the assumption that the
reasons given by those applying for them were actually
true. Seasoned jurists agree that someone who manages by
all manner of lies and frauds (per sub- & obreptionem) to
acquire a privilege for another's book has as little right and
power as anyone else to divest the owner of what is his.
(See the judgement of the Leipzig law faculty, cited on the
preceding page). Even the Saxon code of law has denied in
such a case all legal force to such privileges. (See the
aforementioned Electoral Territories' Local customs and
other directives issued in the Electorate of Saxony, I.c).
Unauthorised reprinters may well seek to invoke in their
favour the opinion of some jurists who believe that a
sovereign prince can, by virtue of his supreme right of
majesty, grant the same privileges to two persons, even
though one of these would thereby suffer significant losses.
(Leyser, I.c, pt.4, p.106). Wise and just rulers of peoples do
not demand that their majesty be invested with all too
sweeping powers which would seem to nullify the
prerogative of God's powers. They do not want their
directives to destroy the obligations of the divine laws
which are the only guiding principle for their own actions
and the very basis of their legislation. However, if such like
should happen once or twice, then such a particular
occurrence, which must be treated as an exception to the
rule, cannot invest anyone with a right as if it were
somehow a general rule that one can unfailingly count on
privileges being given to one's follies. In this sense, another
exception to the general rule which Stryck refers to (Us.
Mod.Pandect., Book 1, t.4, §.2, p.25) cannot serve
unauthorised reprinters either as sufficient grounds for their
purported right. Stryck, namely, argues there that no ¦




Chapter 1 Page 20

Estate of the Empire is entitled to annul a privilege which
his Imperial Majesty has granted to a given book publisher,
unless he had grounds to fear that his own subjects would
suffer a significant loss as a result of the privilege. For if
these had need of a particular book and couldn't obtain it
for a reasonable price from that publisher, there could be no
doubt that any sovereign prince would be entitled to grant
someone in his lands the permission to reprint this book for
the use and benefit of his subjects. Now, since the Estates
are entitled to take measures here and there against the
general Imperial laws, one might ask why they shouldn't
have the power to do so where only the benefit of a
particular individual is concerned? However, as Stryck
argues, such power must be limited to the territory or area
over which the prince is sovereign. Otherwise, if, say, the
seller of that book tried to sell it outside this specific
territory, he would have to expect to be punished in
accordance with the Imperial privilege. Thus, it will be of
little or no avail to unauthorised reprinters to insist on
privileges which they had merely obtained in a deceitful
and surreptitious manner. And legitimate publishers will
have not the least cause for paying heed to the warnings
these reprinters may issue or for fearing the damages that
these may threaten them with. Thank God! the law still
holds in the country, and there are still wise and just people
who are responsible for its application. Honest publishers,
as loyal subjects, can rest fully assured that the supreme
authorities will most graciously know how to protect them
in their rights and privileges. Even permission by the author
of a work cannot give unauthorised publishers the right to
deprive the legitimate publishers of the benefit of
subsequent re-editions. He who wants to grant someone
else a right concerning a specific thing must himself still
have some kind of right to it. But where one has voluntarily
renounced all rights to it, there one has also divested
oneself of this privilege [of giving others a right to it]. All
granting of permission takes place through settlements or
contracts. To grant someone else by means of a new
contract a right to a thing which fully revokes the free use
of it that one had conceded to a particular person in an
earlier contract, is a completely invalid undertaking.
Therefore, how can a permission which itself is illegal serve
as the foundation for a right which one seeks to acquire?
Certainly, a scholar does retain the right of ownership to his
learned work, but the book itself, as a physical object, he
has sold for a specific sum of money to a publisher and has
indeed handed it over to him. He has simultaneously ceded
to the latter the right, to which he would himself otherwise
be entitled, of having it published, printed, and re-
published, as was already ¦


Chapter 1 Page 21

proved above. Because he has divested himself fully of this
right, it is no longer in his power to exercise it as he
pleases. There is a clear contradiction in giving a second
publisher the right to a new edition from which one is
excluded as a result of the contract one signed with the first
publisher. Thus, the author's permission can be of no avail
to unauthorised reprinters, since it is itself a spurious and
unlawful action. For here too we find confirmed what the
ancient jurist Paulus (in l.29ff. de R.) considers rightful.
What once and for all or in the beginning is defective or
deficient cannot be made good by the passing of time. Now
all we have left to consider is the last, equally shaky,
support on which profit-greedy reprinters try to base their
purported right. They, namely, also invoke the fact that
reprinting is customary practice, and Mr von Ludwig for
one does not hesitate to give them his approval in this (1.c).
Certainly, it cannot be denied that the unauthorised
reprinting of books has nowadays indeed become an almost
general habit amongst the otherwise so honest Germans.
Various examples of it come to light almost weekly in the
anecdotes told by scholars. Moreover, this practice has been
taking place for so long that one might well think that it has
fallen under the statute of limitation. And yet all this cannot
serve as sufficient justification for it. The chief quality
required for such limitation to apply is absent in this case.
From the whole context of what has been said so far about
this matter, it is clear that this practice runs contrary to
justice and decency. Now, just as it cannot be said of the
grossest crimes of our present age, which since time
immemorial have been committed every so often, that for
this very reason they can acquire the character of a well
established custom, so it can neither be said of the wholly
unlawful practice of unauthorised reprinting. Here too the
ancient German saying is valid: a wrong of yesteryear
cannot now become a right. Shame on those book
publishers who think of themselves as Germans and yet
possess none of the ancient German virtues of loyalty and
honesty. More on the subject can be found in a work
published in 1732, the Charlatanry of the book-trade which
encourages its abasement as a result of scamped work,
subscriptions, auctions, reprinting, dawdling etc., examined
impartially by two persons devoted to the trade; and,
similarly, in the Letter of a European book publisher to
another famous publisher in Germany, concerning the
recently published lampoon: 'The charlatanry of book-
trade', published by Antoine de St. Genoveve; as well as the
Unbiased reflections on two infamous pasquinades titled:
1) The Char- ¦


Chapter 1 Page 22

latanry of the book-trade, 2) Letter of a European book
publisher to a German colleague (Hamburg, 1732); and
also in the Honest and reasonable memorandum of an
unbiased [jurist ?] on the infamous reprinting of books
belonging to others (Halle, 1726); and no less so in the Jena
law faculty's Responso Juris, together with the approval of
three law faculties (those of Giessen, Helmstadt, and
Erfurt), in which it is shown that the authors of published
books and their concessionaires who have not applied for
privileges to them from the supreme authorities, are not
entitled to a monopoly over the sale of such books, and
have no right before the temporal courts to forbid others
from reprinting such books or bring a lawsuit against them
(Erfurt, 1726); and, finally, in An honest patriot's unbiased
thoughts on some of the causes and effects of the abasement
of the contemporary book-trade, wherein the fraud of book
subscriptions, in particular, is revealed and it is also
demonstrated that the unauthorised reprinting of
unprivileged books is a theft which runs contrary to all laws
(Schweinfurt, 1733).




Translation by: Luis Sundkvist

    

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