# Primary Sources on Copyright - Record Viewer

PRIMARY SOURCES

ON COPYRIGHT

(1450-1900)

Bluntschli: On Authors' Rights, Munich (1853)

Source: Scanned from a copy held in the Frankfurt Max-Planck-Institut für Europäische Rechtsgeschichte.

Citation:
Bluntschli: On Authors' Rights, Munich (1853), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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184


Chapter Six


On Author’s Rights


§. 46


1. The History and Nature of Author’s Rights


      1. The concept of author’s rights belongs to modern jurisprudence. Its
earliest origins are already to be found in


____________________

1) French book publishers’ statute of 1618, Art. 33 (see Renouard I, p.120):
“All book publishers, printers and binders are to be forbidden from reprinting
those books for which a privilege from Your Majesty has been obtained. All
book publishers, printers, and binders of this city of Paris will also be
forbidden from obtaining any extension to their privileges for the printing of
books from the said publishers if they do not provide compensation for the
books whose privileges have expired.”

2) Verdict on [book] privileges, 1777 (Renouard I, p.167): “His Majesty has
recognized that a book publishers’ privilege



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the fifteenth century, but it is not until our own age that the
principle underlying author’s rights has finally been identified.
There is, however, still some work to do before this principle
attains full recognition.
      At first it was only individual literary works which were
protected by privileges from unauthorised reprinting. A universal
right was not yet recognized, and the person carrying out such
unauthorised reprinting could be threatened with punishment only
for the reason that he had disregarded the prohibition contained
in the privilege. The oldest extant privileges of this kind were
issued in the years 1494-96 by the Republic of Venice, the Duke
of Milan, and the Senate of the Free Imperial City of Nuremberg.
      It was only gradually- and rather tentatively, for that matter-
that the jurisprudence of some countries began to take care of the
rights of authors and their publishers. However, even the judges
who did this had all sorts of doubts about the legal form in which
they were to protect these rights. For a long time many scholars
of jurisprudence disputed- and some still do so to the present day-
the existence of these


__________________________

[2) cont.] is a concession which is founded in justice and whose
purpose, if it has been granted to the author, is to remunerate him
for his work, and, if it has been granted to the publisher, to
guarantee that he will recover any advances or royalties paid to
the author as well as his expenses. [His Majesty has also recognized]
that this difference in the motives which underlie particular
privileges must necessarily imply different lengths of time for
which they are to be valid.”

3) Finding of the English House of Lords, 1774 after discussion by
the Chief Justices (see Renouard I, p.236): “Question: Does the
author of a book or any kind of literary work have, according to
common law, the exclusive right to be the first to have it printed



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rights if they weren’t protected by special privileges or explicit
laws. Eventually, legislation took these rights in hand,
although the recognition and protection which it gave to them at
first was by no means perfect. With time, though, it attained a greater
degree of perfection in this. Nowadays author’s rights are
among the universally recognized human rights.
      2. Now that author’s rights have been confirmed and classified as
a universal right by legislation, and are recognized
by jurisprudence, it is possible to distinguish four stages in the
history of their development:
      a) [considering them] from the point of view of a privilege.
Whilst the latter had before been conferred in individual cases, it was
now granted universally. However, the form of a preferential
concession
and a special right was nevertheless
retained, even though what was actually being protected was a universal
right. That is, the need for protection of these rights was felt, but
there was no understanding as yet of their nature.


_________________________

[3) cont.] and published? And is he entitled to sue anyone who prints,
publishes, and sells his work without his authorisation? Nine Lords
answered in the affirmative, one in the negative.”

4) Prussian State Law, I. 11. §. 996: “The publishing right is the
authorisation to reproduce a written work by printing and to sell it
exclusively.” §.998: “As a rule a book publisher can only acquire a
publishing right by entering into a written contract thereon with the
author.”

5) Napoleonic directive of 3 February 1810, Art. 39:




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      b) from the point of view of a publishing right, which
was often tied to the aforementioned privilege. In this consideration the
interests of the publishers were uppermost and their publishing
right was to be safeguarded. However, this was a most unsatisfactory approach
because it failed to take into account that the authorised publisher and
the unauthorised reprinter have a different right only by virtue of
their different relationship to the author, and that a monopoly granted
to the former without consideration for the author, merely for the sake
of the priority of the commercial enterprise, lacks any proper foundation.
      c) the point of view of intellectual or literary ownership,
which is championed above all by writers, but is of no use juristically.
      For common parlance, which calls a person’s control over his nerves,
his hands, or his thoughts, ownership and applies this term to anything
which belongs to the person and is peculiar to him, certainly
makes sense, but it simply covers too many different kinds of circumstances
for it to be used in civil law. For jurisprudence


_____________________

[5) cont.] “The right of property is guaranteed to the author and his widow
during their lifetimes, if the matrimonial circumstances of the latter
entitle her to this right, and to their children for twenty years.” Art. 40:
“Authors, whether they be French citizens or foreigners, may cede their right
to a printer or publisher, or to any other person, who is then substituted
in their place, for them and their legal successors, in all that is stated
in the preceding article.”
6) English law of 1814, Art. 4: “The author of a book and his proxies have
for the duration of 28




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ownership can be nothing else but a property right, that is, the
complete possession exerted by individual persons over physical objects. An
author’s right to his work is, however, not of this kind, since the work is
something altogether quite different from the manuscript and the printed
copies of the book. The latter are indeed objects which fall under
the ownership of individual persons, but the work as an intellectual product
is attached neither to a particular manuscript, nor to a particular book. It
can also exist without having been written or printed, namely, as a spoken
lecture or a speech. The author’s right is, therefore, not affected in the
least if, say, his manuscript has been destroyed and all copies of the
printed book have come into the hands of private owners. As an intellectual product
his work has an essentially unphysical character. The living word
is its truest expression.
      Moreover, the author’s right is also different from ownership in the sense
that the former always refers back to the author as a specific individual
person
,


______________________

[6) cont.] years from the first day of publication the exclusive right to print
and reprint it. If after the expiration of this period the author is still alive,
he retains this right for the remainder of his life.”

7) Kant (Works V. 8. 349): “In a book as a written work the author is speaking
to his reader, and the person who has published it speaks not for himself through
the copies he has printed, but always and entirely in the name of the author.
Whoever may happen to own a copy of these words of the author, whether in
manuscript or in print, the use of this copy for one’s personal use or for
commercial purposes




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from which it can never dissociate itself completely, as long as it exists as
such, whereas ownership is not concerned with the individual person of the owner.
      Finally, the direction, and consequently the content, of an
author’s right is different from the direction and content of ownership. The owner
wants to have the thing for himself; an author, on the contrary, wants
to communicate his work to the public, as long as it can be done in an
ordered manner and his authorship can be respected. So all we have left to consider is:
      d) the fourth point of view, according to which the author’s right is
seen not as a property right, but, rather, as a personal right of the author,
as the right of the originator.
      It is to the philosopher Kant that the merit belongs of having been the first
to clearly point to the personal nature of author’s rights. In other respects, though,
his exposition of the matter is insufficient. The French jurist Renouard, in an
excellent treatise on author’s rights, has greatly furthered our understanding of this
question, although even he concentrates too much on


_______________________

[7) cont.] is an activity in which any owner of the copy can engage in his own name
and as he wishes. However, allowing someone to speak publicly is the same as speaking
in that person’s name. The publishing right is therefore a personal affirmative right".

8) Prussian law of 1837: "In order to guarantee works of scholarship and art the
protection that they require, we hereby decree that: Art. 1 The right to reprint
afresh, entirely or partially, a work which has already been published is reserved
to its author or to those who have been authorised by him to carry this out."




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the property right aspect of author’s rights and thus ends up describing
these as a kind of privileged monopoly, albeit one that is fully
deserved by the author and holds universally. This means that he too
overlooks the personal nature of the author’s right.
      3. The most important recent laws passed in the German lands are:
            a) the federal directive of 9 November 1837, which, in a limited way,
            nevertheless protects authors for a certain time from unauthorised
            reprinting;
            b) the Prussian law of 11 June 1837, which gives this protection to a
            greater extent;
            c) the Bavarian law of 13 April 1840;
            d) the federal directive of 22 April 1841 with respect to musical and
            dramatic works;
            e) the federal directive of 19 June 1843, in which author’s rights are
            recognized more comprehensively.
Of the laws passed recently in foreign countries we should mention above all:


________________________

9) Bavarian law of 1840, Art. 1: “Works of literature or art may not be published
without the consent of the author, his heirs or legal successors, nor may they
be reproduced by mechanical means where no original adaptation of the product is
involved.”

10) Draft of the Zurich statute-book, §.93: “Writers and artists have an exclusive
right to the publication of their literary or artistic products.”



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            a) the English (the first Act of Parliament on “copyright” was passed in
            1710) Acts of Parliament of 29 July 1814, 9 September 1835, 28 July 1838
            and 1845;
            b) a whole series of Napoleonic laws, which are given in detail by
            Renouard;
            c) the North American federal law of 3 February 1831;
            d) a Russian law (Compendia X, 741, 740);
            e) the draft of the Zurich statute-book of 1847, §§.93ff.
      The principal work is Renouard, Traité des droits d’auteurs, Paris 1838,
1839, 2 vols- References in Mittermaier’s Journal of foreign legislation and jurisprudence,
I, p.324; XI, p.194; XII, p.461; XIII, p.1; XIV, p.481- J. Jolly. Theory of
Unauthorised Reprinting
, Heidelberg 1852- Laboulaye in the Revue
de législ. et de jurispr. par Wolowsky
, 1852, p.129.

§. 47


2. Nature of Author’s Rights

      1. First of all it must be emphasized that a work as an intellectual
product
belongs to the author who has created it not as
a physical object- for that is not what the work is-


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1) Directive of the German Confederation of 1845: “1) The protection against
unauthorised reprinting and any other kind of mechanical reproduction which was
accorded for at least ten years from the appearance of a literary or artistic work
by Article 2 of the federal directive of 9 November 1837, is now, throughout all
the German federal territories, to be granted for the lifetime of the authors of
these literary or artistic works, and for 30 years after their deaths.”


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but as a revelation and expression of his personal intellect.
Between author and work there is a natural relationship, just as between creator
and creature, and it is the former’s natural right that this
relationship be respected.
      2. The author, therefore, has the right to keep his work to himself and
prevent it from being published if it is against his wishes. Simultaneously, he
has the right to publish it and to determine the manner and time of its
publication and reproduction.
      Thus, even if the reprinting of a work by a third person, without the
authorisation of its author, were not to cause financial loss to the latter
and were perhaps even to secure him profits, this would still be a violation
of the author’s rights, for no one has the right to make the author speak to
the public against his will, that is, to expose a part of his personality, his
name, and his author’s honour to the community. This can cause damage to the
author’s position and reputation of far greater import than that of a missed
royalty.
      3. The property value which the work has and to which the author,
again, is entitled before anyone else, is therefore not the innermost core of
the author’s right; its significance for legal judgements is, rather, a
secondary one, although in practice this aspect, which gives the author’s right
a certain affinity to ownership, is certainly the most important. One
must also admit that the whole notion of author’s rights has started to become
clear precisely thanks to the growing



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material interest involved which has called greater attention towards these
rights and brought them into sharper focus. It is therefore quite conceivable
that a work only acquires a property value when its author has transferred
his rights, without any claims to royalties, to a publisher, i.e. that the
work acquires its property value in the person of the publisher. However,
even in such a case the essential part of the author’s right was still
vested in the author’s person and could only to a limited extent be
transferred to the publisher.
      4. Once the author has published his work, the nature of the author’s
right does change to a certain extent. The work is no longer exclusively bound
to the author’s person; rather, communication has made it, depending on its
intellectual content, into a public property of the community of
readers. From that point on the rights of the community must also
be taken into account. As Renouard says, “One cannot communicate one’s thoughts
and at the same time keep them exclusively to oneself”. The task of legislation
and jurisprudence is, therefore, to properly distinguish the rights of both the
author and the public with respect to the published work.
      5. Ownership lasts as long as the object which is owned exists. The author’s
right, however, does not last as long as the work is in existence. At first
consideration for the author’s person is certainly paramount, but with the
passing of time the work falls entirely to the community and the author’s right
expires.
      Now, the principle is generally recognized that the author’s right in any
case lasts for as long as



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as the author is still alive. This means that he stays in control of his
communications to the public, insofar as this is still possible. However,
modern jurisprudence extends this right to beyond his death and does so
for good reason. For if author’s rights were restricted to the author’s
lifetime, as personal rights usually are, their duration would be completely
uncertain and because of this it would be much harder for the author to
secure, by contract with a publisher, the property value to which he is
entitled. Moreover, his family would be left out of consideration in the
case of the author’s premature death, which is all the more unjust given
that the public, whom the latter has done a service by his work, gains in
[spiritual] enrichment, whereas the author’s family, which had probably
been uppermost in his concerns, would suffer an additional loss. For this
reason the author’s person is honoured in his work also beyond his death
in the sense that his family (i.e. his successors) are guaranteed the
benefit of the author’s rights for a certain period: namely, for as long
as the author’s person is still fresh in people’s memory and the author is
thereby effectively still alive in the next generation (i.e. that of his
successors). It is this idea which underlies the legally specified period
of thirty years after an author’s death.

§. 48


3. Object of the Author’s Rights

      1. Author’s rights refer above all to works of literature, that is,
literary products. It is in the first instance irrelevant whether these
works are of a scholarly or



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poetic kind, whether they are first-rate or poor, whether they are original
works in the proper sense of the word or whether they are translations and
adaptations, as long as the work can be considered to be the originator’s
own to the extent that it is legitimate to speak of authorship. An author’s
right can therefore be claimed for compilations, e.g. anthologies
of poetry, collections of letters,* but only if these testify to independent
intellectual work on the part of the their originator, e.g. where the latter
has carried out a systematic selection and ordering of the poems etc. If,
however, an older, well-known work, for which author’s rights no longer exist,
is reprinted with just a few amendments here and there, then such publication
cannot qualify for a new author’s right. But notes and commentaries
drawn up to elucidate someone else’s work are to be protected as a literary
product in their own right.
      2. The spoken lectures of university professors and other
similar scholarly talks also count as literary products. “To expose a professor’s
lecture to exploitation by speculators


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1) Prussian law of 1837, Art. 3: “The reproduction of the following texts
without permission from the author or his legal successors is to be treated
as equivalent to unauthorised reprinting: ¦

*) Jolly (p.121) does not want to concede an author’s right even for collections
of letters because, as he argues, letters cannot be counted as literary products;
rather, they belong to the sphere of individual communication. This argument,
however, does not hold for a collection of letters which has been drawn up
for communication to the public, and even in the case of individual letters its
implications are not those Jolly postulates. See below §. 89, Nr. 9.





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means not only to expose his scholarly reputation to the unreliability and
incompetence of whoever may write down his lecture with such speculation
in mind; it also means that the professor is prevented from making additions
to, and revisions of, his works, from developing his initial ideas and
improving on the hurried formulations which public speaking entails. Moreover,
the fruits of his diligence are appropriated by the undeserving hands of
another.” (Renouard II, p.145) The same applies to the publication of a
priest’s sermons or the speeches of a statesman or lawyer. There is, though,
one important qualification: the public speeches of a member of the
legislative body or those made by a lawyer at a trial belong to the public
and the community to such an overwhelming extent that in such cases no
individual author’s right can be allowed to prevent their divulgation by
newspapers or by special copies undertaken by third persons, e.g. for
political purposes.


________________________

a) of any kinds of manuscript;
b) of sermons and academic lectures which have been taken down in writing,
irrespective of whether they are published under the true name of the author
or not.”

1) The question as to whether a public speaker who publishes a collection
of his speeches as a coherent testimony of his individual spirit thereby
acquires an author’s right to this work is, however, open to debate.
Renouard (II, p.141) goes further still and categorically excludes
parliamentary speeches from author’s rights. Similarly, the English law of
1835, Art. 3, which does not even grant professors an author’s right to
their university lectures. Contrast with Pardessus, Droit commun, §.165.



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      3. There are, exceptionally, works which despite being literary
products nevertheless do not qualify for author’s rights. These are such
works which by virtue of their function belong entirely to the public and
the community and so do not come into the sphere of civil [private] law:
e.g. laws, decrees, official reports, legal verdicts and such like.
      4. By analogy author’s rights have been extended in recent times to
include musical works and products of the fine arts.
The more profound justification for this lies in the need to respect the
creator’s person in his work; contingent to this is the property value
which such works of art also have. It is precisely outstanding painters,
for example, who, apart from any considerations of royalties, will feel
offended in their artist’s honour if their paintings are reproduced in an
unsatisfactory manner by poor lithographic prints and


_____________________

2) Bavarian law of 1840, Art. 1: “Lectures or talks which are given for the
express purpose of instruction or entertainment are to be treated as literary
products”

3) Draft of the Zurich statute-book, §.100: “No single citizen can claim
author’s rights for laws, decrees or verdicts issued by the authorities.
The State can lay claim to author’s rights for compilations which it
publishes only for 15 years from the date of first publication”

4) Federal directive of 23 July 1841: “1) The public performance of a
dramatic or musical work, in its entirety or in abbreviated form, can only
be carried out with the permission of the author, his heirs, or any other legal




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are published in this way. But even for such works the author’s personal right
also expires after a certain period after his death. Similarly, it is only
natural that those works of art which are intended for the delectation of the
public, such as public monuments, are also excepted from author’s rights.
      Drawings of a more scientific rather than artistic nature, such as maps,
anatomical illustrations, and such like, are also counted as works of art
qualifying for protection, as do the construction plans of architects.
Author’s rights also apply to sculptures, woodcuts, and
engravings. On the other hand, they do not apply to buildings constructed
by architects, for although they too are works of art, they are so solid, so
impossible to transfer, and in their exterior forms are so clearly exposed
to the public that it seemed both inappropriate and superfluous to protect
these against reproduction.


_______________________

[4) cont.] successors, as long as the work hasn’t been published in printed
form”

5) Bavarian law, Art. 2: “Exceptions are: 1) works of architecture in their
exterior outlines and monuments erected in public places, with the reservation
of any possible arrangements that might be made for their reproduction”

6) Prussian law, §. 21: “The reproduction of drawings or paintings by copper
or steel engraving, by woodcut, lithography, chromotypy, copying etc. is
forbidden if carried out without the permission of the creator of the original
work of art or his legal successors.” §. 22: “On a similar condition the
reproduction of sculptures of any kind by casts made from moulds etc. is forbidden”




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§. 49

4. The Holder of Author’s Rights and their Transfer

      1. Author’s rights always refer to a specific individual as their holder,
namely to the author himself. In this sense they constitute a highly personal
right. They arise from the act of authorship and their duration depends on the
author’s lifetime.
      2. Sometimes a work may have several authors. Here, though, one may
distinguish two main types of situation. First situation: the large number of
authors refers only to the individual parts of the work, but the work as a
whole has only one author, e.g. an encyclopaedia is the project of a single
editor or publisher, although its entries may well have been written by 30 or
more contributing writers. The latter have author’s rights to their various
entries, whereas it is the editor or publisher who has author’s rights for the
whole work, and it is possible that their rights may expire before the editor’s
right, and vice versa.
      3. Second situation: two or more people are the joint authors of the
whole work, e.g. the brothers Jacob and Wilhelm Grimm in the case of the German
Dictionary. Several joint authors have in the first instance


____________________

1) Renouard II, p.202: “The right to a privilege derives from authorship. The
privilege which is alienable from the person of the author as far as its
exercise is concerned, is not inseparable from his person where its duration
is concerned.”

2) Merlin (quoted by Renouard II, p.221): “The word ‘author’ designates not
just those who have composed a literary work by themselves, but also those who
have had it composed by others. Citizen Guyot wrote only a part of the Compendium
of Jurisprudence: three




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equal rights and the work as a whole is dependent on the lifetimes of all
of them, i.e. the duration of author’s rights for the whole work is
calculated according to the lifetime of the most long-lived of these joint
authors. As the work is a single whole its authorship is also undivided,
even if several persons have collaborated on it. For this very reason none
of the joint authors can claim division and separation, nor can any of them
force a colleague to a publication to which the latter has not pledged
himself with regard to the former. This personal association is rather like
the concept of collective ownership in property law as opposed to joint
ownership.
      4. Authorship can be proven in various ways. In case of doubt one must
assume that the author’s name given during the first publication of a work
is the true one, but the real author is always entitled to prove his
authorship even if his name had not been provided. Anonymous and
pseudonymous works, however, deserve special attention. More
often than not in these cases the name of the real author is unknown to third
parties. Therefore, these have no way of


_______________________

[2) cont.] quarters at least of this work were written by jurists whom Citizen
Guyot had brought into collaboration on his endeavour. Who, though, would
today presume to deny Citizen Guyot the full exercise of his rights to the
Compendium of Jurisprudence as a whole which the law of 1793 guarantees to
the authors of their works?”

3) Renouard II, p.220: “Mr Troupenas, who had purchased the score of 'Moïse',
published the text of this opera together with the music without the permission
of Mr. de Jouy, the author of the libretto. A session of the Royal Court of
Paris of 11 January 1828 sentenced that this was a case of unauthorised reprinting”




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determining if and when a work of this kind has been made public. Here it
is often suggested that one should treat the publisher as the author, but
in fact this assumption is only valid in exceptional cases and collapses
anyway when the truth is revealed later. It may well happen that the real
author is still alive, whereas the publisher had died 30 years ago. For
such cases, in the interests of the security of rights and public use, it
is necessary that the laws stipulate a specific period of special legal
protection, calculated from the time of first publication: a period which
does not have to be too long since it is up to the author to identify
himself and thus secure for himself full author’s rights.
      5. Author’s rights, according to German law,* continue be in place for
30 years after the author’s death. They are thus treated
as a part of his bequeathed estate and pass to his heirs and legal successors,
insofar as they weren’t sold by the author during his lifetime. Who these
successors are- whether the actual legal heirs, or those named in the
author’s testament,


______________________

4) Bavarian law, Art. 2: “Excluded [from author’s rights] are: 2) publications
on which neither the author’s name nor that of the publisher is indicated”

5) Prussian law, §. 7: “The period of protection prescribed in §§. 3 and 6
assumes that the true name of the author is given on the title page or under
the dedication or preface. A




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or the surviving widow, or those endowed with a bequest- is determined by
the specific inheritance laws that apply. French law, for example, takes
into account above all the interests of the author’s widow and distinguishes
more accurately here than German law between closer and more distant
familial ties.
      6. Author’s rights are transferable, but only on
condition that their duration continues to depend on the life and death of
the author himself. The usual case is when the author’s rights are
transferred to a publisher in a publishing contract, but it is not the only
way in which this transfer can occur. According to German law, the transfer
does not have to take place in a particular form, that is, it can also be
done by word of mouth or it can reveal itself in the context of actions
undertaken (This is not so in North American and Russian law).
      7. One must distinguish here between the transfer of ownership or
possession of a manuscript, which takes place according to the rules of
property law, and the transfer of authorship, which occurs
by a mere contract.


_______________________

[5) cont.] work which has appeared either under a different name to that of
the real author, or for which no author’s name was given at all, is to be
protected against unauthorised reprinting for 15 years from the date of
first publication.”

6) Federal directive of 1845: “2) The works of anonymous or pseudonymous
authors, as well as posthumous works and those produced by institutions
(Academies, universities etc.) are to be accorded such protection for a
period of thirty years from the date of their publication.”




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Both are frequently combined, but they can also occur separately and are
independent of one another. From possession of a manuscript one cannot,
therefore, automatically infer that its owner has author’s rights: this
deduction can only be made if there are other circumstances which indicate
this.
      Doubts may arise regarding the question of posthumous works (opera posthuma).
Do these become public property 30 years after the author’s death? This
would be somewhat strange because during this time they may not have left
the peaceful sphere of private property at all and unpublished works are
not readily accessible to the public. Or should their first publisher be
considered the author and the duration of legal protection be calculated
on the basis of his lifetime? Modern jurisprudence tends to answer this
question in the affirmative. The person who brings the work to light and,
after having recognized its character and merit, which can only be to his
credit, gives life to it by publishing it, is indeed to be considered the
author and father of the work with regard to the interests of society.
(Renouard II, p.292). All the same, though, this kind of


_______________________

7) Draft of the Zurich statute-book, §. 98: “Anonymous or pseudonymous
works are protected only for 13 years since their first publication. This
period is not extended by subsequent re-editions”

8) Bavarian law, Art. 3: “3) In the case of works which are first published
after their author’s death or for which only the publisher’s name is given,
the author’s rights expire after 30 years (starting from the date of first
publication).”




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authorship still remains a secondary one and it is quite right that modern
legislation accords it a more limited protection.
      8. Related to the above is the question of author’s right for letters,
by which, of course, we mean not works which have been written in epistolary
form but actual letters. In general, the sender of a letter- i.e. its author-
lets the recipient own it, but by no means does this mean that the author’s
rights to it have also been handed over, since individual communication is
quite different from transfer of the right to publish for everyone to read.
For this very reason individual letters by virtue of their original function
are not literary products in the proper sense of the word. If, however, they
are published by someone else that means they are being treated as literary
products, which constitutes- if the explicit permission or tacit understanding
of the sender cannot be assumed- a violation of the person who had written
them since he is being presented against his will to the public as the author.
The violation of personal rights is in fact even greater when someone’s
confidential letters, rather than a literary work of his, are


___________________

9) Draft of the Zurich statute-book, §. 97: “The mere ownership of a manuscript
whose author is not the owner can never in itself qualify for author’s rights.
If the owner of a manuscript publishes it or has it published for the first
time in a fully legitimate manner, the work is to be protected from unauthorised
reprinting for 13 years from the date of publication.”



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published against his will, since in the latter case the author himself had
probably intended publication at some point, whereas in the former case the
letters’ author, who had just sought to communicate something privately, is
made to enter the public realm as an author utterly against his will. Therefore,
he has the right to prevent such a publication, and, where it has already
taken place, to sue for violation of his personal rights. There are, however,
still discrepant views on this in jurisprudence. Some jurists assume that it
is the right of the owner of the letters (the recipient) to make them known.
Others, on the contrary, see in such divulgation an abuse of the personal
confidentiality between sender and recipient and allow a lawsuit (actio
injuriarum) to be presented against the latter, though not on the grounds of
violation of author’s rights (this would only be the case if a third party had
come into possession of the letters).
      9. The transfer can be complete or partial, unconditional or conditional,
permanent or limited to a specific period. It is up to the contracting parties
to come to an agreement about these details. Deficient agreements are to be
supplemented in accordance with the


_____________________

10) Prussian law, §. 28: “If the author or his heirs relinquish ownership of
a work of art before having set about reproducing it, then they completely
forfeit the exclusive right to it unless an explicit agreement regarding this
had been reached earlier. However, this right can last for 10 years, either
for the benefit of the author or his heirs, if they reserve it for themselves,
or for the benefit of the work’s purchaser if they transfer this right to him,



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principles which follow on from the given circumstances and from standard
practice. The following, in particular, are taken for granted:
            a) author’s rights are transferred to the publisher by the publishing
            contract only for one edition and, once the latter is exhausted, revert
            to the author;
            b) the authors of newspaper articles, even if they have been paid fees
            by the newspaper’s owner, do not thereby relinquish the right to publish
            their articles independently in separate works;*
            c) the author of a play who has handed it over to a theatre director to
            have it performed does not thereby transfer his right to print it and publish it.

      10. In the case of works of art the following question arises: when the original
work (a painting, a statue) is sold, is the right to reproduce it also automatically
transferred? This depends in the first instance on what the contracting parties
have agreed: where no agreement on this has been formulated explicitly, one has
to rely, apart from juristic surmises, partly on existing practice and partly on
the given circumstances to determine what the presupposed intention was. If a work
of art which is suitable for reproduction, e.g. an engraved


________________________

[10) cont.] as long as in both cases an agreement on this is made in a convincing
form at the same time as the sale takes place and the chief board of curators of the
fine arts is duly informed of this”

* Bavarian law, Art. 2, goes too far in not recognizing author’s rights not just for
‘news flashes’ but also for ‘essays and articles’ which appear in public newspapers.




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copper plate is sold, then the intention of also transferring the author’s
rights is clearly manifest in such a case. However, when a painting is sold
the transfer of author’s rights is not to be taken for granted, although
here too there are situations in which it is possible to deduce such an
intention, e.g. when a painting is sold to a publisher of fine arts books or
when a portrait has been commissioned. But since both current practice and
jurisprudence are still rather hesitant on this point (Renouard cites various
contradictory verdicts), it is recommended that the two contracting parties,
if they wish to be certain, set it down in contractual form. Prussian
legislation contains detailed specifications for this.
      Incidentally, it is obvious that a painter who has sold his original
painting and does not own a copy of it cannot have it reproduced unless the
owner lends him back the original for the purpose of copying it: the reason
for this, however, is not the existence of author’s rights on the part of the
owner but, rather, the latter’s ownership of the object (Cf. Jolly, p.204 ff.)
      11. Once the author has transferred his author’s rights to one publisher,
he cannot transfer them to another publisher whilst they are still with the
former. This must be taken into account especially during the publication of
an author’s Complete Works if the latter had previously had his individual
works published by different publishers.
      If he had sold his work to various publishers, the earlier transfer of
author’s rights takes precedence over later ones.



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      12. If the publisher were not to publish the work or did so in an
improper manner, the author is not only entitled to sue for violation
of his interests according to the publishing contract, but in severe
cases may also take back his author’s rights and dispose of them anew.

§. 50

4. Violation of Author’s Rights. Unauthorised Reprinting.

      1. Our present jurisprudence is still very imperfect and unsatisfactory
as far as the definition and distinction between civil and criminal law
violations of author’s rights are concerned. Even the most recent
legislation ties two consequences to any violation:
            a) the injured party’s right to claim indemnification and reparation,
            which by its nature belongs to civil law, and
            b) a punishment (penalty) of the injuring party, and it is often the
            case that the crime aspect predominates disproportionately in the way
            such disputes are treated.*
      This deficiency can be ascribed to the fact that the personal right nature
of author’s rights has not been recognized until quite recently, and it will be
remedied in the same measure as


_______________________

* It is the otherwise commendable Bavarian law which does this to the greatest
degree, by leaving it up to the police-authorities to decide both on the
compensation and the punishment called for (Art. 10). Renouard (II, p.11) points
out the difference between the civil and criminal law treatments of such cases,
but hesitates to deduce the implications from this.



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this realization takes hold. The first steps to a more adequate treatment
of such cases can already be seen everywhere.
      2. The essential aspect is manifestly that of the private right nature
of author’s rights, and it is precisely here that a number of very delicate
and complicated questions of purely civil law are raised. Every violation of
author’s rights is first and foremost the violation of a private right, and
many violations, namely all those which have occurred bona fide, can be
completely rectified by reparation (i.e. by indemnification), that is within
the bounds of purely civil law. As things are it is only in exceptional cases
that criminal law has to be brought in, i.e. when the violation is so
considerable that public order suffers from it, e.g. when a punishable
malicious intent reveals itself in the violation.
      3. It is also a violation of author’s rights to publish for the first
time a work without the consent of the author or his legal successors, just
as it is a violation to reprint it again without such consent.


_____________________

1) Federal directive of 1845: “4) It is the duty of the unauthorised reprinter
and those who knowingly trade in such reprinted works to fully compensate
those who have been injured by the unauthorised reprinting etc. Moreover,
they must provide this compensation jointly, insofar as this does not go
against general legal principles. 5) The compensation is to consist of the
sales price of a number of copies of the original work to be determined by
the judge and which can be up to 1000 copies. It can be even more than this
if the injured party can prove that he has suffered a greater loss than this.
6) Moreover, upon application of the injured party fines of up to 1000 Gulden
are to be imposed for unauthorised reprinting and any other kind of
unauthorised mechanical copying



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Only the latter can be called unauthorised reprinting in the proper sense of
the word. The French term “contrefaçon” is slightly more general.
      4. The following do not constitute unauthorised reprinting:
            a) the reprinting of individual passages from someone else’s work, as
            long as this isn’t done excessively;
            b) the inclusion of individual essays, poems etc. in compilations, under
            the same condition as above;
            c) translations of foreign works.*
      In these cases the independent intellectual effort that goes into the new
work and the relationship of the work used or translated to the literary community
are more important than special consideration for the author of the latter.
      It is more difficult to decide whether a continuous extract taken from a
larger work and published as a separate compilation should be treated as a
violation of author’s rights. A mainly word for word extract is undoubtedly to be


_________________________

[1) cont.] all federal territories where the state legislation does not prescribe
even more severe punishments.”

2) Bavarian law, Art. 9: “In all cases investigation is to be initiated only at
the request of the injured party. Once, however, an investigation has been started
the claim can only be withdrawn ¦

*) Prussian law, §. 4, makes an exception for translations into German of a work
which is published by the author in a dead language. Renouard (II, p.39) rightly
argues against such an exception. Similarly, the English scholar Godson.




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treated as such, but an originally adapted extract can, depending on the
circumstances, be seen as a morally reprehensive plagiarism whilst not
actually being unauthorised reprinting. It does, however, come closer to
the latter if the extract is published under the name of the author of the
work from which the extract was made, rather than when care is at least
taken not to expose the latter’s reputation as an author.*
      5. It is irrelevant whether the illegal publication was achieved by
printing or lithography or any other mechanical means. The violation of
author’s rights is to be regarded as complete once mechanical reproduction
has begun, even if the printing operation were not carried out fully or a
part of the work being reprinted were left out. A less strict approach
would easily deprive the protection of author’s rights of the security it
requires. (Renouard II, p.49 ff.)
      6. In the case of dramatic and musical works their public performance
in a theatre or at a concert is a special kind of publication,


___________________

[2) cont.] in relation to compensation and confiscation, but not in relation
to the fine to be imposed”

3) Prussian law, §. 10: “Whoever encroaches on the exclusive right of
authors, their heirs or legal successors, by making use of it without their
permission, is obliged to fully compensate the injured party and, apart from
the confiscation of any copies he may still have in stock, he must ¦

*) English legislation is more favourably inclined towards extracts than the
French. Cf. Renouard (II, p. 29ff.)




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which can therefore also lead to a violation of author’s rights if it is
undertaken without the author’s permission.
      This is true not just of public performances which an impresario may
organize for the sake of his own financial gain, but also of such
performances which he puts on for charitable aims and even of those to
which the audience is admitted without having to pay an entrance fee.
However, a private performance in a circle of friends does not constitute
an encroachment on the author’s rights. (Cf. Renouard II, p.63ff.) According
to German law it is assumed that an author who has made his work known by
having it printed thereby permits its use for public performances.
      7. Works of the fine arts may certainly be copied for private use,
without this being a violation of author’s rights, but they may not be
copied and reproduced for the purposes of publication


__________________

[3) cont.] pay a fine of between 50 to 1000 thalers.

4) Prussian law, §. 4: “The following do not count as unauthorised reprinting:
            1) word for word citation of individual passages from a work which has
            already been printed;
            2) the inclusion of individual essays, poems etc. in works of criticism
            and literary history and in compilations for use in the classroom;
            3) the publication of translations of works which have already appeared
            in print.”

5) Draft of the Zurich statute-book, §. 104: “The translation of someone else’s
literary work into another language and the publication of this translation, or
the publication of someone else’s work to which one has added one’s own continuous
commentary, are not




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without the author’s consent. In this case too there are a number of
fine distinctions to take into account:
            a) If a painting is reproduced by means of copper engraving or
            lithography, the resulting copy is in a certain sense a new work and its
            author can for his own part claim author’s rights to it. However, with
            respect to the author of the painting this copy is a violation of his
            author’s rights if it was carried out without his consent, for in
            relation to the original composition a drawing on a copperplate or stone
            is just a mere reproduction rather than an independent new work as is
            the case with the translation of a literary work.
            b) On the other hand, the reproduction of a drawing by means of a
            sculpture, or vice versa, is to such an extent


_________________

[5) cont.] violations of the original author’s rights and entitle the translator
or commentator to a new author’s right of his own. However, even with respect
to a translator or commentator the original author retains the right to demand
emendations where important parts of his work are concerned.”

6) Prussian law, §. 16: “The offence of unauthorised reprinting is regarded as
having been fully perpetrated if copies of a book are found which have been
manufactured in a way that contravenes the current regulations.”

7) Federal directive of 23 July 1841: “1) The public performance of a dramatic
or musical work in its entirety or in abbreviated form may only take place with
the consent of the author, his heirs, or other legal successors, as long as the
work has not been published in printed form. 2) This exclusive right of the
author is to be respected and protected for a period of at least 10 years from




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            an independent work- comparable to a translation- that it does not
            constitute a violation of author’s rights.
            c) Similarly, the use of works of art in products of manufacture or
            craftsmanship (e.g. bottle-stoppers or pipe-bowls crafted in the
            likeness of portraits) is to be treated as lawful reproduction. On the
            other hand, the publication of a regional or town map in the form of
            printed handkerchiefs is clearly a case of unauthorised reprinting.
      8. Whoever knowingly carries on trade with unauthorised copies or distributes
these (e.g. the owner of a lending library) is as liable [to prosecution] as the
unauthorised reprinter himself. If even just a single unauthorised copy is found
in a bookshop this is enough to verify that a violation of author’s rights has
taken place. The most recent legislation does not, however, distinguish


___________________

[7) cont.] the first lawful performance of the work, in all federal territories.
If, however, the author has allowed a performance of his work without giving his
name or using any recognized pseudonym, no exclusive right can be claimed against
other performances of the work.”

8) Prussian law, §. 32: “The exclusive right to grant permission (for public
performance) belongs to the author for life and to his heirs or legal successors
for 10 more years after his death.”

9) Prussian law, §. 24: “If a work of art which has been produced by painting or
one of the graphic arts is represented by means of the plastic arts, or vice
versa, this is not to be treated as an unlawful reproduction.” §. 25: “The use of




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sufficiently, as far as both compensation according to civil law and the
criminal punishment are concerned, when it treats the trader and the
publisher of unauthorised copies in exactly the same way. For, in fact, the
encroachment and damage caused by the latter are clearly much greater, as
is the offence he has incurred. If a bookseller is charged with having
distributed unauthorised copies, where this was done not knowingly he is
liable only for the damage caused by his own business, rather than for the
total damage (Jolly, p.276). He is also liable for the former even if it
cannot be proved that he had committed negligence.
      9. The immediate consequence of violation of author’s rights is the
injuring party’s liability to fully compensate the injured. How is the
damage to be determined? Insofar as positive laws do not stipulate a
specific proportion, it is to be done first and foremost through a sensible
consideration of the circumstances by judicial


_____________________

[9) cont.] works of arts as models or designs for products of manufacture,
factories, and craftsmanship, is permitted.”

10) Bavarian law, §. 8: “Whoever knowingly sells or distributes unauthorised
copies of works of literature or art must be punished in like measure to the
person responsible for the unauthorised reproduction, and is jointly liable
with him for the damages that have to be paid.”

11) Prussian law, §. 17: “If a judge is unsure whether a printed work is to
be regarded as a legitimate copy or an unauthorised one, or if the amount of
compensation to be paid is contested, he must take the opinion of a group
made up of experts.” §. 11: “If the work had already been published by the
authorised persons, the amount of compensation to be paid is to be set by
the judge at a sum equal to the sales value




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discretion. When deciding on this, the instruction given by the federal
directive of 1845, Art. 5, that the amount of compensation to be paid can
be as high as the sales value (by which is meant not the shop price, but,
rather, the sales price paid by the booksellers) of 1000 copies of the
original work (the size of a standard edition), is to be regarded as
authoritative to the extent that in the usual cases of unauthorised
reprinting of a whole work the damage caused is indeed as great as this.
The above standard will, therefore, only need to be lowered or raised
where special reasons apply.
      10. The destruction of the unauthorised copies (or handing them over
to the injured party as an interim payment of damages) is, again,
essentially a civil law consequence of the violation whose result is to
restore the legal status.
      11. In contrast, the fine which is imposed for unauthorised
reprinting is a criminal law consequence.*


___________________________

[11) cont.] of between 50 to 1000 copies (depending on the circumstances)
of the authorised edition, insofar as the rights’ holder cannot prove that
the damage caused was greater.” §. 12: “The confiscated copies of the
unauthorised edition are to be destroyed or handed over to the injured
party if he so wishes. In the latter case, however, the injured party
must accept that the offender’s expenses in producing these copies are
to be deducted from the total amount of compensation he has to pay.”



Translation by: Luis Sundkvist

    


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