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Annotated Publishers' Petition to the Congress of Vienna (1815)
Source: Scanned from a reprint edition (Reutlingen: Gryphius Verlag, 1971). The original used for scanning was the copy from Universitätsbibliothek Tübingen
Citation:
Annotated Publishers' Petition to the Congress of Vienna (1815), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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2 translated pages
Chapter 1 Page 1
Memorandum
on the
Reprinting of books
including
a petition for
a German State Law
against this.
Presented with the greatest respect
to the illustrious Envoys
of the German States
at the Congress of Vienna
in the name of German book publishers.
Leipzig,
printed by Paul Gotthelf Kummer.
1814
Chapter 1 Page 2
Your Excellencies!
The tremendous importance of the affairs which, at this so long yearned
for Congress in Vienna, are to be entrusted to the wisdom of Your
Excellencies for deliberation and resolution, should not preclude a matter
from being brought to Your attention which, though seemingly of minor
relevance, is nevertheless very important for Germany’s intellectual
life as well as for a branch of her commerce.
Therefore, in the name of German book publishing, which is so closely
tied to the German republic of letters, the undersigned have dared to
present Your Excellencies with this memorandum on the unlawfulness of
book reprinting, which, although long condemned by public opinion, has
so far not been dealt with in the various German states, hoping that You
will draw up a Law for the prevention of reprinting that will be binding
for all Germany.
We remain the humble servants
of Your Excellencies,
Dr. Friedrich Justin Bertuch, from Weimar,
Dr. Johann Georg Cotta, from Stuttgart,
Johann Friedrich Hartknoch, from Leipzig,
Paul Gotthelf Kummer, from Leipzig,
Carl Friedrich Enoch Richter, from Leipzig,
Friedrich Christian Wilhelm Vogel, from Leipzig,
as the authorized representatives
of the German book publishers.
At a moment in which Right and Humanity are celebrating their finest
triumph, in which the noblest men of the German nation have gathered to
heal the Fatherland’s wounds and to mete out, on a just scale, to all
peoples and estates what corresponds to each; in this solemn moment the
German writers and book publishers may step with confidence before this
Areopagus in order to ask for a law, valid throughout all Germany,
against the reprinting of books, which has been embittering for so long
the fruits of a scholar’s diligence; which robs him of his courage to
sow where strangers are lurking to reap; which often distracts him,
through worries, from an intellectual endeavour which won’t provide any
savings for his widow and the children he leaves behind; which criminally
infringes on the duly acquired property of the honest book publisher;
which scares him [the honest publisher] away from backing any significant
enterprise and thus indirectly stifles the arts and sciences.
We are at peace! Without having to fear privateers, the merchant can
now trust his wares to the ocean: is it just against writers and publishers
that constant raiding and piracy will be allowed to continue?
According to the fifth article of the peace treaty concluded between
the great allied powers and France, the task of the blessed Congress at
Vienna is to facilitate communication between the various peoples so that
they cease to look upon each other as strangers. This facilitation, this
bringing [of the peoples] closer together, by freeing Europe’s navigable
rivers, can equally be encouraged by safeguarding rights of ownership.
It is therefore with confidence that we hope that the Congress will not
find it beneath its dignity or incompatible with its task to take into
account a matter which is of the highest concern not just for one class
of people, respected throughout all cultured nations, but also concerns
the interests of these very nations.
The question is whether it will continue to be tolerated that a
citizen of a German state should be able to appropriate the rightfully
acquired property of a citizen in another German state?
Put otherwise, the question is whether, at a time of peace, any
government should have the right to allow its subjects to cause damage
to the subjects of foreign lands?
However, before the desirable resolution of these questions can
be attained, it is necessary to examine the following:
Should a book publisher’s copyright really be seen as a property
right?
and
Does reprinting cause him damage?
What, then, is the book publisher’s copyright based on? It is based
solely on the contract he makes with the author of the book, whereby the
manuscript is entrusted to him under certain conditions.
That the writer has a right to do this, no one will surely deny,
since there is scarcely anything that can be owned more incontestably
than thoughts, intellectual faculties and the fruits thereof!
Now, since a right can only be transferred by the person who owns
it, the publisher too can only receive his from the writer, and, moreover,
in the same form that the latter was entitled to exercise it. Thus, if
the right of the writer is a right of ownership, such too is the right
which he transfers to his publisher. When he hands this over, it does
not become res nullius [lat. something which doesn’t belong to anyone],
it doesn’t suddenly become a fruit which has fallen from an ownerless
tree and which anyone can just pick up.
These statements are so clear and straightforward that one would
hardly think it possible to dispute them. They have nevertheless been
disputed, albeit only by using such arguments which, under any inspection,
turn out to be fictitious. Sophists, however, are not ashamed to use
them. It suffices to just look at these arguments for what they are worth.
First of all, the sophists claim that:
“The exclusive right to trade with a book is a monopoly, and is
therefore harmful to the common good”.
One could say with as much right that a gardener who owns a fruit
tree which is unique in its kind and sells its fruits is thereby
exerting a monopoly. If such a monopoly really did exist, then it would
have been given to the gardener by Nature, just as the writer, too,
would have received it from her. Only the writer, therefore, is a
monopolist- if one wants to put it that way- not the publisher, and who
can rob him of this monopoly? If, say, a ruler were to call upon all the
writers of his country to write a work on the same subject, they will
never all produce exactly the same work: each work will be such as could
only have been written by one of them, to whom alone it therefore belongs.
By virtue of its incontestable individual character, the work is his
exclusive property, with which he alone may trade, and, should he choose
to sell it, he may set the conditions at will. Laws against monopolies
are usually directed against the warranty of an individual to [exclusively]
produce a particular article, and are therefore not applicable to
intellectual works. In the world of letters there is no monopoly other
than that occasionally exerted by governments when they ban writing on
certain subjects, reserving for themselves alone the right to inform
the public on these. A monopoly of this kind was, for example, exerted
by Napoleon with his bulletins.
The copyright should not be confused with the right to sell books.
The latter belongs to anybody: one can find a book which has been published
in Berlin, in Leipzig, Vienna and anywhere else, often cheaper in one
place than in another. Only the copyright is a monopoly of the writer,
which he can exert himself or transfer it to someone else.
Now, if a [particular] publisher alone was authorized to purchase
a copyright, this authorization might well be given the odious name of
a monopoly, but, in fact, every book publisher was at liberty to enter
into negotiation with the author. Each publisher could have bought the
latter’s rights, and so this transaction was not a monopoly.
The sophists’ second argument is that:
“After buying a book one becomes its owner, and surely everyone
can use his property as he wishes!”.
Quite so, as long as it does not cause damage to someone else.
The buyer has bought the book, but not the copyright. He can read the
book, or tear it apart, or burn it; but is he also allowed to throw
the burning book into his neighbour’s granary? Moreover, does he own
this property with more rights than those transferred to him by the
seller?
One might object that when selling a book, the publisher doesn’t
explicitly reserve for himself the right to reproduce the book, but
this proviso actually goes without saying. There are after all examples
in Roman law which can well be applied here. E.g. someone who had
bought a slave without peculium [lat. private property], was not
allowed to lay claim to the latter, even if it had not been explicitly
excluded from the sale. Several cases can occur in which the buyer
does not acquire all the possible privileges that one can think of
in relation to the item he has bought. Let us say, a nobleman has
sold to his peasants some parts of his land without mentioning the
hunting right which covers the whole estate: does this mean that
every buyer can now lay claim to this right?
Reprinting has a most striking similarity to counterfeiting or
the forging of banknotes. Every owner of minted money can do with it
what he wants, except for recoining it. The person who has the right
to mint coins is, so to say, like a publisher, and the right of
coinage is his copyright. Just like a book, a coin is issued under
the tacit condition that it may not be reproduced by counterfeit,
even if its [metal-]content remained the same. All excuses one can
possibly think of in support of a reprinter, can also be applied to
a forger or counterfeiter. True, the latter is usually a private
person who dares to encroach on a sovereign right, but if, say, a
sovereign power were to order the counterfeiting of another sovereign’s
coin, would the latter just allow this to happen?
A writer may also be fittingly compared to a preacher: both
address the people- whether orally or in writing, that doesn’t
really make a difference. The former is the owner of his writing,
the latter of his speech. Is it, then, permissible for a speed clerk
to hide in some corner of the church, take down the sermon and have
it printed without asking the preacher? – It is precisely in this
way that a reprinter operates. Whether he steals a work from the
author’s lips, or from his feather, amounts to the same. The writer
had designated it for his readers alone, the preacher for his
listeners; the former with the understanding that they would acquire
it through purchase, the latter on condition that they would attend
the church. No one is allowed to reproduce such a work for others
who haven’t met these conditions.
Doesn’t the publisher spread the costs of the author’s fee and
printing expenses, as well as the expected profit, amongst all the
published copies? Thus, he cannot surely surrender the copyright
with each of these copies he sells! The copyright has an altogether
different price. Those who reprint a book are pretending to the
profits of altogether quite different wares, of which they have
only bought one anyway. Someone who buys a medicine at an apothecary’s
shop does not automatically acquire the apothecary’s right to
dispense [this medicine].
Any kind of reproduction of a work is unlawful. Even if a buyer
found it more profitable not to reprint a book, but, rather, to have
it copied by hand a thousand times, this would still be the same
infringement of copyright. If, let us assume, Schiller had sold
the manuscript copy of one of his great works to a theatre in Berlin
or Vienna, he would thereby have been giving this theatre the right
to read and stage his play, or to tear it up or burn it, but by no
means the right to reproduce the manuscript copy on the theatre’s
own terms and sell it to someone else. We find the same relationship
between the publisher of a book and the buyer. A theatre director
can convey Schiller’s play from the stage to as many spectators as
can fit into his theatre; the owner of a book can read it to any
gathering of people he wants, or lend it to any number of friends
for as long as they require to read it, but that is the limit of
their rights as far as communication of the work is concerned.
The same holds for the music of a composer. The rights of the poet
[playwright] and composer in such cases have long been established:
why then should the writer, who arranges for his work to be printed
under equal conditions, be the only one who pleads in vain for the
same justice? Is the printed copy of a book after all not the same
as a manuscript copy?
Is it not the case that everywhere where someone who uses his
property to the detriment of others, that person has a charge
brought against them either for negatoria [jur. lat. compensation?],
or for de damno infecto [jur.lat. undoing of losses]? Are
there not cases in which just propter damnum privativum, in sola
interceptione lucri consistens, actio doli [jur.lat. on account of
private losses, consisting merely in the taking away of profit, a
lawsuit for deceit] can be initiated?
The sophists argue thirdly that:
“The reprinter is surely just doing what someone does when he
imitates a manufactured article, indeed any physical object, or a
work of art”.
This comparison is inappropriate. Someone who imitates a thing
can only give [his imitation] the form of that which he is imitating,
but he is not allowed to steal the required material from the
inventor. He has to obtain this by himself and process it with as
much effort as the original manufacturer. The person who reprints
a book, however, is hardly concerned with the form: what he makes
use of is the same material, the same raw material, since paper and
printing do not constitute the essential part of a book.
The manufacturer of replicas has the same expenses as those
borne by the original manufacturer, but not so the reprinter, who
doesn’t risk anything, who just appropriates the benefits, without
bearing the inconveniences.
If, when comparing manufacturers and reprinters, all that
mattered was the imitation of an object, the comparison would
certainly hold good, but, in fact, it is often the object itself,
as is the case here, which makes all the difference. If a cloth
manufacturer obtains a privilege which grants him the exclusive
right to produce a certain type of cloth, this may mean that the
industry of a whole region is sacrificed for his sake. But when a
Lafontaine has the exclusive right to produce copies of his fables,
this by all means does not prevent La Motte from also writing fables.
Therefore, the comparison of reprinting to the imitation of a
work of art is also inappropriate. The latter certainly entails
representing the idea or even the spirit of the work of art being
imitated, but it is never really achieved in the same way that the
artist had conceived it. A painting, a statue can never be copied
as exactly as letters can. A painting is itself the work of art,
whereas a book is just the means by which the work is presented to
the [reader’s] mind. Thus, those who imitate a painter’s brushstrokes
won’t automatically come up with his work of art, but those who copy
the signs by which a writer has made himself understood, are
appropriating his work exactly as it originated in the author’s
mind. Imitations of works of art do not yield the original, which
experts will always prefer anyway, but reprinting does yield the
original. There are many inferior porcelain manufacturers, about
whom the factory at Meissen has no need to complain, since the
quality of its raw materials guarantees its sales. But there is
not a single inferior reprint which does not also purvey the raw
material of the reprinted work. On the other hand, if a hundred
playwrights all tried to write their own "Maria Stuart",
that would not harm the sales of Schiller’s works at all.
Fourthly, the sophists argue:
“If reprinting were unlawful, why should there have to be
privileges [for book publishers]?”
Here we have to ask: what does such a privilege consist of?
It is an assurance from the authorities that they will help the
publisher in defending his copyright. This means that this right
(of ownership) has already been recognized by the authorities,
since they would not grant privileges for things that are public
property. A [publisher’s] privilege is much like the safe conduct
one used to procure when travelling on unsafe highways in the Middle
Ages. When the traveller made his way without a safe conduct, this
certainly did not mean that the authorities of those times conceded
bandits the right to rob him, just as in our own times a sauve
garde does not give enemy troops the right to plunder.
When book printing was invented and there were already multiple
[handwritten] copies of every book available then in the hands of
various people, everyone who was the rightful owner of such a copy,
could lawfully have it printed if the author or his heirs were no
longer alive. But the fact that, already then, the exclusive copyright
was considered a right of ownership with which one could be endowed,
is demonstrated by the privileges which started being granted from
1494 onwards. For the governments of those times took the place, as
it were, of the writer who was no longer alive by selling or presenting
the copyright of his work to a publisher and inflicting considerable
fines on [unauthorized] reprinters of the work. If the governments of
those times could transfer their right [of ownership], though their
right may sometimes have been questionable, and demand that their
prohibition be observed, how can the governments of today fail to
protect the same, but in this case unequivocal, right of the writer?
A quite similar case, in which the government exerts the rights
of the author, still occurs daily with the court newspapers, whose
copyright is transferred to the publisher in exchange for a tax or
a rent payment (in effect, an author’s fee). What would happen if
someone reprinted an issue of such a newspaper as soon as it had
come from the press, and sold it for a lower price, since he didn’t
have to pay for the copyright? Wouldn’t the government forbid such
reprinting? And is its right to do this any different or better than
the writer’s? Would it not, just like the latter, point to the losses
suffered by the rightful publisher because of this? What the authorities
can forbid when they are harmed by it, can they tolerate it even if
it should benefit them?
Book [publishing] privileges are superfluous as far as the law
is concerned, and reprinting isn’t just unlawful because of the
privilege which may have been conferred on a particular work.
Reprinting is in itself unlawful- what the privilege is meant to
do, as in various other cases, is just to reinforce further an
already established right.
If the reprinting of a non-privileged book were lawful, why does
one never find reprinted copies in the same territory in which the
original was printed? Why does a publisher only rarely request a
privilege from his sovereign ruler, even though reprinting is not
explicitly forbidden by the laws of his state? – Because in such
a case his rights would be protected anyway. How can, though, a
state refuse to grant the same justice to the subjects of a foreign
state as it demands for its own subjects and recognizes as well
founded?
The fifth and last fictitious argument of the sophists is:
“The fear that book prices will rise”.
This fear is unfounded. Even if all book publishers were to
conspire so as to raise book prices, surely it would be easy for
the authorities to take measures to stop such mischief! There are
strict regulations for food and bread prices- why, then, should
intellectual nourishment, which for civilized nations is just as
indispensable, not be subject to similar laws?
Pütter in his time remarked: if cheap prices were sufficient
to vindicate reprinters, one might as well treat those who sell
stolen goods as agents for the common good! He even cites various
examples in which the reprinted copy was sold for a higher price
than the original.
If the lament of a couple of hundred people who, without
stopping to think about justice, fairness and general benefit,
like to buy their books for a few pennies less, could so much as
cause the slightest tilt to the balance, then one really should
have stifled book printing altogether as soon as it emerged,
because this invention caused thousands of copyists to lose not
just a few pennies, but their very living. If these buyers of
books genuinely love the arts and sciences, they will find ways
of recovering this small sum by saving on other pastimes, but
those copyists, if they had no other trade, would end up as
beggars. And yet their laments were ignored, since they were
drowned out by the general rejoicing at the advantages brought
by the new invention, just as the laments of those who like to
buy cheap would fade away amidst the general rejoicing of all
upright Germans if the requests which have been put forward
here do not remain unfulfilled.
Surely the buyer of a reprinted copy must at some point,
during his reading of the work, have been disturbed in his
enjoyment by the following thought: “By saving a small sum of
money I may well have contributed to the writer, whose intellectual
work has been providing me with such agreeable pleasure, glancing
at his children with a worried sigh and throwing away despondently
the pen which he had been about to take up again, in order to offer
me a new, similarly enjoyable work”? – What good would the
regeneration of our times be, if the despicable selfishness which
we were rightly accused of,* should remain undestroyed?
Of course, for the reprinter it is easy to sell cheaply since
his conscience isn’t worth anything to him and his expenses on
printing are just to pay for the outer shell and not for the kernel.
It is a well-known fact that a publisher often has to sell
several hundred copies of a work before he can recover just the
fee he paid to the author. The reprinter, on the other hand, who
just has to pay for one of the authorized publisher’s copies and
whose insignificant printing expenses are easily recouped, makes
a clear profit on each of the reprinted copies he sells, without
stopping to think whether the writer, whose work is making him
rich, should be rewarded for his effort, diligence and genius.
Without sowing, he sells the grain, even before the sower has
gathered in enough to make good his seed-corn.
One should also take into account that in the case of many,
and precisely the most useful books, the publisher can hardly
ever count on quick sales. Only he knows the value of the book
he is printing; he looks upon it as an investment which, even
if only after several years have passed, will more than pay itself
off. Being convinced of this, he is prepared to advance considerable
sums and helps bring to light a work which, without these advances,
might never have appeared. Thus he does society and learning alike
a good turn, but lo and behold! suddenly a stranger comes along
and robs him of his investment and rightful gains. Is this to be
his reward?
What if during the printing the author were to die without
having completed his work? Will the devious reprinter compensate
the publisher for his losses? – How can the publisher know
beforehand whether a book which is fine in all respects will
actually sell well? The reprinter, in contrast, can choose from
all published books and he will of course only pick those that
he knows won’t be difficult to sell. But even the small gain which
the lower price of reprinted copies represents for the buyer,
will vanish as soon as the publisher doesn’t have to fear
reprinting any longer. A publisher who can confidently reckon
with selling his high quality publication in all those states
where at the moment unauthorized reprinting makes such a sale
impossible, will, in future, print 2000 copies where he would
otherwise just have printed 1000. Assuming he had had to sell
those thousand copies for 1000 thalers, in order to cover expenses
and make a net profit- in future he might well be able to sell
those two thousand copies for just 1500 thalers. Thus, it is
actually reprinting which makes books more expensive, rather
than lowering their price. If the merchant who has garnered
stocks of grain were able to exterminate the worms and mice
in his granaries, the prices for his grain would be lower.
All that remains is for us to point to the general
drawbacks that arise from reprinting. How many scholarly works
have to remain locked up in the author’s desk, either because
no publisher can pay the requested price for them, due to fear
of reprints, or because, more generally, the spirit of enterprise
is paralysed by reprinting: the publisher has to limit himself
to bringing out novelties and has no energy left for a work
which will start yielding profits only after some years. If,
however, one were to protect his rightful gains on all that
he has printed, this would enliven his strength and enthusiasm
to publish such works which will bring him more honour than
profit. If each year one such work remains unprinted, just so
Mrs A. and B. can buy their books cheaper, this is enough to
cause irreparable damage, since who can calculate the beneficial
consequences which the dissemination of a single useful work-
often even just of a single thought in such a work- can have!
Thoughts are like rays of light and spread with the speed of
light.
If reprinting is generally tolerated, the publication of
books cannot but cease entirely, and then we will hear laments
such as those of that Spanish scholar, about whom the Göttingen
newspapers reported as far back as 1773 that he had 54 manuscripts
lying in his desk’s drawers and which would have to remain there
because he couldn’t find a publisher. The same would almost
certainly happen in Germany if copyright should cease to hold.
Completely revised editions would no longer be published, since
which publisher would dare to print them when reprinting would
allow thousands of pirate copies to circulate on the market.
Some branches of commerce and industry can thrive and
maintain themselves in certain of the German states, whereas in
others they fall into decline. Not so book publishing, which is
interconnected to such an extent throughout all Germany that,
once it has been undermined, no single German state is capable
of keeping it upright. If it withers, so will a number of other
branches of industry. One just has to remember how many thousand
hands, from the paper manufacturer to the bookbinder, it gives
employment to; how much freight it causes to circulate; how it
significantly increases postal revenues; how, mostly through
exchange, it causes foreign goods to enter a state but retains
the buyer’s cash within the state’s borders. It follows,
therefore, that even in this respect alone the protection of
book publishing is a matter which concerns all Germany, and
which it is by no means outside of the blessed Congress’s lofty
sphere of competence to put right once and for all.
From all this it follows irrefutably that we must choose
between two alternatives: if reprinting is unlawful, then it
should be generally forbidden, but if it is lawful, it should
be generally permitted. What must end once and for all is this
situation of agonizing uncertainty and vague notions, so that
if the latter alternative is chosen, the scholar, whom concern
for his home and family does not allow just to work for the
pursuit of glory, may in future seek another means of making
a living.
Respect prevents us from refuting one more argument which
the sophists impute to certain states, in which book publishing
doesn’t prosper and so doesn’t bring any profit to the country
anyway. No state can want to get rich in such a way, since it
would amount to the same as allowing trade in contraband goods,
to the detriment of neighbouring states.
Some governments, of course, have not only been forbidding
reprinting for a long time, but have also tried to curb it
outside of their territory, as far as they were able to. Back
in 1753, the Electorate of Hanover made remonstrances against
reprinting to the free city of Frankfurt, and in 1768 it also
lodged a serious complaint to the Privy Council of Bamberg
about the infamous reprinter Göbhardt who was based there.
The Electorate of Saxony has issued several strict ordinances
against reprinting.
Similarly, the Royal Prussian law-book also forbids reprinting.
Even as far back as 1755, Emperor Karl VI protected a foreign author
from it when a book which had been published by the Academy of
Sciences in St. Petersburg was reprinted in Nuremberg and the
Russian envoy complained about this.
Even in this recent war the noble Allies have nobly protected
institutions of learning, even in enemy territory; there is
therefore no reason to fear that, after securing so glorious a
peace, which has restored to everyone that which is his rightful
property, they will still give aid and comfort to the only
freebooters who remain, namely to pirate publishers. In many places
institutions of learning were taken under protection by no means so
that once these pupils have eventually been formed into scholars,
they will have to share the fruits of their education with the
reprinters of some states.
Abolition of the slave-trade has been made into one of the
articles of the peace treaty. Carrying off and selling people may
be more shocking, but actually it is not more despicable than
robbing people of their daily bread and selling it.
Should not, therefore, the principles of morality, as well
as those of justice, compel every state to forbid reprinting?
Doesn’t this [evil], after all, stem from more than just unlawful
greed for profit? Isn’t it often also caused by envy, malice,
spitefulness, and a desire to harm? Which state wouldn’t like to
prevent such vices? – Pütter, from a theological and juridical
point of view, calls reprinting theft, and, interestingly, no
reprinter has ever dared to sue him for libel.
If it weren’t already the case that common sense and a
feeling for justice speak so loudly against reprinting, it would
be easy to support the arguments we have put forward by invoking
the authority of the most famous jurists, philosophers, and
theologians.
Kant, Fichte, Schlettwein, Feder, Linguet, etc. didn’t
exactly judge it more favourably. The renowned Sonnenfels in
Vienna, in his capacity as head of the commission for university
studies and censorship matters, submitted a report on reprinting,
which irrefutably demonstrates its unlawfulness and harmfulness.
Back in the 17th c. the law faculties of Leipzig and Wittenberg,
including such jurists as Böhmer, Gundling, and Werner, who are
still revered today, and, after them, many later jurists have
condemned reprinting on legal grounds. Of the philosophers we
should above all mention Kant, who on the basis of the principles
of natural right declares reprinting to be illicit. That it
nevertheless has its supporters, Kant attributes to the mistake
of confusing a personal right with a corporeal right. Amongst
the many theologians who have held reprinting to be sinful, Doctor
Luther has said the following about it:
“How can this be so, my dear printers, that one so openly
robs the other of what is his? Have you too become like highway
men and thieves? or do you imagine that God will bless and nourish
you through such evil deceit and perfidy?”
He too based his judgement on an observation which no impartial
observer can fail to make:
“it is not at all fair that we should spend our efforts and
money, and that others should have the profit, whilst we only
get the expenses”
To name only one of more recent theologians, we may mention
the celebrated Reinhard’s system of Christian morality, in which
under the various categories of theft, reprinting too finds its
due place.
An opinion with which the learned men of all countries, of
all faculties, yes, even of such different temperaments as a Luther
and a Voltaire, concur so manifestly, must surely be the right one.
The joyous hope that the edifice, which the worthy envoys for
peace are constructing for centuries to come, will also be
embellished and supported by this pillar (the banning of unauthorized
reprinting), fills the breast of every honest German more than ever
before, and each one of these can confidently say with Voltaire
(in his treatise: “The Interests of the European Nations
in relation to Commerce”):
“C’est sans doute une loi également juste, nécessaire et
utile, que celle qui défend l’introduction d’un livre, dont le
droit de copie appartient à un ou plusieurs libraires de la nation.
C’est un acte de protection, que chaque état doit à l’industrie
nationale et à son commerce”.
[“That law is undoubtedly just, necessary and useful in equal
measure, which prohibits a book from being introduced into a
country, whose copyright belongs to one or several of that country’s
publishers.
It is an act of protection which each state owes to its
national industry and trade”.]
____________________________________________
* I.e. the selfishness of those German principalities which sheltered
under the protection of Napoleon (in the Confederation of the Rhine)
and did not support the allied powers against him.
Translation by: Luis Sundkvist
Source: Scanned from a reprint edition (Reutlingen: Gryphius Verlag, 1971). The original used for scanning was the copy from Universitätsbibliothek Tübingen
Citation:
Annotated Publishers' Petition to the Congress of Vienna (1815), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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2 translated pages
Chapter 1 Page 1
Memorandum
on the
Reprinting of books
including
a petition for
a German State Law
against this.
Presented with the greatest respect
to the illustrious Envoys
of the German States
at the Congress of Vienna
in the name of German book publishers.
Leipzig,
printed by Paul Gotthelf Kummer.
1814
Chapter 1 Page 2
Your Excellencies!
The tremendous importance of the affairs which, at this so long yearned
for Congress in Vienna, are to be entrusted to the wisdom of Your
Excellencies for deliberation and resolution, should not preclude a matter
from being brought to Your attention which, though seemingly of minor
relevance, is nevertheless very important for Germany’s intellectual
life as well as for a branch of her commerce.
Therefore, in the name of German book publishing, which is so closely
tied to the German republic of letters, the undersigned have dared to
present Your Excellencies with this memorandum on the unlawfulness of
book reprinting, which, although long condemned by public opinion, has
so far not been dealt with in the various German states, hoping that You
will draw up a Law for the prevention of reprinting that will be binding
for all Germany.
We remain the humble servants
of Your Excellencies,
Dr. Friedrich Justin Bertuch, from Weimar,
Dr. Johann Georg Cotta, from Stuttgart,
Johann Friedrich Hartknoch, from Leipzig,
Paul Gotthelf Kummer, from Leipzig,
Carl Friedrich Enoch Richter, from Leipzig,
Friedrich Christian Wilhelm Vogel, from Leipzig,
as the authorized representatives
of the German book publishers.
At a moment in which Right and Humanity are celebrating their finest
triumph, in which the noblest men of the German nation have gathered to
heal the Fatherland’s wounds and to mete out, on a just scale, to all
peoples and estates what corresponds to each; in this solemn moment the
German writers and book publishers may step with confidence before this
Areopagus in order to ask for a law, valid throughout all Germany,
against the reprinting of books, which has been embittering for so long
the fruits of a scholar’s diligence; which robs him of his courage to
sow where strangers are lurking to reap; which often distracts him,
through worries, from an intellectual endeavour which won’t provide any
savings for his widow and the children he leaves behind; which criminally
infringes on the duly acquired property of the honest book publisher;
which scares him [the honest publisher] away from backing any significant
enterprise and thus indirectly stifles the arts and sciences.
We are at peace! Without having to fear privateers, the merchant can
now trust his wares to the ocean: is it just against writers and publishers
that constant raiding and piracy will be allowed to continue?
According to the fifth article of the peace treaty concluded between
the great allied powers and France, the task of the blessed Congress at
Vienna is to facilitate communication between the various peoples so that
they cease to look upon each other as strangers. This facilitation, this
bringing [of the peoples] closer together, by freeing Europe’s navigable
rivers, can equally be encouraged by safeguarding rights of ownership.
It is therefore with confidence that we hope that the Congress will not
find it beneath its dignity or incompatible with its task to take into
account a matter which is of the highest concern not just for one class
of people, respected throughout all cultured nations, but also concerns
the interests of these very nations.
The question is whether it will continue to be tolerated that a
citizen of a German state should be able to appropriate the rightfully
acquired property of a citizen in another German state?
Put otherwise, the question is whether, at a time of peace, any
government should have the right to allow its subjects to cause damage
to the subjects of foreign lands?
However, before the desirable resolution of these questions can
be attained, it is necessary to examine the following:
Should a book publisher’s copyright really be seen as a property
right?
and
Does reprinting cause him damage?
What, then, is the book publisher’s copyright based on? It is based
solely on the contract he makes with the author of the book, whereby the
manuscript is entrusted to him under certain conditions.
That the writer has a right to do this, no one will surely deny,
since there is scarcely anything that can be owned more incontestably
than thoughts, intellectual faculties and the fruits thereof!
Now, since a right can only be transferred by the person who owns
it, the publisher too can only receive his from the writer, and, moreover,
in the same form that the latter was entitled to exercise it. Thus, if
the right of the writer is a right of ownership, such too is the right
which he transfers to his publisher. When he hands this over, it does
not become res nullius [lat. something which doesn’t belong to anyone],
it doesn’t suddenly become a fruit which has fallen from an ownerless
tree and which anyone can just pick up.
These statements are so clear and straightforward that one would
hardly think it possible to dispute them. They have nevertheless been
disputed, albeit only by using such arguments which, under any inspection,
turn out to be fictitious. Sophists, however, are not ashamed to use
them. It suffices to just look at these arguments for what they are worth.
First of all, the sophists claim that:
“The exclusive right to trade with a book is a monopoly, and is
therefore harmful to the common good”.
One could say with as much right that a gardener who owns a fruit
tree which is unique in its kind and sells its fruits is thereby
exerting a monopoly. If such a monopoly really did exist, then it would
have been given to the gardener by Nature, just as the writer, too,
would have received it from her. Only the writer, therefore, is a
monopolist- if one wants to put it that way- not the publisher, and who
can rob him of this monopoly? If, say, a ruler were to call upon all the
writers of his country to write a work on the same subject, they will
never all produce exactly the same work: each work will be such as could
only have been written by one of them, to whom alone it therefore belongs.
By virtue of its incontestable individual character, the work is his
exclusive property, with which he alone may trade, and, should he choose
to sell it, he may set the conditions at will. Laws against monopolies
are usually directed against the warranty of an individual to [exclusively]
produce a particular article, and are therefore not applicable to
intellectual works. In the world of letters there is no monopoly other
than that occasionally exerted by governments when they ban writing on
certain subjects, reserving for themselves alone the right to inform
the public on these. A monopoly of this kind was, for example, exerted
by Napoleon with his bulletins.
The copyright should not be confused with the right to sell books.
The latter belongs to anybody: one can find a book which has been published
in Berlin, in Leipzig, Vienna and anywhere else, often cheaper in one
place than in another. Only the copyright is a monopoly of the writer,
which he can exert himself or transfer it to someone else.
Now, if a [particular] publisher alone was authorized to purchase
a copyright, this authorization might well be given the odious name of
a monopoly, but, in fact, every book publisher was at liberty to enter
into negotiation with the author. Each publisher could have bought the
latter’s rights, and so this transaction was not a monopoly.
The sophists’ second argument is that:
“After buying a book one becomes its owner, and surely everyone
can use his property as he wishes!”.
Quite so, as long as it does not cause damage to someone else.
The buyer has bought the book, but not the copyright. He can read the
book, or tear it apart, or burn it; but is he also allowed to throw
the burning book into his neighbour’s granary? Moreover, does he own
this property with more rights than those transferred to him by the
seller?
One might object that when selling a book, the publisher doesn’t
explicitly reserve for himself the right to reproduce the book, but
this proviso actually goes without saying. There are after all examples
in Roman law which can well be applied here. E.g. someone who had
bought a slave without peculium [lat. private property], was not
allowed to lay claim to the latter, even if it had not been explicitly
excluded from the sale. Several cases can occur in which the buyer
does not acquire all the possible privileges that one can think of
in relation to the item he has bought. Let us say, a nobleman has
sold to his peasants some parts of his land without mentioning the
hunting right which covers the whole estate: does this mean that
every buyer can now lay claim to this right?
Reprinting has a most striking similarity to counterfeiting or
the forging of banknotes. Every owner of minted money can do with it
what he wants, except for recoining it. The person who has the right
to mint coins is, so to say, like a publisher, and the right of
coinage is his copyright. Just like a book, a coin is issued under
the tacit condition that it may not be reproduced by counterfeit,
even if its [metal-]content remained the same. All excuses one can
possibly think of in support of a reprinter, can also be applied to
a forger or counterfeiter. True, the latter is usually a private
person who dares to encroach on a sovereign right, but if, say, a
sovereign power were to order the counterfeiting of another sovereign’s
coin, would the latter just allow this to happen?
A writer may also be fittingly compared to a preacher: both
address the people- whether orally or in writing, that doesn’t
really make a difference. The former is the owner of his writing,
the latter of his speech. Is it, then, permissible for a speed clerk
to hide in some corner of the church, take down the sermon and have
it printed without asking the preacher? – It is precisely in this
way that a reprinter operates. Whether he steals a work from the
author’s lips, or from his feather, amounts to the same. The writer
had designated it for his readers alone, the preacher for his
listeners; the former with the understanding that they would acquire
it through purchase, the latter on condition that they would attend
the church. No one is allowed to reproduce such a work for others
who haven’t met these conditions.
Doesn’t the publisher spread the costs of the author’s fee and
printing expenses, as well as the expected profit, amongst all the
published copies? Thus, he cannot surely surrender the copyright
with each of these copies he sells! The copyright has an altogether
different price. Those who reprint a book are pretending to the
profits of altogether quite different wares, of which they have
only bought one anyway. Someone who buys a medicine at an apothecary’s
shop does not automatically acquire the apothecary’s right to
dispense [this medicine].
Any kind of reproduction of a work is unlawful. Even if a buyer
found it more profitable not to reprint a book, but, rather, to have
it copied by hand a thousand times, this would still be the same
infringement of copyright. If, let us assume, Schiller had sold
the manuscript copy of one of his great works to a theatre in Berlin
or Vienna, he would thereby have been giving this theatre the right
to read and stage his play, or to tear it up or burn it, but by no
means the right to reproduce the manuscript copy on the theatre’s
own terms and sell it to someone else. We find the same relationship
between the publisher of a book and the buyer. A theatre director
can convey Schiller’s play from the stage to as many spectators as
can fit into his theatre; the owner of a book can read it to any
gathering of people he wants, or lend it to any number of friends
for as long as they require to read it, but that is the limit of
their rights as far as communication of the work is concerned.
The same holds for the music of a composer. The rights of the poet
[playwright] and composer in such cases have long been established:
why then should the writer, who arranges for his work to be printed
under equal conditions, be the only one who pleads in vain for the
same justice? Is the printed copy of a book after all not the same
as a manuscript copy?
Is it not the case that everywhere where someone who uses his
property to the detriment of others, that person has a charge
brought against them either for negatoria [jur. lat. compensation?],
or for de damno infecto [jur.lat. undoing of losses]? Are
there not cases in which just propter damnum privativum, in sola
interceptione lucri consistens, actio doli [jur.lat. on account of
private losses, consisting merely in the taking away of profit, a
lawsuit for deceit] can be initiated?
The sophists argue thirdly that:
“The reprinter is surely just doing what someone does when he
imitates a manufactured article, indeed any physical object, or a
work of art”.
This comparison is inappropriate. Someone who imitates a thing
can only give [his imitation] the form of that which he is imitating,
but he is not allowed to steal the required material from the
inventor. He has to obtain this by himself and process it with as
much effort as the original manufacturer. The person who reprints
a book, however, is hardly concerned with the form: what he makes
use of is the same material, the same raw material, since paper and
printing do not constitute the essential part of a book.
The manufacturer of replicas has the same expenses as those
borne by the original manufacturer, but not so the reprinter, who
doesn’t risk anything, who just appropriates the benefits, without
bearing the inconveniences.
If, when comparing manufacturers and reprinters, all that
mattered was the imitation of an object, the comparison would
certainly hold good, but, in fact, it is often the object itself,
as is the case here, which makes all the difference. If a cloth
manufacturer obtains a privilege which grants him the exclusive
right to produce a certain type of cloth, this may mean that the
industry of a whole region is sacrificed for his sake. But when a
Lafontaine has the exclusive right to produce copies of his fables,
this by all means does not prevent La Motte from also writing fables.
Therefore, the comparison of reprinting to the imitation of a
work of art is also inappropriate. The latter certainly entails
representing the idea or even the spirit of the work of art being
imitated, but it is never really achieved in the same way that the
artist had conceived it. A painting, a statue can never be copied
as exactly as letters can. A painting is itself the work of art,
whereas a book is just the means by which the work is presented to
the [reader’s] mind. Thus, those who imitate a painter’s brushstrokes
won’t automatically come up with his work of art, but those who copy
the signs by which a writer has made himself understood, are
appropriating his work exactly as it originated in the author’s
mind. Imitations of works of art do not yield the original, which
experts will always prefer anyway, but reprinting does yield the
original. There are many inferior porcelain manufacturers, about
whom the factory at Meissen has no need to complain, since the
quality of its raw materials guarantees its sales. But there is
not a single inferior reprint which does not also purvey the raw
material of the reprinted work. On the other hand, if a hundred
playwrights all tried to write their own "Maria Stuart",
that would not harm the sales of Schiller’s works at all.
Fourthly, the sophists argue:
“If reprinting were unlawful, why should there have to be
privileges [for book publishers]?”
Here we have to ask: what does such a privilege consist of?
It is an assurance from the authorities that they will help the
publisher in defending his copyright. This means that this right
(of ownership) has already been recognized by the authorities,
since they would not grant privileges for things that are public
property. A [publisher’s] privilege is much like the safe conduct
one used to procure when travelling on unsafe highways in the Middle
Ages. When the traveller made his way without a safe conduct, this
certainly did not mean that the authorities of those times conceded
bandits the right to rob him, just as in our own times a sauve
garde does not give enemy troops the right to plunder.
When book printing was invented and there were already multiple
[handwritten] copies of every book available then in the hands of
various people, everyone who was the rightful owner of such a copy,
could lawfully have it printed if the author or his heirs were no
longer alive. But the fact that, already then, the exclusive copyright
was considered a right of ownership with which one could be endowed,
is demonstrated by the privileges which started being granted from
1494 onwards. For the governments of those times took the place, as
it were, of the writer who was no longer alive by selling or presenting
the copyright of his work to a publisher and inflicting considerable
fines on [unauthorized] reprinters of the work. If the governments of
those times could transfer their right [of ownership], though their
right may sometimes have been questionable, and demand that their
prohibition be observed, how can the governments of today fail to
protect the same, but in this case unequivocal, right of the writer?
A quite similar case, in which the government exerts the rights
of the author, still occurs daily with the court newspapers, whose
copyright is transferred to the publisher in exchange for a tax or
a rent payment (in effect, an author’s fee). What would happen if
someone reprinted an issue of such a newspaper as soon as it had
come from the press, and sold it for a lower price, since he didn’t
have to pay for the copyright? Wouldn’t the government forbid such
reprinting? And is its right to do this any different or better than
the writer’s? Would it not, just like the latter, point to the losses
suffered by the rightful publisher because of this? What the authorities
can forbid when they are harmed by it, can they tolerate it even if
it should benefit them?
Book [publishing] privileges are superfluous as far as the law
is concerned, and reprinting isn’t just unlawful because of the
privilege which may have been conferred on a particular work.
Reprinting is in itself unlawful- what the privilege is meant to
do, as in various other cases, is just to reinforce further an
already established right.
If the reprinting of a non-privileged book were lawful, why does
one never find reprinted copies in the same territory in which the
original was printed? Why does a publisher only rarely request a
privilege from his sovereign ruler, even though reprinting is not
explicitly forbidden by the laws of his state? – Because in such
a case his rights would be protected anyway. How can, though, a
state refuse to grant the same justice to the subjects of a foreign
state as it demands for its own subjects and recognizes as well
founded?
The fifth and last fictitious argument of the sophists is:
“The fear that book prices will rise”.
This fear is unfounded. Even if all book publishers were to
conspire so as to raise book prices, surely it would be easy for
the authorities to take measures to stop such mischief! There are
strict regulations for food and bread prices- why, then, should
intellectual nourishment, which for civilized nations is just as
indispensable, not be subject to similar laws?
Pütter in his time remarked: if cheap prices were sufficient
to vindicate reprinters, one might as well treat those who sell
stolen goods as agents for the common good! He even cites various
examples in which the reprinted copy was sold for a higher price
than the original.
If the lament of a couple of hundred people who, without
stopping to think about justice, fairness and general benefit,
like to buy their books for a few pennies less, could so much as
cause the slightest tilt to the balance, then one really should
have stifled book printing altogether as soon as it emerged,
because this invention caused thousands of copyists to lose not
just a few pennies, but their very living. If these buyers of
books genuinely love the arts and sciences, they will find ways
of recovering this small sum by saving on other pastimes, but
those copyists, if they had no other trade, would end up as
beggars. And yet their laments were ignored, since they were
drowned out by the general rejoicing at the advantages brought
by the new invention, just as the laments of those who like to
buy cheap would fade away amidst the general rejoicing of all
upright Germans if the requests which have been put forward
here do not remain unfulfilled.
Surely the buyer of a reprinted copy must at some point,
during his reading of the work, have been disturbed in his
enjoyment by the following thought: “By saving a small sum of
money I may well have contributed to the writer, whose intellectual
work has been providing me with such agreeable pleasure, glancing
at his children with a worried sigh and throwing away despondently
the pen which he had been about to take up again, in order to offer
me a new, similarly enjoyable work”? – What good would the
regeneration of our times be, if the despicable selfishness which
we were rightly accused of,* should remain undestroyed?
Of course, for the reprinter it is easy to sell cheaply since
his conscience isn’t worth anything to him and his expenses on
printing are just to pay for the outer shell and not for the kernel.
It is a well-known fact that a publisher often has to sell
several hundred copies of a work before he can recover just the
fee he paid to the author. The reprinter, on the other hand, who
just has to pay for one of the authorized publisher’s copies and
whose insignificant printing expenses are easily recouped, makes
a clear profit on each of the reprinted copies he sells, without
stopping to think whether the writer, whose work is making him
rich, should be rewarded for his effort, diligence and genius.
Without sowing, he sells the grain, even before the sower has
gathered in enough to make good his seed-corn.
One should also take into account that in the case of many,
and precisely the most useful books, the publisher can hardly
ever count on quick sales. Only he knows the value of the book
he is printing; he looks upon it as an investment which, even
if only after several years have passed, will more than pay itself
off. Being convinced of this, he is prepared to advance considerable
sums and helps bring to light a work which, without these advances,
might never have appeared. Thus he does society and learning alike
a good turn, but lo and behold! suddenly a stranger comes along
and robs him of his investment and rightful gains. Is this to be
his reward?
What if during the printing the author were to die without
having completed his work? Will the devious reprinter compensate
the publisher for his losses? – How can the publisher know
beforehand whether a book which is fine in all respects will
actually sell well? The reprinter, in contrast, can choose from
all published books and he will of course only pick those that
he knows won’t be difficult to sell. But even the small gain which
the lower price of reprinted copies represents for the buyer,
will vanish as soon as the publisher doesn’t have to fear
reprinting any longer. A publisher who can confidently reckon
with selling his high quality publication in all those states
where at the moment unauthorized reprinting makes such a sale
impossible, will, in future, print 2000 copies where he would
otherwise just have printed 1000. Assuming he had had to sell
those thousand copies for 1000 thalers, in order to cover expenses
and make a net profit- in future he might well be able to sell
those two thousand copies for just 1500 thalers. Thus, it is
actually reprinting which makes books more expensive, rather
than lowering their price. If the merchant who has garnered
stocks of grain were able to exterminate the worms and mice
in his granaries, the prices for his grain would be lower.
All that remains is for us to point to the general
drawbacks that arise from reprinting. How many scholarly works
have to remain locked up in the author’s desk, either because
no publisher can pay the requested price for them, due to fear
of reprints, or because, more generally, the spirit of enterprise
is paralysed by reprinting: the publisher has to limit himself
to bringing out novelties and has no energy left for a work
which will start yielding profits only after some years. If,
however, one were to protect his rightful gains on all that
he has printed, this would enliven his strength and enthusiasm
to publish such works which will bring him more honour than
profit. If each year one such work remains unprinted, just so
Mrs A. and B. can buy their books cheaper, this is enough to
cause irreparable damage, since who can calculate the beneficial
consequences which the dissemination of a single useful work-
often even just of a single thought in such a work- can have!
Thoughts are like rays of light and spread with the speed of
light.
If reprinting is generally tolerated, the publication of
books cannot but cease entirely, and then we will hear laments
such as those of that Spanish scholar, about whom the Göttingen
newspapers reported as far back as 1773 that he had 54 manuscripts
lying in his desk’s drawers and which would have to remain there
because he couldn’t find a publisher. The same would almost
certainly happen in Germany if copyright should cease to hold.
Completely revised editions would no longer be published, since
which publisher would dare to print them when reprinting would
allow thousands of pirate copies to circulate on the market.
Some branches of commerce and industry can thrive and
maintain themselves in certain of the German states, whereas in
others they fall into decline. Not so book publishing, which is
interconnected to such an extent throughout all Germany that,
once it has been undermined, no single German state is capable
of keeping it upright. If it withers, so will a number of other
branches of industry. One just has to remember how many thousand
hands, from the paper manufacturer to the bookbinder, it gives
employment to; how much freight it causes to circulate; how it
significantly increases postal revenues; how, mostly through
exchange, it causes foreign goods to enter a state but retains
the buyer’s cash within the state’s borders. It follows,
therefore, that even in this respect alone the protection of
book publishing is a matter which concerns all Germany, and
which it is by no means outside of the blessed Congress’s lofty
sphere of competence to put right once and for all.
From all this it follows irrefutably that we must choose
between two alternatives: if reprinting is unlawful, then it
should be generally forbidden, but if it is lawful, it should
be generally permitted. What must end once and for all is this
situation of agonizing uncertainty and vague notions, so that
if the latter alternative is chosen, the scholar, whom concern
for his home and family does not allow just to work for the
pursuit of glory, may in future seek another means of making
a living.
Respect prevents us from refuting one more argument which
the sophists impute to certain states, in which book publishing
doesn’t prosper and so doesn’t bring any profit to the country
anyway. No state can want to get rich in such a way, since it
would amount to the same as allowing trade in contraband goods,
to the detriment of neighbouring states.
Some governments, of course, have not only been forbidding
reprinting for a long time, but have also tried to curb it
outside of their territory, as far as they were able to. Back
in 1753, the Electorate of Hanover made remonstrances against
reprinting to the free city of Frankfurt, and in 1768 it also
lodged a serious complaint to the Privy Council of Bamberg
about the infamous reprinter Göbhardt who was based there.
The Electorate of Saxony has issued several strict ordinances
against reprinting.
Similarly, the Royal Prussian law-book also forbids reprinting.
Even as far back as 1755, Emperor Karl VI protected a foreign author
from it when a book which had been published by the Academy of
Sciences in St. Petersburg was reprinted in Nuremberg and the
Russian envoy complained about this.
Even in this recent war the noble Allies have nobly protected
institutions of learning, even in enemy territory; there is
therefore no reason to fear that, after securing so glorious a
peace, which has restored to everyone that which is his rightful
property, they will still give aid and comfort to the only
freebooters who remain, namely to pirate publishers. In many places
institutions of learning were taken under protection by no means so
that once these pupils have eventually been formed into scholars,
they will have to share the fruits of their education with the
reprinters of some states.
Abolition of the slave-trade has been made into one of the
articles of the peace treaty. Carrying off and selling people may
be more shocking, but actually it is not more despicable than
robbing people of their daily bread and selling it.
Should not, therefore, the principles of morality, as well
as those of justice, compel every state to forbid reprinting?
Doesn’t this [evil], after all, stem from more than just unlawful
greed for profit? Isn’t it often also caused by envy, malice,
spitefulness, and a desire to harm? Which state wouldn’t like to
prevent such vices? – Pütter, from a theological and juridical
point of view, calls reprinting theft, and, interestingly, no
reprinter has ever dared to sue him for libel.
If it weren’t already the case that common sense and a
feeling for justice speak so loudly against reprinting, it would
be easy to support the arguments we have put forward by invoking
the authority of the most famous jurists, philosophers, and
theologians.
Kant, Fichte, Schlettwein, Feder, Linguet, etc. didn’t
exactly judge it more favourably. The renowned Sonnenfels in
Vienna, in his capacity as head of the commission for university
studies and censorship matters, submitted a report on reprinting,
which irrefutably demonstrates its unlawfulness and harmfulness.
Back in the 17th c. the law faculties of Leipzig and Wittenberg,
including such jurists as Böhmer, Gundling, and Werner, who are
still revered today, and, after them, many later jurists have
condemned reprinting on legal grounds. Of the philosophers we
should above all mention Kant, who on the basis of the principles
of natural right declares reprinting to be illicit. That it
nevertheless has its supporters, Kant attributes to the mistake
of confusing a personal right with a corporeal right. Amongst
the many theologians who have held reprinting to be sinful, Doctor
Luther has said the following about it:
“How can this be so, my dear printers, that one so openly
robs the other of what is his? Have you too become like highway
men and thieves? or do you imagine that God will bless and nourish
you through such evil deceit and perfidy?”
He too based his judgement on an observation which no impartial
observer can fail to make:
“it is not at all fair that we should spend our efforts and
money, and that others should have the profit, whilst we only
get the expenses”
To name only one of more recent theologians, we may mention
the celebrated Reinhard’s system of Christian morality, in which
under the various categories of theft, reprinting too finds its
due place.
An opinion with which the learned men of all countries, of
all faculties, yes, even of such different temperaments as a Luther
and a Voltaire, concur so manifestly, must surely be the right one.
The joyous hope that the edifice, which the worthy envoys for
peace are constructing for centuries to come, will also be
embellished and supported by this pillar (the banning of unauthorized
reprinting), fills the breast of every honest German more than ever
before, and each one of these can confidently say with Voltaire
(in his treatise: “The Interests of the European Nations
in relation to Commerce”):
“C’est sans doute une loi également juste, nécessaire et
utile, que celle qui défend l’introduction d’un livre, dont le
droit de copie appartient à un ou plusieurs libraires de la nation.
C’est un acte de protection, que chaque état doit à l’industrie
nationale et à son commerce”.
[“That law is undoubtedly just, necessary and useful in equal
measure, which prohibits a book from being introduced into a
country, whose copyright belongs to one or several of that country’s
publishers.
It is an act of protection which each state owes to its
national industry and trade”.]
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* I.e. the selfishness of those German principalities which sheltered
under the protection of Napoleon (in the Confederation of the Rhine)
and did not support the allied powers against him.
Translation by: Luis Sundkvist