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Wächter: 'Publishing Right', Stuttgart (1857)
Source: Scanned from a copy held in the Frankfurt Max-Planck-Institut für Europäische Rechtsgeschichte
Citation:
Wächter: 'Publishing Right', Stuttgart (1857), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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94 translated pages
Chapter 1 Page 1
89
FIRST SECTION
The publishing right as such
First Chapter
Definition, nature and content of publishing right
I. Nature of the publishing right
§ 9.
When considering the legal factors relating to the production of
an intellectual work, a literary or artistic product, three aspects
can be singled out: firstly, the right to produce such a work and the
safeguarding of this right; secondly, the interest which the author,
as the producer of an intellectual creation, may have in the realm of
science (literature) or that of art, an interest which may be termed,
albeit not entirely accurately, intellectual interest; and, thirdly,
the material use of the product for the purposes of gain.
The first of these aspects, namely the right to produce a work,
is a purely individual right, about which nothing more need be said
here, since it is subject to the same principles and the same
protection as any other individual right to free enterprise.*
_________________
* Wächter.
Chapter 1 Page 2
90
The second aspect, that is, the author’s intellectual interest
does not fall into the sphere of law,* but rather into that of
morality and the intellectual significance (of his work). For it
is not the the internal or individual interests and intentions of
the author which publishing right is meant to protect. The law is
indifferent to such subjective considerations and to include them
in a juristic treatment (of the matter) would only confuse things.
It is true that some, Bluntschli for example,** consider the
author’s personal, esp. literary, interest and the artist's honour***
to be a necessary principle in the protection of rights.****
Nevertheless, the realm to which publishing right is applicable is
not that of the mind, but, rather, the sphere of material circulation.
It is not from his ideas, which he was the first to think of, develop,
and express, that an author wishes to exclude others, for ideas by
their very nature are not subject to legal control. Once they have
been brought into literary circulation, they immediately become
common property and elements from which new works of the intellect
can arise. It is not this intellectual circulation which
_____________________
*
** Bluntschli 1853
*** Bluntschli 1853
**** Bluntschli 1853
Chapter 1 Page 3
91
could infringe upon the author’s legal interests and should
therefore be subject to exclusive rights. A literary or
artistic work only falls within the competence of law when it
ceases to remain solely in the realm of ideal relations and
becomes an object of property whereby it acquires a cash value
in circulation or is suited to acquire such a value. It is
precisely in this sphere that property rights apply to the use
of an object. For it is in this use alone that an author’s
objective legal interest lies, thus making it into a matter for
legislation,* whereas the subjective intentions which the author
may harbour regarding his writer's or artist's honour and his
critical reception are irrelevant to the law. If exposition of
one’s personality
________________________
* Report of the Saxon Chamber of Parliament, 18 March 1843;
Report of the Bavarian Chamber of Parliament, May 1840.
Chapter 1 Page 4
92
were to be the reason for seeking to forbid the violation of
publishing right, then such divulgations which do not actually
involve reprinting, as, for example, disclosing the author’s
opinions or even maliciously distorting the sense of his words,
would have to be treated as violation of authorial rights,* since
in this way the individual can find himself injured to a far
greater extent than by unauthorised word-by-word reproduction of
his work. On the other hand, it is unconceivable how mere reprinting
can damage the author’s reputation** as such. The greatest possible
reproduction and diffusion of an author’s work can only work in
favour of his reputation, and reprinting does after all indicate
that the special value and relevance of his work have been recognized.
If, however, it is reasons of reputation or any other highly
personal considerations which compel an author to adopt the legal
means of redress which the law provides him with against encroachment
on his property rights, this does not alter the nature and principle
of such legal protection. For the legal means of redress called for
in case of violation of the property rights of the publishing right
holder, does not change in content or legal character just because
the holder sees in it a means of achieving other ultimate aims.***
__________________
* Ritter 1846.
**
*** Wächter, Handbook of Civil Law.
Chapter 1 Page 5
93
It is true that an author can also prosecute for an unauthorised
disclosure and publication of his work,* but the basis of this
right is merely the protection of property right interests, not
any consideration for literary discretion as might induce the
legislator.
Anyone is allowed to divulge another person’s ideas,
especially if he arranges and adapts these in a new way.** It is
therefore an undue interference of personal factors when some
people would take publishing right to mean a right of the author
to prevent changes to his work.*** For the prohibition of
reprinting gives the author
__________________
*
**
*** Beseler
Chapter 1 Page 6
94
no protection against alterations of his work. On the contrary,
if these are sufficiently far-reaching there is no way they can
be presented as evidence for violation of publishing right.*
Only when an author’s work is reproduced can one speak of unlawful
reprinting.** Only a publishing contract which obliges the signatory
publisher to print off the work without any alterations can justify
taking legal action against alterations, but not the publishing
right as such.***
Accordingly, it is clear that, apart from the general
protection of persona rights, only property right interests fall
into the sphere of objective law.
The property right nature of publishing right, on which any
discussion of unauthorised reprinting hinges,**** has already been
admirably emphasised by Kramer^ and earlier writers^^ and is duly
given the highest priority in French law^^^ especially. Jolly^^^^
too recognizes this property right
________________
*
**
***
****
^ see Kramer 1827
^^ Böhmer, Pütter, Wernher
^^^ Renouard
^^^^ Jolly
Chapter 1 Page 7
95
character of the legal situation, as is clear from the way he
describes unauthorised reprinting as an encroachment on
another’s property. Now, if such reprinting is an encroachment on
property the right which is thereby affected must itself be of the
nature of a property right. This positive aspect of the legal
situation, namely the publishing right (which only unauthorised
reprinting can violate*), was not clear to Jolly. Bluntschli** and
Beseler,*** on the other hand, have emphasised it.
The positive laws also uphold the principle that it is in the
revenue accruing from his property rights that an author should be
protected, even though most laws do not lay down this principle as
such but formulate, rather, its main practical implications.****
_____________________________
*
** Bluntschli
*** Beseler
**** Wernher 1847
Chapter 1 Page 8
96
Thus, federal decrees stipulate that the legal consequence
of unauthorised reprinting is compensation of the publishing
right holder,* that is, a property law based penalty. An even
more significant recognition of the property right principle
lies in the fact that federal decrees** allow the author’s
rights to transfer unconditionally to his heirs and legal
successors, and treat the latter, that is, the publisher***
exactly as if he were the author, which makes it clear that it
is a question of property interests alone.
The property right principle of publishing right is quite
explicitly formulated in the relevant legislation in Saxony.****
However, it also underlies the legislation of all other German
states,^ and manifests itself in the fact
_________________________
* Federal directive 1845
** Federal directive 1837
*** Federal directive 1837
**** Reinert [?]
^ [unreadable name]
Chapter 1 Page 9
97
that where a property right interest is not predominantly
involved, protection of an author’s right as such through
accusations of unauthorised reprinting cannot gain ground -
this is the case, for example, with plagiarism or with
indiscreet disclosure of an author’s ideas or views.*
When defining more closely the property right principle
of publishing right, one is first of all confronted with the
following question: do these property right interests in
themselves amount to a right which is anchored in legal
practice, and, consequently, does the violation of these
interests of the author constitute an encroachment on someone
else’s rights, that is, a tort?
Some writers on the subject- e.g. Quistorp,** and, later,
Grolmann*** and Tittmann**** - have treated unauthorised
reprinting in itself as a (punishable) offence because in
their view it is a kind of forgery. This, however, was
definitely a mistake since forgery involves essentially a
distortion or withholding of the truth, whereas those who
reproduce a work by unauthorised reprinting are not deceiving
or seeking to deceive anybody. Thus, no case can be made out
for forgery here. The unauthorised reprinter would only then
be guilty of forgery if he were to give his unauthorised
edition the appearance of being an authorised publication by
copying the style etc. of the genuine publisher. However, in
such a case, the act of forgery lies not in the reprinting
but in the false declaration of the publisher’s name.
Others have argued that unauthorised reprinting is
deceit because the reprinter thereby violates the tacitly
___________________________
*
** Quistorp 1770
*** Grolmann 1818
**** Tittmann 1810
Chapter 1 Page 10
98
agreed condition under which the author or publisher sell
their work.* This is, however, to overlook the fact that
for a deceit to take place a violation of some obligation
to the truth must have occurred. The violation of a condition
of contract can therefore not be deceit, but belongs instead
to the intentional breaches of contract. Unauthorised reprinting
as such does not constitute a breach of the contract through
which the reprinter came into possession of the copy that he
used to reprint the work. Those who argue otherwise fail to
realise that [in a contract] conditions cannot come into force
tacitly: they are only valid when both parties have agreed to
them. This means that the publisher would have to stipulate
before each sale that the buyer pledged not to carry out any
reprinting, but this would still not protect him from the
reprinter who had bought the book from that buyer without
entering into this condition, since such conditions, just like
the rights that follow from any obligation, do not apply to third
persons.**
Similarly, the attempt to brand unauthorised reprinting as
a form of injuria, giving the right to take actio
injuriarum against the reprinter, as Neustetel and,
more recently, Heffter*** have done, is also a failed one.
Certainly, the premise on which Neustetel based his argument,
namely that
__________________________
* Klein 1810
** Wächter 1826
*** Neustetel 1824
Chapter 1 Page 11
99
according to Roman law any intentional harm done to a person
should be treated as injuria, is quite correct,
but he takes for granted the personal right which, in his view,
is violated by unauthorised reprinting, whereas this right could
only come into existence through an explicit law.*
Finally, attempts to prosecute unauthorised reprinting as
furtum (rei ipsius)** have also proved to be in vain,
since such reprinting is neither the abstraction of a thing from
someone else’s possession, nor any other kind of appropriation of
something that does not belong to one (e.g. embezzlement and the
like). Furthermore, the concept of contractatio which is
inherent in any act of furtum,*** can in no way
be applied to the reprinter’s actions.
Similarly, unauthorised reprinting as such cannot be said to
constitute a furtum usus [= clandestinely taking
possession of and using], since the essential prerequisite for this
is a thing belonging to someone else which one makes unauthorised use
of, whereas the reprinter can print from his own copy or one lent to
him for this purpose by the owner.****
The publishing right is often regarded as intellectual property,
so that, consequently, unauthorised reprinting, the violation of
the publishing right, is seen as encroachment on someone else’s
intellectual property.^ However, this is completely mistaken and
_______________________
*
** Pütter 1774
*** Wächter
**** Wächter
^ Eisenlohr
Chapter 1 Page 12
100
based on false and vague notions. There is hardly any need
to prove that the very concept of property, which just refers
to the legal possession of physical objects, cannot be applied
to intellectual works as such. One could, it is true, speak of
an analogous application of the property concept to intellectual
works,* but in this case the premise which,
______________________
* Several references to Eisenlohr- Putter 1774
Chapter 1 Page 13
101
apart from anything else, is essential for making valid
analogous extensions of legal concepts- namely the similarity
of the legal situation and of the facts of the matter- is
lacking.*
It is precisely this legal possession, with which the
owner of a physical object is invested, that is quite
unconceivable for an intellectual creation. The means by
which the intellectual creation comes into being, that is,
the manuscript, book, or work of art- is indeed an object
that can be owned, but the legal possession to which this
real ownership of a material object entitles one, is so
completely different to the legal power which is to be
understood under the publishing right that
_____________________
* Wächter
Chapter 1 Page 14
102
attempting an analogous extension of what is valid for that
kind of possession to this legal power [of publishing right]
makes no sense.* The publishing right holder does not own
as such a material object, his claim to which, ownership and
use of, would require protection from encroachment by others.
In this possession of his materialized product, which he
exercises as its owner, he is not harmed by the reproduction
of this work by another person. Rather, the publishing right
holder asks for protection from an action which the owner of
a copy of the materialized work- who may very well be the
rightful owner of this copy, as is the case with the buyer
of a book or a work of art- might intend to carry out with
this object that belongs to him (i.e. its reproduction). He
therefore seeks to limit the freedom of a third party, even
if this happens to be the owner of the object. The reproduction
of this object, however, does not violate at all the publishing
right holder’s sphere of legal possession.**
If, on the other hand, one tried to base an analogy on the
observation that the author of a work is the owner of its
intellectual substance, so that its reproduction by a third
party would constitute an infringement of this ownership,***
this would be to overlook the fact that one cannot speak of
ownership of an intellectual substance, even if only
___________________________
* Wächter
** Schmid
***
Chapter 1 Page 15
103
by way of analogy, for the simple reason that the originator
of an idea, once it has entered the external world, can no
longer keep it for himself, possess it exclusively, and
prevent others from using it. Moreover, the author who
publishes a work cannot desire such exclusivity, since his
aim can only be that as many people as possible adopt his
ideas and that the intellectual use of his work be as free
as possible. What he does want to reserve for his own
exclusive disposal is just that which has to do with the
exploitation of his idea in accordance with property law.*
If, instead, one chooses to call the warranty to
reproduce this idea in certain forms and bring it before the
public, an intellectual property,** one is effectively using
that term for something which in no way can form the basis of
property, thus divesting the concept of property of its very
own peculiarity and letting it be absorbed into the concept
of property law in general.***
And, finally, if one takes “intellectual ownership” to
mean a property right which refers to intellectual creations,****
____________________________
*
** Meister 1809
***
****
Chapter 1 Page 16
104
there is nothing to be said against such an approach except
that the term used and the definition of the [property] right
which it implies are hardly to be approved of, since they are
quite misleading and the term “ownership” is used in an
anomalous sense.* Moreover, the situation which “intellectual
ownership” is supposed to define is by no means that of a
purely “intellectual” property right, but, rather, that of a
completely material one!**
______________________
* Neustetel
** Walter
Chapter 1 Page 17
105
As soon as this property right is recognized by positive
law, it is indeed accorded legal protection, like any property
right, including, of course, that of ownership (it is just that
because of the particular nature of this right, the way in
which it is protected must necessarily be different). It is
precisely this which is implied by the laws when every now and
then they define the right which is accorded to an author as
intellectual ownership. Thus, already in the consultations held
on the federal decrees we find the right in question referred
to as a right of ownership,* although when the decrees themselves
were drafted the latter term, which is not entirely accurate,
was rightly avoided.
Austrian law, which explicitly speaks of an author’s
ownership of his work,** also does not invest this term with any
further significance other than that the author is given sole
exploitation of his work through reproduction and publication.
Similarly, Prussian legislation takes “ownership of works
of scholarship and art”*** to mean just the exclusivity of the
publishing right.****
_______________________
* Cf. the proceedings of the Federal Diet of 1813
** Austrian law of 1816
*** Prussian Copyright Act of 1837
**** Report of the Berlin tribunal
Chapter 1 Page 18
106
The legislation in Saxony, which makes the strongest
emphasis on the property right aspect,* makes no assumption
whatsoever of ownership.**
In everyday usage unauthorised reprinting is often referred
to as theft, since it is generally felt that where intellectual
creations are concerned the author should have an exclusive
property right, and that infringements of this property right
should be dealt with in the same way*** as when the law deals
with infringements committed by a thief. A lawyer, however, should
take care- although it isn’t always observed-
________________________
* Saxon law of [unreadable year]
** Cf. the report of the committee of the lower Saxon chamber at
the diet of 1843 [?]
*** Volkmann 1848
Chapter 1 Page 19
107
not to call these infringements (i.e. unauthorised reprinting)
theft. Those who do refer to it thus in jurisprudential writing
either have a total misunderstanding of the nature of authorial
right and reprinting, as well as of the nature of theft,* or
are deliberately taking liberties with juristic terminology.
It is only through the definition of publishing right given
here- as the exclusivity of exploitation in accordance with
property law- that one can also prevent the mistaken notion that
after publication the authorial right somehow diminishes in nature
and scope due to constraining rights on the part of the public
allegedly coming into effect.
In this manner, Bluntschli** is prepared to concede the
public rights to the intellectual content of the work, when in
fact the latter, as a purely intellectual work, cannot be subject
to any legal control, including that of the public. Apart from
this juristic impossibility, one can also point to the fact that
although the author, by publishing his work, discloses its
intellectual content, in no way does he transfer anything of his
exclusive publishing right (i.e. his exclusivity of exploitation
in accordance with property law). On the contrary, publication
marks the beginning of his exercise of this right and indicates
that he has no intention of giving it up- rather, that he intends
to make use of it. By publication the author merely renounces the
secrecy of his ideas as he
________________________
*
** Bluntschli
Chapter 1 Page 20
108
expressed them in his work, but this has nothing to do with
his publishing right, which therefore remains his unimpaired
for the first and every subsequent publication.*
II. Content of the publishing right
§ 10.
After what has been said, all that remains now is to
determine in more detail the content of the property right which
accrues to the author with regard to his intellectual works.
However, from the above discussion it is already clear that
this content can be no other than the commercial exploitation in
accordance with property law which the work allows for by means
of its reproduction and diffusion.* Moreover, this exploitation
is one that accrues solely to the author and his legal successor,
with the exclusion of any third party.
It is precisely this exclusivity which allows the publishing
right to be defined as a particular property right.
The right to reproduce his work belongs to the author simply
by virtue of his capacity as a person.*** This right to produce
a work and make copies of it is not in itself a property right;
________________________
*
**
***
Chapter 1 Page 21
109
it only becomes a property right through the exclusivity which
the law confers on it. Only as a result of the author being
able to exclude any third party from reproducing the work does
his right acquire significance in property law as well as the
power of control against third parties. It is because of this
that it becomes a particular property right. However, as soon
as this right is deprived of its exclusivity (e.g. when the
legal term of publishing right has expired), its property
right character vanishes, as does the publishing right as such.*
Then anyone- by virtue of their capacity as a person- can
reproduce the work in as many copies as they are able to.
Accordingly, the laws too emphasize the warrant of
exclusivity as the essential content of the publishing right
which an author is conceded.**
Now, if it is the exclusive exploitation of a work which
constitutes the content of the publishing right, this also
allows us to determine the individual actions from which the
author is entitled to protection. The rightful manner of
exploitation is for the author to hand over his work for
publication, whereupon it is reproduced by the publisher in a
number of saleable copies so that it can be exploited immediately
by the commercial sale of these copies, namely by
_______________________
*
** Austrian law (as above); Prussian Copyright Act of 1837;
Saxonian Copyright Act 1844; Bavarian law of 1846
Chapter 1 Page 22
110
selling these in the bookshops. It is this sale which
brings about the publication and distribution of the work,
and in this sense the exclusive right of exploitation also
includes the exclusivity of publication of the work.*
However, in some circumstances the author can [commercially]
exploit his work in other ways than just that of having it
published, for example, by public performance when the work
is a dramatic or musical composition.** For this reason, the
law recognizes an authorial right in this respect too,***
wherein the principles of publishing right and those concerning
unauthorised reprinting find an analogous application, even
though the particular nature of such exploitation gives rise
to various modifications.****
III. Definition of the publishing right and its position in the legal system
§ 11.
From the points that have been discussed so far we now have
the following definition of the publishing right.^ The publishing
right is
________________________
* Austrian law; Prussian Copyright Act of 1837; Saxonian Copyright
Act 1844; Bavarian law; Gotha directive 1828; Cf. also Volkmann
**
*** Federal directive 1841; Austrian law; Hitzig; Saxon law of
27 June 1846
****
^
Chapter 1 Page 23
111
the right of exclusive exploitation of an intellectual,
especially a literary or artistic, work by means of its
reproduction* or publication.
Because of the differences between the various [national]
legislations one must, however, distinguish between a wider
and a narrower juristic sphere, since most legislations limit
this right to that of mechanical
_______________________
* Cf. Hitzig, newspaper article of 1842; Encyclopaedia of
Economic and Technological Terms, Berlin 1852; on the concept
of publishing right see K[***] 1845 and v. Daniels 1851
Chapter 1 Page 24
112
reproduction, whereas elsewhere any manner of publication,
not just that of mechanical reproduction, is reserved to the
exclusive right of the author (or his legal successors).
The term “publishing right” is especially appropriate for
emphasizing the property right nature of authorial right, since
first and foremost it expresses the thrust of this right towards
fixing the intellectual work in a physical medium, by which the
work acquires a monetary value in circulation and can thus be
exploited in accordance with property law.
This definition of publishing right has been incorporated
into Austrian law.*
In the light of all this, the question as to the position
which the publishing right and unauthorised reprinting occupy
in the legal system is easily answered. Unauthorised reprinting
as an illegal infringement of another person’s right belongs to
the theory of delicts [= inflictions of harm] and, insofar as we
are dealing with the civil consequences, with the obligation,
that it gives rise to between the injuring and the injured party,
it belongs to the theory of obligationes ex delicto.***
However, a delict
_____________________
* Austrian law
**
Chapter 1 Page 25
113
is impossible without a right which is violated in the first
place. Thus, the prerequisite for that obligation is the
legally recognized and protected right to exclusive
reproduction of a work, that is, the publishing right. By its
nature and extension this right manifests itself as a
commercial right, and its position in the legal system is
defined accordingly.
It is self-evident, however, that a treatise on the
theory of unauthorised reprinting must start from the
fundamental premise of the right whose violation is constituted
by such reprinting, that is, from the publishing right. Only
after having attained- by justifying and discussing in more
detail this publishing right (the transfer of which is the
source of the publishing contract)- an idea and definition
of the scope and nature of the right which is violated, can
the transition be made from this positive aspect to the
negative one, that is, from the right to its violation and
the latter’s punishment (in civil and criminal law).
Second Chapter
Objects to which the publishing right applies
I. The concept of literary and artistic works
§ 12.
The laws name the following objects to which publishing
right applies:* literary and artistic
____________________
* Federal directives of 1837 and 1813; Prussian Copyright Act
of 1837; Bavarian law of 1840; Württemberg law of 1845
Chapter 1 Page 26
114
works of all kinds, without listing individually* the
objects that come under this concept.**
It is therefore up to jurisprudential scholarship
to elucidate the general legal concept.
First of all the question arises: what does one
understand by literary works?
Any work which is suited to form part of a country’s
literature must clearly be treated as a literary work.***
It is not really possible here
______________________
* Prussian and Brunswickian laws
** Bavarian legislation of 1840
*** Friedländer
Chapter 1 Page 27
115
to analyse in great detail the concept of “literature”. Suffice
it to say that it designates the complex of intellectual
creations which are fixed by means of language and whose
fundamental significance lies therein that they do not serve a
concrete material purpose, but, rather, help to facilitate the
general (and in this sense public) intellectual circulation of
ideas and thoughts.*
In order to enter into this literary circulation, a text
must be objectively adequate so as to be considered a literary
work, since only such a text can be a literary one. The
subjective view or intention of the originator is irrelevant in
this case, as it cannot invest with a literary quality something
which is objectively not suitable for literature. Thus, it does
not matter whether the originator intended his product for
literature.**
However, this literary quality has nothing to do with the
literary merit or inner content of the work. These aspects do
not come into question here, since even a literature which is
found lacking in the eyes of criticism still remains literature,
and
______________________
* Brockhaus Encyclopaedia 1853
** Austrian legislation
Chapter 1 Page 28
116
its works fall under the category of literary works. A legal
judgement cannot be made according to intrinsic criteria which
are alien to the sphere of law; rather, it must be pronounced
on the basis of objectively recognizable characteristics.*
All that the concept of a literary work allows one to
infer about its intellectual content is that the work derives
its value in circulation from its intellectual substance,
since in literature the essence- that which remains after one
has abstracted the mere means of representation, i.e. the signs
of language- is intellectual. Indeed, it is the intellectual
creation alone, the authorship, which can claim the protection
of publishing right.**
Similarly, the concept of an artistic work*** covers any
creation of the intellect which is represented by those means
that are peculiar to art and which appears suitable to enter
into artistic circulation. If, however, one wishes to refer
to works of art as a class of objects of publishing right which
is commensurate with the literary works, it is necessary to
distinguish two aspects in the concept of a work of art.
Firstly, its intellectual substance, artistic content or idea;****
and, secondly, the means of its representation.^
__________________________
*
**
***
****
^ Volkmann
Chapter 1 Page 29
117
It is to the first aspect, as well as to a factor which
has no legal relevance, namely, to the quality of
representation and execution, that Jolly* limits his
definition of a work of art as a work which more or less
satisfies the aesthetic sense. This vague definition slips,
on the one hand, into the realm of art criticism,** whose
task it is to give a work of art its rank, whilst, on the
other, it is partly too broad, since there are objects
apart from works of art which are capable of satisfying the
aesthetic sense, and, partly, it is also too narrow a
definition, since it does depend on individual factors which
works someone finds satisfying for his aesthetic sense.
Thus, a judge, leaving aside the fact that he will rarely
be an authority in aesthetic matters, would have no objective,
reliable criterion on which to base his judgement.***
A further definition proposed by Jolly,**** that one
should treat as works of art all those works which appear as
such in the fine art trade, is inconsistent with his earlier
confinement to aesthetically satisfying works and is no less
faulty. Such a definition lacks all logical soundness for it
would effectively leave it up to the discretion of the art
dealers to decide on the scope of the legal protection to
be accorded to artistic authorship.
Thus, it can neither be this purely external approach,
nor the artistic ideal of a true master
______________________
* Jolly
**
***
**** Jolly
Chapter 1 Page 30
118
artist,* which determines the legal protection of authorial
right. The objective recognizable characteristics on which
legal judgements must always be based can clearly only lie in
the means of representation.
It is these which also mark off an artistic work from a
literary one.** For they both have in common the requisite of
an intellectual content which the author has to represent:
however, whilst in literary works this representation is
achieved by language signs, an artistic composition will avail
itself, depending on its genre, of drawings, or colours, or
plastic form, or musical notes. This requisite, though, is by
no means arbitrary; rather, the content and means of representation
are mutually dependent. It is precisely because of this that
the artistic content is linked to the artistic means of
representation, and that the latter thus provide a sufficient
criterion for legal judgement.***
However, in this respect the artistic circulation must
also be taken into account, but only insofar as- since the
exploitation by the
_______________________
*
**
*** Austrian legislation
Chapter 1 Page 31
119
artist and the legal protection thereof apply essentially to
the sphere of circulation - a work, in order to be considered
a work of art, must necessarily be suitable for sale in the
course of such circulation.*
However, it is not necessary that such circulation take
place amongst artists, connoisseurs, and art dealers. All
that matters is that the work is capable of being brought
into commercial circulation (commercium)
as an artistic work.** Now, since the terms “work of art”,
“artistic circulation” and so on, are easily interpreted
in a more restricted sense, it seems more appropriate to
speak of “artistic works”, “circulation in the fine art
market” etc.***
Literary and artistic works are in equal measure
entitled to legal protection, so it is not necessary to
draw strict boundaries between the two realms.**** The
drawing of such boundaries, if one were to look for these
in the kind of intellectual creation concerned, would prove
quite difficult in many cases. For example, it would be
hard to decide whether poetic works belong to the realm of
art or to that of literary works; similarly, one would
have trouble deciding whether drawings of a scientific
nature belong to the realm of art or to that of [scholarly]
literature. It is only possible to draw such a boundary
with objective certainty by considering the difference in
the means of representation: then the works of poetic
literature clearly belong to the realm of literary works,
whilst works of graphic
______________________
*
**
***
**** Federal directive 1837
Chapter 1 Page 32
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or plastic art (whatever they may have as their content)
belong to that of artistic works.*
Musical compositions also fall into the category of
literary or artistic works of any kind.**
II. Requirements which an object of publishing
right must fulfil
A. Intellectual creation
§ 13.
From the nature of literary and artistic works, which
are, according to the laws, the object of publishing right,
and from the tenet that every publishing right must be based
on authorship,*** we may derive as a guiding principle for a
more detailed elucidation of the objects in question the
following: a publishing right can only come into effect for
an object which constitutes an individual intellectual creation,****
and, moreover, the author’s right regarding such an object
extends only insofar as the latter arose from his intellect.^
_____________________
*
** Austrian laws; Prussian Copyright Act 1837
***
****
^
Chapter 1 Page 33
121
Now, this guiding principle is also exhaustive in the
sense that it does not seem necessary to stipulate further
that the [intellectual] creation fulfil the more far-reaching
requirement of originality or independence. Such a requirement
is to be found neither in our positive laws,* nor in the
nature of what we are discussing. Thus, it is without
justification that Jolly** demands that for a literary work
to qualify for publishing right it must contain a fully
rounded out idea in original form. Apart from the impossibility
of making an objectively reliable judgement on such originality,***
this demand is wrong for the simple reason that a literary work
can also be created even when its form is imitative (i.e. not
original), or its sequence of thoughts is incomplete, and there
is no question that it too is entitled to publishing right.****
Accordingly, we must now look in more detail at the
difference between production and reproduction, that is,
between the original and a copy.
__________________________
*
** Jolly
*** Friedländer
****
Chapter 1 Page 34
122
Generally speaking, it is only natural that a publishing or
authorial right can only result from authorship, that is,
from independent creation, rather than from the mere
reproduction of another (someone else’s) work.* This can be
seen most clearly and immediately in artistic works, namely
in the relationship between the original and a copy. A copy,
insofar as it is a copy, that is, the reproduction of an
already existing work, does not qualify for a publishing
right of its own.**
Even if we disregard such reproductions which fall
into the category of unauthorised reprinting,*** and which
for that very reason cannot lay claim to any right, that is,
even in the case of an authorised copy (which is what we are
assuming here), when considering**** if it can be the object of
______________________
*
** Volkmann 1856
*** Volkmann
****
Chapter 1 Page 35
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a publishing right of its own,* all that matters is
whether the copy is also an intellectual creation of
the person who produced it, that is, whether in its
conception, composition, representation, or execution,
it can be said to have arisen from within his intellect.
For insofar as there is such genuine production, the right
of the producer to it is to be protected.** In this respect,
therefore, the copyist has a right to exclusive exploitation
of his copy.*** A copper-grate engraver has
________________________
*
**
*** Blanc; Harum
Chapter 1 Page 36
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without doubt an exclusive right to arrange for the
mechanical reproduction of his copy, that is, of the
copper engraving he had created.* Jolly** is thus
mistaken when he asserts, without any further explanation,
that one is allowed to reproduce a copy.
It is only a publishing right with regard to the
original that the copyist cannot acquire as such.***
However, when the original artist has himself made a copy,
his right of exclusivity covers not just the peculiarities
of this replica,**** but also the whole substance of the
original work, so that by virtue of his right he can prevent
any further reproduction of the latter, as well as of the
copy he had made himself. It is for this reason that Austrian
law treats such replicas or reprints as original works.^
It is also self-evident that when a natural object
is copied simply by mere manual skill, without any
intellectual creativity, there can be no question of
authorship upon which to base a publishing right
_______________________
*
** Jolly
***
****
^ Austrian laws; Prussian laws
Chapter 1 Page 37
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as is, for example, the case with plaster casts of a
skull etc.*
The same principles which make it necessary to
consider the publishing right of a copy in the case of
artistic works, are also applicable to the adaptation of
literary works. It is just that here we come across more
intricate and complicated situations. Generally speaking,
though, the principle remains valid that the production,
insofar as it is genuine authorship, is entitled to a
publishing right.**
If one applies this principle to the various forms in
which adaptations or combinations of literary or artistic
works can occur, we can draw up the following list of
categories:
1) Excerpts. These cannot be considered as works which
entitle the excerpter to a publishing right if the latter has
on the whole copied word for word someone elses work,
possibly leaving out the odd paragraph or section. They do
however qualify for publishing right if he renders the
content of another persons ideas in his own words and style,
abridging or adapting them as necessary, for then we are
dealing with a modification.***
2) The adaptation of someone elses work. This does
constitute
_________________________
* [Gastambide]; Renouard
**
*** [unreadable legislation]
Chapter 1 Page 38
126
a separate literary work and is therefore the object of a
publishing right for the adapter, insofar as the adaptation
really did involve creation on the part of the adapter,
rather than mere replication of someone else’s work. Thus
it is legitimate to claim an independent publishing right
for a work which, although it was inspired by or based on
someone else’s work, nevertheless modified the latter in
such a way as to constitute what is essentially a new object
of [literary] circulation. For the adaptation is entitled
to a publishing right insofar as the authorship of the
adapter is manifest.*
3) Editing someone else’s work in a fundamentally
different rendition can also be seen as an independent
creation and hence as the object of an independent
publishing right, insofar as the former has, in any given
case, the character of an original adaptation.** However,
here too the publishing right extends
__________________________
* Wernher; Volkmann
** Friedländer; Hamburg directive 1847
Chapter 1 Page 39
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only so far as the authorship of the editor is manifest.*
For example, in the emendation or provision of someone else’s
(say, an ancient classical) text with variants, notes and
such like, the publishing right extends only to these
additions or amendments.** Precisely for this reason, the
finder or editor of a hitherto unknown ancient text, however
important the latter may be,
________________________
*
** Saxonian Copyright Act 1844; [Haubold]
Chapter 1 Page 40
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cannot claim an exclusive publishing right to it.* Thus,
the editor of a palimpsest, despite having restored the
text thanks to his physical and intellectual sagacity
and very hard work, cannot claim publishing right for
this restored text.** Accordingly, anyone can print off
copies of this text.*** However, if the editor of the
palimpsest adds his own variants, notes and such like,
he is entitled to a publishing right for these.****
The edition and publication of hieroglyphs would
have to be treated in a similar manner.^
________________________
*
**
*** [unreadable name]
****
^
Chapter 1 Page 41
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From the principle that the publication of an already
existing work does not give rise to a publishing right, it
also follows that a new edition of a work which had appeared
earlier cannot be the object of a new publishing right. To
qualify for this, the new edition would have to appear as
an essentially new creation.*
4) According to the principle that every publishing
right is based on authorship, a commentary of someone else’s
work can also constitute the object of an original publishing
right for the commentator, but only insofar as his authorship
is manifest. That is, the publishing right cannot extend to
the text of that work which the commentator may or may not
include in his commentary. The same holds for the annotations,
_______________________
* Austrian laws; Württemberg rescript 1816; Hamburg directive
1847
Chapter 1 Page 42
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explanations and such like, which are written to
accompany someone else’s text.*
5) This distinction between components which belong
to someone else and new creation also serves as the
criterion for discussing compilations. The individual
components which are included in the compilation do not
thereby become new works or objects of a separate publishing
right.**
If, however, the individual components of which the
compilation is made up or which are included in it, wholly
or partly,*** were not
_________________________
*
**
***
Chapter 1 Page 43
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independent literary works, but just fragmentary thoughts
or utterances which were devoid of any literary quality*
until the compiler’s work conferred them this quality,
then we are dealing not with the compilation of others’
or already existing** literary works, but, rather, with
an original creation created by using the thoughts of others,
whereby authorship in the literary sense, as well as a
publishing right, can be ascribed only to the activity of
the person who carried out the compilation.
The most frequent case, though, is when the compiler
merges various works, which before that already existed in
the capacity of literary works, into his anthology.
Now, if this merging*** is of a kind that it
fundamentally and predominantly displays the character of a
new intellectual creation, the compilation as such qualifies
for its own publishing right.****
Depending on the circumstances,^ this can be achieved
in an adaptation, an amalgamation into a new whole, or simply
______________________
*
**
***
****
^
Chapter 1 Page 44
132
in the organization [of the texts] according to
substantially new viewpoints,* insofar as it is only in
this way that the whole [compilation] can acquire an
independent value of its own for literary circulation.**
Any alteration which the separate components may have
suffered in this process is of no further relevance to this
question, since the publishing right of the whole work is
considered separately from that of the various components
which were originally produced by others.*** However, the
fact that these individual works have been included in a
compilation does not qualify them in any way for a new
publishing right as such.****
Therefore, where the main significance of the
compilation lies solely in these individual works and their
reproduction, it is impossible to speak of a separate new
publishing right. A conglomeration of individual literary
works does not in itself constitute a new literary
_____________________
*
**
***
****
Chapter 1 Page 45
133
work or the object of an independent publishing right; it
is not a compilation in the true sense of the word.*
For the very reason that we are here taking into
account not the individual components but, rather, their
elaboration into a whole, when considering a compilation it
does not matter whether those individual components were
(all or a number of them) originally works of the compiler
himself.** This means that adding one’s own works to a
compilation cannot somehow elevate those components written
by others or the very compilation itself to an object which
qualifies for its own publishing right.*** As compilations
in the sense we have emphasized above, we may name
chrestomathies,**** collections of samples,
___________________________
*
**
*** Blanc
****
Chapter 1 Page 46
134
encyclopaedias.* If the editor of an encyclopaedia has
elaborated material written by others so as to produce a
new work,** then the latter, that is, the encyclopaedia as
a whole,*** constitutes for him the object of an independent
publishing right. The originality of this elaboration, which
is intrinsic to the concept of authorship, cannot be easily
reduced to an external criterion such as, say, the length of
one work or another.****
6) The principles which apply to compilations are also
valid for musical and artistic works, both when they are
combined amongst themselves^ as when, say, a graphic
representation is accompanied by a text,^^ or when a musical
composition is combined with literary works.^^^
_______________________
*
**
*** Austrian-Sardinian treaty
****
^
^^
^^^
Chapter 1 Page 47
135
B. The purpose of the work is its literary or artistic circulation
§ 14.
The intellectual creation for which a publishing right is
claimed must be of a literary or artistic kind,* and its
essential purpose must lie in the representation of an
intellectual content for circulation,** rather than for any
other material goals. There are many creations of intellectual
origin and nature which simply cannot be literary or artistic
works because their function lies not in the literary or
artistic spheres, but, rather, in other walks of life.***
This distinction is most obvious with regard to artistic
works.****
For industrial products, tools, and
___________________________
*
** Harum
***
****
Chapter 1 Page 48
136
other objects of material utilization,* a publishing right
is quite unconceivable because these objects come into
consideration not really as manifestations of an individual,
intellectual content, but, rather, as material things,
even if they have been fabricated in the most artistic
fashion.** Incidentally, it is possible to fix onto an object
whose original and primary function is a material one, an
artistic representation in such a way that the object becomes
the carrier of the artistic work.*** In such a case, the
latter qualifies for a publishing right, but not the former.
Moreover, the two objects which have been combined externally
in this way must be clearly distinguished in legal discussion.****
If such abstraction is not feasible, that is, if the
object, apart from its material purpose, cannot be regarded
as an exemplar of the artistic representation which was fixed
onto it, then this
_________________________
* Heydemann
**
***
**** Blanc
Chapter 1 Page 49
137
representation has no essential significance and one
cannot speak of a publishing right.*
The same principle is applicable to designs of
industrial products.** They too are the object of a
publishing right only insofar as they possess the
characteristics required for this,*** apart from their
primary function.**** According to Saxon law, the designs
of wool garments, embroideries, and such like, are excluded
from the legal protection given by publishing right.^
Incidentally, the discussion of the extent to which artistic
works may be used in the manufacture of such designs, also
touches upon certain aspects of unauthorised reprinting.^^
The question as to whether architectural plans, dress
patterns, designs,^^^ and such like constitute an object of
publishing right is more problematic. Here too one must
separate two aspects of the matter when evaluating it from
a legal point of view:
______________________
* Harum
**
***
****
^ [Haubold]
^^
^^^ Harum
Chapter 1 Page 50
138
if the function of a sketch, design, plan, drawing and
such like does not involve its being used directly* for
circulation in a number of copies as a representation of
the content which is impressed on it; if, on the contrary,
the product serves a concrete material function, then the
prerequisite for a publishing right is absent.**
However, if the given representation or illustration -
even if it had originally served a material use - is suitable
to be brought into circulation as an artistic representation,
be it for teaching purposes or for aesthetic contemplation,
then it unquestionably constitutes an object of publishing
right.***
__________________________
*
**
*** Friedländer
Chapter 1 Page 51
139
Similarly, artistic representations of works of
architecture etc. whose primary function is to serve
as illustrations in books also qualify for a publishing
right.*
In the light of what has been said, there can be no
doubt that sketches and drawings of artistic works qualify
for a publishing right insofar as they are objects suitable
for circulation.** The function, say, of serving as a sketch
for a painting,*** does not disqualify the former from a
publishing right, since this function does not lie outside
the sphere
____________________
*
**
***
Chapter 1 Page 52
140
artistic circulation. All that matters is that the main
significance of the sketch etc. is that of representing
an intellectual perception.*
The function of picture-books and picture-sheets,
namely to be used by children for colouring, cutting out,
pasting over, and playing with the pictures, is not one
which disqualifies them from a publishing right. For in
their fundamental significance picture-books also represent
an intellectual perception or idea, even if the degree of
their aesthetic value happens to be very inferior. Their
use in this way by children does not put them into the
opposite category to artistic works, that of objects
whose primary function is a material one.**
Even if architectural sketches and illustrations can
constitute an object of publishing right,*** the same does
not hold for the architectural works themselves. The
essential significance of a building lies first and foremost
in its material use: we are not dealing here with an
exploitation that is made possible by the reproduction,
publication, and bringing into circulation of an intellectual
idea. Even if one were to set great store on the intellectual
substance of the building or the artistic ideas which it may
embody, the architect was nevertheless certainly not
intending to
__________________________
*
** Harum
***
Chapter 1 Page 53
141
exploit his work by reproduction of his artistic ideas;
rather, he was concerned with the construction and use
of the building for material purposes. A reproduction
of the building by mechanical means would anyway be
impossible, and even if someone else were to construct
a similar building inspired by the original one, which
incidentally is just a case of imitation,* this does not
encroach on the commercial exploitation which the architect
draws from his work. Drawing or painting the building
encroach even less on the architect’s exploitation of his
work.**
Accordingly, Bavarian law explicitly excludes works
of architecture from the category of objects which are
entitled to publishing right.*** Representations of
architectural works, on the other hand, including sketches
and designs, can, according to Bavarian law, constitute
an object of publishing right.****
Practical inventions, such as those employed in
industrial production, belong to a different sphere to
that of publishing right.
______________________
*
**
*** Bavarian law
**** Harum
Chapter 1 Page 54
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With such inventions the idea or the intellectual
perception of the inventor and the representation of
this idea are essentially the means of producing an
object which serves a material purpose, whereas for
the author of an artistic or literary work it is
precisely the idea or perception that he wants to
represent, reproduce, and put into circulation in a
number of copies.
It is true that protection by patent gives the
inventor similar privileges to those which publishing
right gives an author, but in fact the target of each
is fundamentally different. A patent does not forbid
third parties from representing and exploiting the same
object; what it does forbid is the use of the individual
means which were applied by the original inventor in
order to realize his idea and produce that object, e.g.
in the case of a spinning machine the particular
construction of each cog-wheel. However, anyone else
is allowed to realize the same aim using a different
construction design. Neither the inventor’s idea,
which merely serves as the means of attaining material
aims, nor the material object which is produced thanks
to the invention, can be put into the same category as
the works of an author.*
______________________
* Harum; German publishers’ memorandum at Congress of
Vienna; Gräff; Pütter
Chapter 1 Page 55
143
Just as in the above discussion we have distinguished
between some classes of artistic works,* we must also
separate from the category of literary works a class
of products which does not belong to the literary sphere
and which therefore cannot constitute an object of
publishing right.
To this class belong first and foremost laws and
decrees proclaimed by the State. These constitute an
announcement by the State to the whole community which
therefore becomes public property on publication and cannot
be the object of an exclusive publishing right.**
On the other hand, an adaptation*** of laws or decrees
which is undertaken by private persons can, insofar as it
otherwise displays the characteristics of a literary work,
constitute an object of publishing right. The same holds
for a bill or draft law which has been prepared for, or
is suitable for, literary circulation.****
__________________________
*
** [Mittermaler]; Blanc; [Gastambide]
***
****
Chapter 1 Page 56
144
A mere edition of laws or decrees cannot be turned
into a literary work by a monopoly or privileges or the
prohibition of unauthorised reprinting. The latter would
merely place an altogether quite different category of
objects superficially next to that of literary works under
the aegis of a prohibition on unauthorised reprinting.*
Such a prohibition is in place in the Grand Duchy of Hessen.**
_____________________
* Harum; Renouard
** Hessen law 1830; Austrian law; Bavarian directive;
Harum
Chapter 1 Page 57
145
State treaties also fall into the same category as
laws. Their purpose is to set down the arrangement reached
by the will of the states concerned, and their text
therefore belongs to all as public property.*
On the other hand, an edition or special compilation
of such documents can qualify for a publishing right.**
________________________
*
**
Chapter 1 Page 58
146
Official announcements, edicts, the publication of
ordinances, decrees, and such like cannot be considered
as literary works, since they do not belong to literature;
rather, they serve the material purpose of an official
communication.* This is also the case with proclamations,
pastoral letters, and similar enactments.**
However, if these texts are given a literary form
then the resulting literary works do indeed constitute an
object of publishing right.***
_______________________
* Friedländer; Harum
** Heydemann; Harum
*** Blanc
Chapter 1 Page 59
147
The same principles apply to official reports,
official correspondence, official instructions and similar
documents elaborated for official purposes. Primarily they
belong to a different sphere to that of literature, but they
may not be brought into literary circulation (if they are
suitable for that) without the permission of their originator;
and if, apart from their official status, they can be regarded
as literary works by virtue of their content, then they
constitute the object of a publishing right.*
In general, if a document has been elaborated by a civil
servant, the author’s right to dispose of it as he chooses is
constrained in accordance with the given circumstances, though
this has no implication for the quality of the work or the
status of his authorship. One therefore has to distinguish two
questions: 1) to what extent is the document as such, by virtue
of its content and form, a literary work? and 2) to what extent
is the author’s right of disposition constrained by his
official status? The first question can be resolved in
accordance with the general principles about the requirements
that literary works must fulfil, whilst the second must be
decided in the light of the specific circumstances. In this
respect
______________________
*
Chapter 1 Page 60
148
the author of the items of a law, or the reporter of a
commission which is considering a draft law, cannot
prevent the publication of his work as it arises in the
given circumstances.* Similarly, the government has the
right to print a report it has commissioned from an assessor
on some public matter. On the other hand, the obligations
of official confidentiality and such like may well impose
restrictions on the author as to the publication of his
work.**
Reports whose content is scientific or technical
present us with a dual aspect: insofar as they merely
deal with a concrete case and a material use, they remain
outside the sphere of literature, but if by virtue of their
content alone they are of general interest and thus suitable
to enter the literary sphere, then this makes them into an
object of publishing right.
For example, if, during a trial, a report was presented
about the value or state of a merchandise, this does not in
itself constitute a literary work. Therefore, if someone
relating this particular trial were to include in his
published account the report word for word, no publishing
right would be violated with respect to the latter, because
not until the literary account of the trial did this report
become part of a literary work.
_________________________
* [unreadable name]
**
Chapter 1 Page 61
149
If, on the other hand, a general issue is discussed
in a report in such a way that the latter is immediately
deemed suitable to enter literary circulation, e.g. when
a physician discusses in a scientific report the treatment
of cholera, or a scientist that of potato blight, the fact
that such a text owes its origins to a specific practical
case or to a commission by the authorities, does not divest
it of the character of a literary work.*
The same principles apply in general to judicial
records, that is, to minutes of the proceedings, pleadings
and the speeches of lawyers, the statements of experts or
witnesses, recorded in the course of law trials etc. All
these are not literary works, as they belong to a
fundamentally different realm to that of literature.
Consequently, it follows that:
a) when true literary works, whose purpose it is to
enter literary circulation, are merely written in the form
of official relations, as is the case, for example, with
fictitious legal documents used for teaching purposes, or
_______________________
*
Chapter 1 Page 62
150
with stories, disquisitions, correspondences etc. which are
dressed up as official documents, then such a text must be
considered to be a literary work and hence an object of
publishing right. This is also the case
b) when real official documents, disregarding the
original purpose of their creation, are edited as literary
works so as to be brought into literary circulation. For in
this way they leave the sphere of their original purpose and
enter that of literary works. This namely is what happens
when law cases, legal precedents, proceedings, and such like
are edited and published for scholarly purposes.
If, however, the intention behind such publication is
not a literary one and it is instead directed at realizing
the concrete material aims called forth by the legal document,
e.g. when a court of justice publishes a verdict it has passed,
then we are not dealing with literary activity as such and
there is no object of publishing right, whose purpose is to
protect only the commercial interests of authors.*
It is worth mentioning, though, that insofar as the
statements and speeches made by any given party during a
trial are suitable for literary divulgation, the latter is
reserved to their originator’s publishing right.** He alone
has the right to bring his speech, just as he had composed it,
into literary circulation by publishing it.
The public nature of a speech does not divest it of the
quality of a literary work, even if public discussion of the
speech, e.g. reports made on it in public newspapers
____________________
*
**
Chapter 1 Page 63
151
can be freely undertaken by anyone.* This applies not
just to speeches on scientific subjects given at an
Academy conference or the like,** but also to the speeches
of a politician or member of parliament, and indeed to any
official speeches. However, when Bluntschli*** is prepared
to concede the right of every third party to reproduce such
speeches even in special copies, e.g. for political purposes,
he is probably going too far and certainly further than his
justification for this would allow. He argues that such
speeches “belong to the public and the community at large
to so great an extent that no individual authorial right
should be allowed to prevent their divulgation”, but in fact
the speeches belong to the public only in terms of their
intellectual content, as it is disclosed by the usual media
of public communication, namely the public newspapers. This
does not mean that the authors of these speeches lose their
right to bring them into circulation as objects of commercial
exploitation.****
________________________
* [Gastambide]
** [Gastambide]
*** Bluntschli
**** Harum
Chapter 1 Page 64
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Even speeches held in public are entitled to as much
protection as public lectures or sermons from the
commercial exploitation by any third party, and the
orator by no means forfeits his right to draw revenue
from his speech by publishing it. Thus, it is clear
that “the public” must be understood in the sense
that anyone is entitled to hear the speech and
consequently, since ideas can always be freely divulged,
that person can notify others about the content of the
speech which he had heard. But this does not mean that
the orator’s authorship, and the legal consequence
thereof, namely the publishing right, somehow ceases.*
As soon as the speech becomes a literary work, its
exploitation in this form belongs to the author alone,
who may transfer it to others.
In the case of public notices another factor must
be taken into account: such notices or announcements
are not in themselves literary works and so do not
constitute an object of publishing right for the person
who wrote them. Thus, it is not just their public
character which causes this to be so. This category
includes death notices,
______________________
* Federal directive 1837
Chapter 1 Page 65
153
sales offers, advertisements for places of entertainment
etc., followed by book catalogues, programmes of celebrations,
railway timetables etc., as well as play-bills, stock-
exchange lists, price lists etc.* Their whole significance
lies outside the literary sphere and consists of a specific
material purpose. They just serve to give notice of certain
facts, and their written form is merely a medium with no
significance as such. It is clearly impossible to speak
of authorship here.
However, one must distinguish between such notices
and their compilation in an advertising journal, for the
latter does indeed imply authorship and entitles the
journal’s editor to a publishing right.**
Inscriptions on monuments and the like can also not
be considered objects of publishing right, since their
purpose is not that of literary circulation, even though
they may very well, depending on the content, be the
result of genuine intellectual creation.***
Standard texts and forms whose purpose is not at
all to represent an intellectual content, but, rather,
to find an immediate material use, and which therefore
do not belong to the realm of literature, are also not
objects of publishing right. To this group belong forms
used for contracts and certificates, e.g. freight
warrants etc.****
________________________
* Blanc; Harum
**
***
**** [Haubold]; Heydemann
Chapter 1 Page 66
154
If genuinely literary works are used as such
on certain occasions, e.g. songs as church hymns,
books as text-books for lectures or school lessons,
the purpose which they are serving is not one which
deprives them of their literary quality.*
Communications made to specific persons in the
form of letters have a special function which does
not primarily belong to the literary sphere. A
letter, for example, which merely conveys the
exchange of information between two specific persons
regarding individual matters and material purposes,
cannot be treated as a literary work nor, therefore,
as an object of publishing right.** However, if an
epistolary communication were to contain a scholarly
discussion, then there can be no doubt as to its
literary character and qualification for publishing
right.
Quite often unquestionably literary works are
______________________
* Heydemann
** Friedländer
Chapter 1 Page 67
155
presented in the form of letters,* although they were
not addressed with specific persons in mind, or, even
if they were, this was not their only purpose. The
epistolary form is therefore no conclusive criterion.
Neither is the intention in which the letter was
written decisive,** since quite often a correspondence
is only retrospectively assigned for literary circulation
and published, although this in no way makes it less
of a literary work. Thus, the question as to whether
a letter can be considered an object of publishing
right cannot be resolved by reference to its function
as a letter; rather, it must involve a consideration
of its content, for, in general, it is not the form
which marks out a work as an object of publishing right.***
If by virtue of its whole intellectual substance, a
letter is suited to enter literary circulation, then
it is a literary work and hence an object of publishing
right.****
It is without any justification that Jolly^
rejects the literary quality of letters by denying that
letters in their original form can be suitable objects
of literary circulation. This is an assertion which any
publisher’s catalogue will belie. The “historical
interest” to which
______________________
*
**
***
**** Austrian and Prussian laws; Harum
^ Jolly
Chapter 1 Page 68
156
Jolly seeks to reduce the significance of such publications,
is certainly not what constitutes the essence of a literary
work. This interest, as well as the standing of the author,
his literary profession, and also the importance of the
subject treated, can only modify the literary value of
a literary work and justify its publication, but a
published correspondence remains a literary work even
if lacking in all historical interest.
Any work which is capable of appearing in literary
circulation, or which already has been published, is a
literary work. From this it follows that letters which
have been printed for literary circulation against the
will of their author must also be considered literary
works and an object of publishing right.*
A different question is that of the publishing
right for a collection of such letters to which the
authors or their legal successors can no longer assert
a claim because the term of their individual publishing
right has expired. A collection of this kind, by virtue
of its being the work of the compiler, can constitute
for him an object of publishing right.**
Now, just as, on the one hand, those objects for
which a publishing
________________________
* Bluntschli
**
Chapter 1 Page 69
157
right is claimed, have to possess an essentially
intellectual, a literary or artistic, quality, so
the concept of a literary or artistic work is, on
the other hand, endowed with a material quality based
on property law. For the publishing right is essentially
a right of material exploitation and hence presupposes
such objects as are capable of being exploited in this
way. It is an exploitation which is made possible by
the literary and artistic circulation of such works.
One must not, however, expect the author, before or
during the creation of his work, to have as his conscious
aim such exploitation, for it is often the case that
a writer who is working out of scholarly interest does
not immediately think of his possible financial gain.
This, though, does not mean that he has forfeited his
work and the remuneration which he may receive from
a publisher.
Thus, when Saxon law demands that the work must
actually have been conceived with financial gain in
mind,* this is true only insofar as no contrary
intention has been declared [by the author]. In cases
of doubt, every work which is suitable as such for
commercial exploitation must be considered to have
been intended for this (in accordance with its nature).
C. Form and content of the literary or artistic work
§ 15.
A work is considered to be a literary and artistic
work and, therefore, an object of publishing right,
when it is suited to enter literary or artistic
circulation.**
________________________
* Saxonian Copyright Act 1844
**
Chapter 1 Page 70
158
It is not necessary, however, for it to have already
come into circulation. Accordingly, unpublished works,*
that is, manuscripts, and even oral communications
which have not yet been set down in writing,** are
by no means excluded from publishing right.
When Goethe and Schiller, for example, gave free
rein to their grievances [against the rest of literary
Germany] in the Xenien, they produced
thoroughly literary works which were ready for
immediate publication and undoubtedly constituted an
object of publishing right. However, when Goethe treated
Eckermann to his conversations, Eckermann was able to
edit the content of these and thereby present a
literary work; but had someone else recorded those
_____________________
* Federal directive 1837; Austrian law; Prussian
Copyright Act 1837; Bavarian law; Saxonian Copyright
Act 1844
**
Chapter 1 Page 71
159
conversations between Goethe and Eckermann on the
spot and published them, this would not be an
infringement of a publishing right of Eckermann’s
or Goethe’s, since before they were edited on paper
these conversations could not be an object of
publishing right, that is, a literary work.
However, had Goethe in the course of these
conversations suddenly improvised a poem, the latter,
by virtue of being completely suited to become a
part of literature, would as a literary work
immediately have constituted an object of publishing
right for Goethe, and anyone else who reproduced it
without his authorisation would have been guilty of
illegal reprinting.
A musical composition which has not yet been
put to paper is in an analogous position to that
of an oral communication [as discussed above].
A composition which has only been played is without
question just as much an object of publishing
right for the composer as if he had written down
its score.*
In general, the oral character of a communication
cannot serve as grounds for excluding it from the
objects of publishing right, even if the person who
made it did not originally intend it for literary
circulation** and his words were, instead, pronounced
in all spontaneity and
_____________________
* Harum
** Schelling-Paulus legal case
Chapter 1 Page 72
160
addressed to a specific circle of people or to an
unspecified crowd of listeners. For this in no way
excludes the possibility that his address could be
published and brought into literary circulation,
thereby making it an object of commercial exploitation,
as long as it possessed the quality of a literary work,
as far as form and content are concerned.* In this case
the originality or significance of the form in which
the person’s words are pronounced is irrelevant. That
is why Jolly** is wrong to exclude from legal protection
those oral communications in which only the content,
but not the chosen form, can be said to have some value.
For the notion of a literary work, which is the decisive
concept, does not depend on this [value of the form].***
Thus, scholarly communications, for example, can
constitute literary works, even if the form in which
they are presented were devoid of all value. Jolly’s
criterion would put legal protection at the mercy of
purely subjective opinions. Another factor which is
irrelevant is the nature or size of the audience in
front of which a person pronounces his words.****
________________________
*
** Jolly
*** Harum
****
Chapter 1 Page 73
161
Even less does the oral character of a
communication imply a renunciation of the exclusive
publishing right.* The fact that an address was
delivered orally has absolutely no bearing on the
publishing right. For this reason it cannot be
argued either that where the person delivering the
address, e.g. a public lecturer, has been employed
in order to give such addresses,** he has somehow
forfeited his publishing right.
As far as the provisions which positive law
makes for oral communications are concerned, all
that the federal decrees say is the principle which
we have been applying here throughout, namely, that
literary works of all kinds qualify for publishing
right.*** The laws of the various German states
make their own special provisions- sometimes,
though, depriving genuine literary works of publishing
right or endowing with it products which are not
really literary works.
Austrian law only accords protection to such
addresses as are delivered with instruction, spiritual
edification, or entertainment in mind.**** Underlying
this is the principle that a speech, in order to be
considered a literary work, must essentially not
serve as the means for a material purpose extraneous
to literary circulation;
____________________
* Eisenlohr 1855
** Blanc
*** Federal directive 1845
****
Chapter 1 Page 74
162
rather, its fundamental purpose must be the
representation of its intellectual content.
Addresses delivered for the purpose of
entertainment are also covered by this principle,
insofar as their sole intention is to provide
entertainment by means of their (material and formal)
content.*
In Prussia the legal protection of oral discourses
is limited to sermons and lectures,** which means that
poetic improvisations, for example, would seem to be
excluded.
Bavaria, like Austria, protects those discourses
which are delivered for the purpose of instruction
or entertainment.***
Saxon law keeps to the general principles
which we have discussed here, and emphasizes that
it should be irrelevant whether a work is presented
to the public in the form of an oral discourse or
is divulged otherwise.****
In Württemberg only “sermons and lectures
which have been given in a state of the German
Confederation” are treated on a par with protected
printed publications.^
Since, as we have discussed earlier, the legal
protection of a work cannot be made conditional on
its entry into circulation,
______________________
*
** Prussian Copyright Act 1837
*** Bavarian law
**** Saxonian Copyright Act 1844
^ Württemberg law
Chapter 1 Page 75
163
it must also be so that the way and manner in which
a work is introduced into circulation cannot be what
decides whether it qualifies for legal protection.
What is more, the question as to whether the literary
or artistic work was brought into circulation by the
author under his own name or even whether this was
done by the author himself,* is irrelevant when
deciding if the work is an object of publishing right.
Thus, anonymous, pseudonymous, and posthumous works
also qualify for legal protection.
If we first of all consider anonymity and
pseudonymity, it is fair to say that the nature of a
work is not affected by whether the author has
disclosed his name to the public or whether he has
put an adopted name or no name at all on the title-page
of his work.** By no means does anonymity imply a
renunciation of publishing right, since in general
such renunciation cannot be assumed, and it is wrong
to deduce it from the fact that the author has
concealed his name given that there are various
reasons why he might have chosen anonymity, e.g. if
he did not want to subject himself openly to critical
scrutiny, whilst not disdaining the financial gain
that accrued to him from his work. The only effect
of anonymity or pseudonymity is to modify the
calculation of the term of legal protection and the
clarification of the person who
______________________
*
** Maurenbrecher 1855
Chapter 1 Page 76
164
is to be legitimised as the holder of the publishing right.*
Even less relevant to the question of authorship and
the literary qualification of a work for publishing right,
is whether or not the publisher is named. It was only as
a prerequisite formality for legal protection that the
federal Diet of 1837** demanded that the publisher’s name
be stated on the work. The same formality is required by
Bavarian law.***
Just as with unpublished manuscripts, one cannot deny
the literary quality and hence publishing right of posthumous
works. For the fact that a work is published after its author’s
death cannot affect a property right which is after all based
on authorship; the only effect it can have is a modifying one
regarding the person who is to exert this right and how long
he is to exert it for.****
If, therefore, when determining which objects qualify for
a publishing right, it is irrelevant how and by whom a work
was brought into circulation, this means that the class of
literary or artistic phenomena to which a work is ascribed
and, similarly, the form and shape in which it comes into
circulation, all have no bearing on the question as to
whether it qualifies for a publishing right.
______________________
*
** Federal directive 1837
*** Bavarian law 1840
****
Chapter 1 Page 77
165
The object of a publishing right must always be a
literary work, irrespective of whether it comes into
literary circulation as a book, treatise, pamphlet,
as one whole or in parts, in sequential order or
otherwise, as a journal* or in any other form.
Similarly, the publishing right for an artistic
work must remain uncontested, irrespective of whether
it is fashioned as a painting, drawing, sketch, design,
copper or steel engraving, lithographic print, woodcut,
or as works of the art of engraving and etching, or as
a statue, relief, sculpture, made with a chisel or cast
from a model, or as the work of any other plastic or
graphic art,** as long as an artistic creation and
authorship can be shown. This is what is absent in
daguerreotypes, photographs, copies made by galvanoplastic
methods, natural self-pressing and such like.***
In musical compositions too authorship can manifest
itself in several forms, e.g. as a simple melody, as a
theme and variations, as a symphony or sonata, as an
oratorio, as sacred music, as a chorale, as spiritual
or worldly music, as a march, dance, opera, musical
tableau, pot-pourri, improvisation etc., as incidental
music for the stage, concert-hall music, chamber music,
_______________________
* Heydemann
**
***
Chapter 1 Page 78
166
dance music, military music, as a vocal composition
or for any number of instruments.*
All these kinds of musical composition can
constitute the object of a publishing right, as
long as they satisfy the general requirements for
such an object.
In this respect it is irrelevant whether
the composition is intended for entertainment,
spiritual edification or, say, for teaching
purposes. With regard to the latter, singing and
piano exercise manuals qualify as much for a
publishing right as do textbooks and teaching
manuals.
Similarly irrelevant to the legal
consideration of which objects qualify for
a publishing right is the manner of diction
(in prose or poetry, and within the latter
the poetic genre: epos, drama, lyric poetry
etc.**), as is the manner of presentation
(in popular or scholarly exposition***), and
likewise the means of expression and the
language signs used (letters, ciphers, etc.),
as long as the work is written in such signs
as are appropriate, that is, intelligible, for
circulation. Incidentally, mathematical drawings,
geometrical, stereometrical, algebraic, and
arithmetic signs without any accompanying text
do not yet qualify for a publishing right of
their own, since on their own they do not yet
constitute an intellectual content or notion,
__________________________
*
**
***
Chapter 1 Page 79
167
a scientific idea or concept. They will therefore
only be found as subordinate components of literary
works in circulation, not as works in their own
right, though not at all for the reason suggested
by Jolly,* namely that “a geometrical drawing, for
example, is just a symbolical means of representation
of the idea which underlies it”. For why should a
symbolical means of representation be excluded from
publishing right? If, for example, one were to write
a book in hieroglyphs instead of letters, as long as
it was suitable for circulation (i.e. intelligible)
it would undoubtedly qualify for a publishing right.
Similarly, a work which can be expressed in
mathematical signs and one which is composed in
ciphers or pictures (such as puzzles, charades,
numerical riddles, rebuses etc.) must also be
considered as a possible object of publishing right.**
In determining the objects that qualify for
publishing right it is also irrelevant in what
language a work has been written,*** be it in the
native language of the place of residence of the
author or publisher, or a foreign, modern or
classical (scholarly), language, since literary
circulation does also include works composed in
a foreign dialect.
The language does come into question in a
different context, namely when considering whether
a translation
_______________________
* Jolly
** Jolly; Harum
*** Blanc
Chapter 1 Page 80
168
counts as an object of publishing right. There is no
doubt that a translation is a literary work,* even if,
not unlike a copy, its intellectual substance is usually
derived from the translated original. In this respect
the publishing right for a translation cannot extend
to that which belongs to the translated original work,
but merely to what is peculiar to the given translation,
to what actually constitutes original creation on the
part of the translator. For this very reason a translation
does not justify the right to exclude other translations
of the same work.**
However, there also arises the new question as to
what extent the translation as such is unauthorised
and therefore not qualified for protection, i.e. to
what extent the translator by his translation encroaches
on the publishing right of the original work he has
translated. This question will be discussed when we
consider the objective facts of unauthorised reprinting.
At this point we should just say in general that the
translation must be an authorised, legitimate one,
in order to qualify for a publishing right.***
If, then, it is the intellectual content which
makes up the essence of an object of publishing right,****
this means that the legal protection of a work cannot
be made conditional on its external size. Thus, a work
of very modest size can, as an intellectual creation,
clearly have
_________________________
* Austrian law; Hamburg directive 1847; Hessen law 1830;
Gotha directive 1828
** Hessen directive 1829; Hessen law 1830
***
****
Chapter 1 Page 81
169
a value in circulation. It is not, however, on the
sum-total of this value that the legal protection
of a work ultimately depends.* Neither does this
protection cease when the work enters into circulation
just as a component of a greater whole, in combination
with other component parts. For a law which guarantees
in general the protection of a work will, in cases of
doubt, also accord it to the work’s individual components.**
However, even if these components, each considered
individually, could not on their own appear as objects
of circulation, they must nevertheless enjoy legal
protection by virtue of the work in which they are
incorporated.***
In this respect the question may also arise as
to whether the title of a work is the object of a
publishing right. Now, the title is not an intellectual
_____________________
* Renouard
**
***
Chapter 1 Page 82
170
creation, that is, the manifestation of an
intellectual substance and content with an
inherent value. It merely serves to designate
the work.* If one were to apply the principles
of publishing right to the title, this would have
some awkward consequences,** even though there
may well be legal grounds in favour of the idea
that the author should receive special protection
regarding the use of the title which is peculiar
to his work.***
Similar considerations to those we have just
discussed also apply to the author’s name.****
Just as a literary work’s publishing right
is independent of its form and size, so it is
independent of the type of its material content,
that is, of the subject-matter which is represented
or discussed in it.^
In this respect, as far as literary works are
_______________________
* [Gastambide]; Harum
** [Gastambide]
*** [Gastambide]
****
^
Chapter 1 Page 83
171
concerned, accounts or notifications of bare facts
(factual accounts) are as such not excluded from
the legal protection of literary works, since the
laws protect literary works of all kinds, and such
accounts are also intellectual creations and can be
suitable for circulation.* Consequently, one must
recognize a publishing right for the so-called tabular
works (whose content may be mathematical, historical,
statistical etc.**), since in these cases the element
of intellectual creation lies in the conception,
arrangement and presentation according to specific
aspects and purposes. Jolly*** wrongly claims that
“the most basic calculation tables” cannot be
considered literary works because the information
which they contain is public property to such an
extent that, as he argues, it is hardly possible
to come up with a manner of representing this
information which would display the originality
required of an intellectual creation. Certainly,
insofar as the content is public property, its
incorporation into a table cannot, of course,
justify a right of exclusive exploitation thereof,
but insofar as the manner of representation is
indeed the individual work of the table’s author,
one cannot deny him a publishing right for it.****
_________________________
*
** Volkmann; Blanc
*** Jolly
**** Jolly; Friedländer
Chapter 1 Page 84
172
Similarly, dictionaries are without question
literary works and objects of publishing right.
Likewise statistical records, even directories
(address books), ranking lists and other works of
this kind, even if they do not require scholarly
enterprise.* And no less so, works which give rules
based on general knowledge, e.g. recipe books.**
Where the justification of publishing right for
artistic works is concerned, the particular kind of
subject-matter and content which they represent is
as irrelevant as for literary works. They may be
inspired by Nature, history, or the imagination and
inventive powers of the artist; they may be a
representation of a landscape, a historical scene or
a portrait, or one of animals, flowers, fruits, or a
genre painting, an allegory or indeed any possible
kind of artistic composition. For in all these objects
the representation of a physical form is conveyed by
an individual perception that arose in the spirit of
the originator, which means that in all these cases
there is authorship.
_______________________
*
**
Chapter 1 Page 85
173
Moreover, the significance of the work as far as its
circulation is concerned lies in this very representation,
rather than in extraneous material purposes.
In this respect representations which are conducive
not so much to aesthetic contemplation as to the
presentation of scientific knowledge or the illustration
of external objects- such as geographical, topographical,
astronomical maps, as well as drawings or models and
embossed maps of this kind, and geological, mineralogical,
botanical, anatomical and similar illustrations, as well
as drawings of heraldic coats of arms and coins- are
the object of publishing right.*
____________________________
* Austrian law; Prussian law; Hessen law 1830; Brunswick
law; [Meining] directive 1829; Harum
Chapter 1 Page 86
174
In the special case of newspapers some hesitation
may be possible due to the nature of their content
and purpose.
Journals as such are without question literary
works which constitute an object of literary
circulation and hence qualify for publishing right.
Their periodical publication and what this implies
for the way they are sold do not make for any
substantial difference. However, as far as content
is concerned, if an article included in such a journal
merely reproduces a fact or objective observation,
it cannot be said to have been presented by the author
as a work of his individual spirit and, from an
objective viewpoint, does not constitute a creation
whose essential significance lies in its intellectual
content and is therefore not a literary work. For the
latter, being intrinsically spiritual, must always
contain something which goes beyond the merely factual.*
Such newspaper articles which are purely factual
in their particulars, e.g. a piece of news on the rate
of the stock exchange, or the retelling of rumours
which are circulating, etc., cannot be considered
literary works.
Even if such a communication were to contain a
purely invented fact, that is, a lie, it would still
not qualify for a publishing right for the simple
reason that it was presented as a purely objective
fact, rather than as a work of the newspaper’s
correspondent,
_________________________
*
Chapter 1 Page 87
175
and it must therefore put up with being treated
accordingly.
However, as soon as a newspaper article bears
the intellectual stamp of individual authorship
and intellectual individuality, and this content
predominates in the article, it must be considered
a literary work* and as an object of publishing
right for its author.
This can only be determined by consideration
of the particular circumstances of each individual
case.** Moreover, an article by an ingenious writer
and shrewd observer can differ greatly from the
report of a run-of-the-mill scribe, which, like the
image seen in a camera obscura, could just as well
have been provided by anyone else. Thus, it is
impossible to agree with Bavarian law’s general
exclusion of “pieces of news, news flashes,
articles and treatises which appear in public
journals” from publishing right.***
The question as to whether and to what extent
the journalist transfers his publishing right to
the publisher of a journal when he sends in his
article,**** must be considered separately from
that of determining which kinds of articles are
objects of publishing right.
Although some of the individual articles in
a journal may not qualify for publishing right as
discussed earlier, this cannot be the case with
the journal as a whole, for the latter constitutes
without question a literary work, a work of the
editor and an object suitable for literary
circulation. The difference
______________________
*
** [Gastambide]
*** Bavarian law
****
Chapter 1 Page 88
176
between individual articles and the journal as a
whole manifests itself most clearly in the case of
an advertising journal. The editor is striving for
the sale of his journal and financial gain, but the
latter does not affect the individual who has
inserted an advertisement.* Accordingly, Jolly’s**
assertion that “the publisher of a newspaper is
entitled to no right whatsoever regarding the
advertisements which he is sent for publication”
must be modified. The publisher cannot, however,
prevent the sender from passing on his advertisement
to other newspapers as well, and the editor himself
acquires no publishing right for the content of
the individual advertisements, since these do not
constitute literary works and it is not possible
to speak of authorship in their case, and, moreover,
since it was not at all the sender’s intention to
claim an exclusive right. However, a publisher can
claim protection and protest against the unauthorised
reprinting of his journal in its entirety by other
journals. This legal protection which the newspaper
enjoys as a whole is based on the essential substance
of the journal: if it were to consist in the given
articles, the editor’s publishing right would also
have to hold for them too. As a rule, though, an
individual article will rarely represent this
essential substance.***
It is another consideration which excludes
from publishing right the official communications
that are submitted to a newspaper: namely, the fact
that these, by virtue of their official function,
are not the object of a publishing right.****
Closer to the category of literary works is that
___________________________
*
** Jolly
***
****
Chapter 1 Page 89
177
section of a newspaper which contains the actual
[review] articles, and which, depending on the
circumstances, may well constitute the essential
substance of the newspaper. Unauthorised reprinting
of the latter, especially if it is done continuously,
can by its rivalry significantly harm the newspaper’s
commercial exploitation and its literary circulation.
Therefore, there is every reason to give the newspaper’s
owner protection with regard to this substance.*
In this respect, telegraphic dispatches must also
be taken into consideration, for they cannot simply be
excluded from publishing right. Of course, the fact that
a piece of news has been sent in by telegraphic means,
rather than by post, does not turn it automatically into
a literary work. But, similarly, this means of transmission
cannot render an object which is a literary work or part
of one into a non-literary work. Thus, telegraphic
transmission is in itself no juristic criterion, and
in any case a literary work which would be treated as
such when sent in by other means must also qualify
for protection when conveyed telegraphically.**
__________________________
*
** Jolly; Harum
Chapter 1 Page 90
178
As a rule, however, telegraphic dispatches
usually consist of purely factual communications
and, if intended for publication in newspapers,
fall into the category of newspaper articles of
this kind.
Even the fact that such dispatches are
generally more expensive and arrive more quickly
than postal letters cannot elevate them to the
category of literary works if they do not belong
to these as such.* However, this factor does give
rise to a special situation for the telegraphic
dispatches which are included in newspapers and
journals, and justifies the extension of the
newspaper’s publishing right to also cover that
part of their substance which consists of
telegraphic dispatches. The significance of
newspapers in circulation lies essentially in the
speedy communication of news: a newspaper is held
in greater esteem the faster it conveys the latest
news. The essential substance of such newspapers
is concentrated in the headings of their
telegraphic dispatches, so that the reproduction
of this essential substance by rival newspapers,
especially if done repeatedly or professionally,
would evidently encroach on the commercial
exploitation of the original newspaper. In the
legal realm, however, when taking into account
the aspect of commercial exploitation, as must
be done for publishing right, the essential
component of a literary work is that for whose
sake chiefly the work is held in esteem and paid
for in literary circulation, and it is with this
in mind that the newspaper’s owner is careful to
lay out the most expenses where they are most
needed. But it is not so much these expenses
__________________________
* Jolly
Chapter 1 Page 91
179
as the effect that they are meant to bring about
for the newspaper and the commercial exploitation
of this literary work which justify legal protection.
This justification is not at all affected by
the following counter-inference by Jolly:* “If the
same telegraphic dispatch that appears in one
newspaper is also published in another, the owner of
the first newspaper can and will not complain that
someone else has published, perhaps almost
simultaneously, the same piece of news as he. Rather,
he must and will be content if the other newspaper’s
owner received the dispatch addressed to him personally
and had to pay as much for it as he had had to.” This
is certainly no case of unauthorised reprinting.
However, the case we are dealing with here is by no
means that of various people are drawing from the
same source, so the latter can have no bearing on
the question which has been raised. Furthermore,
where a published dispatch is indeed reprinted
without authorisation, the ill feeling this
provokes is caused not, as Jolly (ibid.) argues,
by the sheer “feeling of anger or envy that someone
else is able to publish an interesting piece of news
for a lesser price than you were able to”.** It is
caused, rather, by the fact that the other person
is copying it from the newspaper of the first and
thus encroaching on his commercial interests.***
_________________________
* Jolly
** Jolly
***
Chapter 1 Page 92
180
The literary or artistic tendency of the work
is also irrelevant for the publishing right, be it
scholarly, entertaining, edificatory etc., and
whatever the particular aims it may pursue, for
literary circulation and authorship comprise all
these designations.*
Such works, on the other hand, which it is
not permitted to bring into circulation, that is,
immoral and forbidden works, cannot be an object
of publishing right; they cannot lay claim to
commercial exploitation nor to protection in
their reproduction and distribution.**
_______________________
* Luxemburg law [1817]
** Renouard; Eisenlohr; Friedländer; [unreadable
name]
Chapter 1 Page 93
181
Those works whose dissemination would be a
crime because permission would not have been
granted for their publication, also do not qualify
for legal protection,
Chapter 1 Page 94
since the law on unauthorised reprinting is intended
to protect only such activity of an author as is
permitted [by the authorities].*
Similarly, publishing right cannot be claimed
for a work which is merely a forbidden unauthorised
copy of another work.**
However, if the illegal quality of the work
ceases, this also removes the grounds for not
according it a publishing right.***
___________________________
* [Mittermaler]
**
***
Translation by: Luis Sundkvist
Source: Scanned from a copy held in the Frankfurt Max-Planck-Institut für Europäische Rechtsgeschichte
Citation:
Wächter: 'Publishing Right', Stuttgart (1857), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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94 translated pages
Chapter 1 Page 1
When considering the legal factors relating to the production of
an intellectual work, a literary or artistic product, three aspects
can be singled out: firstly, the right to produce such a work and the
safeguarding of this right; secondly, the interest which the author,
as the producer of an intellectual creation, may have in the realm of
science (literature) or that of art, an interest which may be termed,
albeit not entirely accurately, intellectual interest; and, thirdly,
the material use of the product for the purposes of gain.
The first of these aspects, namely the right to produce a work,
is a purely individual right, about which nothing more need be said
here, since it is subject to the same principles and the same
protection as any other individual right to free enterprise.*
_________________
* Wächter.
Chapter 1 Page 2
The second aspect, that is, the author’s intellectual interest
does not fall into the sphere of law,* but rather into that of
morality and the intellectual significance (of his work). For it
is not the the internal or individual interests and intentions of
the author which publishing right is meant to protect. The law is
indifferent to such subjective considerations and to include them
in a juristic treatment (of the matter) would only confuse things.
It is true that some, Bluntschli for example,** consider the
author’s personal, esp. literary, interest and the artist's honour***
to be a necessary principle in the protection of rights.****
Nevertheless, the realm to which publishing right is applicable is
not that of the mind, but, rather, the sphere of material circulation.
It is not from his ideas, which he was the first to think of, develop,
and express, that an author wishes to exclude others, for ideas by
their very nature are not subject to legal control. Once they have
been brought into literary circulation, they immediately become
common property and elements from which new works of the intellect
can arise. It is not this intellectual circulation which
_____________________
*
** Bluntschli 1853
*** Bluntschli 1853
**** Bluntschli 1853
Chapter 1 Page 3
could infringe upon the author’s legal interests and should
therefore be subject to exclusive rights. A literary or
artistic work only falls within the competence of law when it
ceases to remain solely in the realm of ideal relations and
becomes an object of property whereby it acquires a cash value
in circulation or is suited to acquire such a value. It is
precisely in this sphere that property rights apply to the use
of an object. For it is in this use alone that an author’s
objective legal interest lies, thus making it into a matter for
legislation,* whereas the subjective intentions which the author
may harbour regarding his writer's or artist's honour and his
critical reception are irrelevant to the law. If exposition of
one’s personality
________________________
* Report of the Saxon Chamber of Parliament, 18 March 1843;
Report of the Bavarian Chamber of Parliament, May 1840.
Chapter 1 Page 4
were to be the reason for seeking to forbid the violation of
publishing right, then such divulgations which do not actually
involve reprinting, as, for example, disclosing the author’s
opinions or even maliciously distorting the sense of his words,
would have to be treated as violation of authorial rights,* since
in this way the individual can find himself injured to a far
greater extent than by unauthorised word-by-word reproduction of
his work. On the other hand, it is unconceivable how mere reprinting
can damage the author’s reputation** as such. The greatest possible
reproduction and diffusion of an author’s work can only work in
favour of his reputation, and reprinting does after all indicate
that the special value and relevance of his work have been recognized.
If, however, it is reasons of reputation or any other highly
personal considerations which compel an author to adopt the legal
means of redress which the law provides him with against encroachment
on his property rights, this does not alter the nature and principle
of such legal protection. For the legal means of redress called for
in case of violation of the property rights of the publishing right
holder, does not change in content or legal character just because
the holder sees in it a means of achieving other ultimate aims.***
__________________
* Ritter 1846.
**
*** Wächter, Handbook of Civil Law.
Chapter 1 Page 5
It is true that an author can also prosecute for an unauthorised
disclosure and publication of his work,* but the basis of this
right is merely the protection of property right interests, not
any consideration for literary discretion as might induce the
legislator.
Anyone is allowed to divulge another person’s ideas,
especially if he arranges and adapts these in a new way.** It is
therefore an undue interference of personal factors when some
people would take publishing right to mean a right of the author
to prevent changes to his work.*** For the prohibition of
reprinting gives the author
__________________
*
**
*** Beseler
Chapter 1 Page 6
no protection against alterations of his work. On the contrary,
if these are sufficiently far-reaching there is no way they can
be presented as evidence for violation of publishing right.*
Only when an author’s work is reproduced can one speak of unlawful
reprinting.** Only a publishing contract which obliges the signatory
publisher to print off the work without any alterations can justify
taking legal action against alterations, but not the publishing
right as such.***
Accordingly, it is clear that, apart from the general
protection of persona rights, only property right interests fall
into the sphere of objective law.
The property right nature of publishing right, on which any
discussion of unauthorised reprinting hinges,**** has already been
admirably emphasised by Kramer^ and earlier writers^^ and is duly
given the highest priority in French law^^^ especially. Jolly^^^^
too recognizes this property right
________________
*
**
***
****
^ see Kramer 1827
^^ Böhmer, Pütter, Wernher
^^^ Renouard
^^^^ Jolly
Chapter 1 Page 7
character of the legal situation, as is clear from the way he
describes unauthorised reprinting as an encroachment on
another’s property. Now, if such reprinting is an encroachment on
property the right which is thereby affected must itself be of the
nature of a property right. This positive aspect of the legal
situation, namely the publishing right (which only unauthorised
reprinting can violate*), was not clear to Jolly. Bluntschli** and
Beseler,*** on the other hand, have emphasised it.
The positive laws also uphold the principle that it is in the
revenue accruing from his property rights that an author should be
protected, even though most laws do not lay down this principle as
such but formulate, rather, its main practical implications.****
_____________________________
*
** Bluntschli
*** Beseler
**** Wernher 1847
Chapter 1 Page 8
Thus, federal decrees stipulate that the legal consequence
of unauthorised reprinting is compensation of the publishing
right holder,* that is, a property law based penalty. An even
more significant recognition of the property right principle
lies in the fact that federal decrees** allow the author’s
rights to transfer unconditionally to his heirs and legal
successors, and treat the latter, that is, the publisher***
exactly as if he were the author, which makes it clear that it
is a question of property interests alone.
The property right principle of publishing right is quite
explicitly formulated in the relevant legislation in Saxony.****
However, it also underlies the legislation of all other German
states,^ and manifests itself in the fact
_________________________
* Federal directive 1845
** Federal directive 1837
*** Federal directive 1837
**** Reinert [?]
^ [unreadable name]
Chapter 1 Page 9
that where a property right interest is not predominantly
involved, protection of an author’s right as such through
accusations of unauthorised reprinting cannot gain ground -
this is the case, for example, with plagiarism or with
indiscreet disclosure of an author’s ideas or views.*
When defining more closely the property right principle
of publishing right, one is first of all confronted with the
following question: do these property right interests in
themselves amount to a right which is anchored in legal
practice, and, consequently, does the violation of these
interests of the author constitute an encroachment on someone
else’s rights, that is, a tort?
Some writers on the subject- e.g. Quistorp,** and, later,
Grolmann*** and Tittmann**** - have treated unauthorised
reprinting in itself as a (punishable) offence because in
their view it is a kind of forgery. This, however, was
definitely a mistake since forgery involves essentially a
distortion or withholding of the truth, whereas those who
reproduce a work by unauthorised reprinting are not deceiving
or seeking to deceive anybody. Thus, no case can be made out
for forgery here. The unauthorised reprinter would only then
be guilty of forgery if he were to give his unauthorised
edition the appearance of being an authorised publication by
copying the style etc. of the genuine publisher. However, in
such a case, the act of forgery lies not in the reprinting
but in the false declaration of the publisher’s name.
Others have argued that unauthorised reprinting is
deceit because the reprinter thereby violates the tacitly
___________________________
*
** Quistorp 1770
*** Grolmann 1818
**** Tittmann 1810
Chapter 1 Page 10
agreed condition under which the author or publisher sell
their work.* This is, however, to overlook the fact that
for a deceit to take place a violation of some obligation
to the truth must have occurred. The violation of a condition
of contract can therefore not be deceit, but belongs instead
to the intentional breaches of contract. Unauthorised reprinting
as such does not constitute a breach of the contract through
which the reprinter came into possession of the copy that he
used to reprint the work. Those who argue otherwise fail to
realise that [in a contract] conditions cannot come into force
tacitly: they are only valid when both parties have agreed to
them. This means that the publisher would have to stipulate
before each sale that the buyer pledged not to carry out any
reprinting, but this would still not protect him from the
reprinter who had bought the book from that buyer without
entering into this condition, since such conditions, just like
the rights that follow from any obligation, do not apply to third
persons.**
Similarly, the attempt to brand unauthorised reprinting as
a form of injuria, giving the right to take actio
injuriarum against the reprinter, as Neustetel and,
more recently, Heffter*** have done, is also a failed one.
Certainly, the premise on which Neustetel based his argument,
namely that
__________________________
* Klein 1810
** Wächter 1826
*** Neustetel 1824
Chapter 1 Page 11
according to Roman law any intentional harm done to a person
should be treated as injuria, is quite correct,
but he takes for granted the personal right which, in his view,
is violated by unauthorised reprinting, whereas this right could
only come into existence through an explicit law.*
Finally, attempts to prosecute unauthorised reprinting as
furtum (rei ipsius)** have also proved to be in vain,
since such reprinting is neither the abstraction of a thing from
someone else’s possession, nor any other kind of appropriation of
something that does not belong to one (e.g. embezzlement and the
like). Furthermore, the concept of contractatio which is
inherent in any act of furtum,*** can in no way
be applied to the reprinter’s actions.
Similarly, unauthorised reprinting as such cannot be said to
constitute a furtum usus [= clandestinely taking
possession of and using], since the essential prerequisite for this
is a thing belonging to someone else which one makes unauthorised use
of, whereas the reprinter can print from his own copy or one lent to
him for this purpose by the owner.****
The publishing right is often regarded as intellectual property,
so that, consequently, unauthorised reprinting, the violation of
the publishing right, is seen as encroachment on someone else’s
intellectual property.^ However, this is completely mistaken and
_______________________
*
** Pütter 1774
*** Wächter
**** Wächter
^ Eisenlohr
Chapter 1 Page 12
based on false and vague notions. There is hardly any need
to prove that the very concept of property, which just refers
to the legal possession of physical objects, cannot be applied
to intellectual works as such. One could, it is true, speak of
an analogous application of the property concept to intellectual
works,* but in this case the premise which,
______________________
* Several references to Eisenlohr- Putter 1774
Chapter 1 Page 13
apart from anything else, is essential for making valid
analogous extensions of legal concepts- namely the similarity
of the legal situation and of the facts of the matter- is
lacking.*
It is precisely this legal possession, with which the
owner of a physical object is invested, that is quite
unconceivable for an intellectual creation. The means by
which the intellectual creation comes into being, that is,
the manuscript, book, or work of art- is indeed an object
that can be owned, but the legal possession to which this
real ownership of a material object entitles one, is so
completely different to the legal power which is to be
understood under the publishing right that
_____________________
* Wächter
Chapter 1 Page 14
attempting an analogous extension of what is valid for that
kind of possession to this legal power [of publishing right]
makes no sense.* The publishing right holder does not own
as such a material object, his claim to which, ownership and
use of, would require protection from encroachment by others.
In this possession of his materialized product, which he
exercises as its owner, he is not harmed by the reproduction
of this work by another person. Rather, the publishing right
holder asks for protection from an action which the owner of
a copy of the materialized work- who may very well be the
rightful owner of this copy, as is the case with the buyer
of a book or a work of art- might intend to carry out with
this object that belongs to him (i.e. its reproduction). He
therefore seeks to limit the freedom of a third party, even
if this happens to be the owner of the object. The reproduction
of this object, however, does not violate at all the publishing
right holder’s sphere of legal possession.**
If, on the other hand, one tried to base an analogy on the
observation that the author of a work is the owner of its
intellectual substance, so that its reproduction by a third
party would constitute an infringement of this ownership,***
this would be to overlook the fact that one cannot speak of
ownership of an intellectual substance, even if only
___________________________
* Wächter
** Schmid
***
Chapter 1 Page 15
by way of analogy, for the simple reason that the originator
of an idea, once it has entered the external world, can no
longer keep it for himself, possess it exclusively, and
prevent others from using it. Moreover, the author who
publishes a work cannot desire such exclusivity, since his
aim can only be that as many people as possible adopt his
ideas and that the intellectual use of his work be as free
as possible. What he does want to reserve for his own
exclusive disposal is just that which has to do with the
exploitation of his idea in accordance with property law.*
If, instead, one chooses to call the warranty to
reproduce this idea in certain forms and bring it before the
public, an intellectual property,** one is effectively using
that term for something which in no way can form the basis of
property, thus divesting the concept of property of its very
own peculiarity and letting it be absorbed into the concept
of property law in general.***
And, finally, if one takes “intellectual ownership” to
mean a property right which refers to intellectual creations,****
____________________________
*
** Meister 1809
***
****
Chapter 1 Page 16
there is nothing to be said against such an approach except
that the term used and the definition of the [property] right
which it implies are hardly to be approved of, since they are
quite misleading and the term “ownership” is used in an
anomalous sense.* Moreover, the situation which “intellectual
ownership” is supposed to define is by no means that of a
purely “intellectual” property right, but, rather, that of a
completely material one!**
______________________
* Neustetel
** Walter
Chapter 1 Page 17
As soon as this property right is recognized by positive
law, it is indeed accorded legal protection, like any property
right, including, of course, that of ownership (it is just that
because of the particular nature of this right, the way in
which it is protected must necessarily be different). It is
precisely this which is implied by the laws when every now and
then they define the right which is accorded to an author as
intellectual ownership. Thus, already in the consultations held
on the federal decrees we find the right in question referred
to as a right of ownership,* although when the decrees themselves
were drafted the latter term, which is not entirely accurate,
was rightly avoided.
Austrian law, which explicitly speaks of an author’s
ownership of his work,** also does not invest this term with any
further significance other than that the author is given sole
exploitation of his work through reproduction and publication.
Similarly, Prussian legislation takes “ownership of works
of scholarship and art”*** to mean just the exclusivity of the
publishing right.****
_______________________
* Cf. the proceedings of the Federal Diet of 1813
** Austrian law of 1816
*** Prussian Copyright Act of 1837
**** Report of the Berlin tribunal
Chapter 1 Page 18
The legislation in Saxony, which makes the strongest
emphasis on the property right aspect,* makes no assumption
whatsoever of ownership.**
In everyday usage unauthorised reprinting is often referred
to as theft, since it is generally felt that where intellectual
creations are concerned the author should have an exclusive
property right, and that infringements of this property right
should be dealt with in the same way*** as when the law deals
with infringements committed by a thief. A lawyer, however, should
take care- although it isn’t always observed-
________________________
* Saxon law of [unreadable year]
** Cf. the report of the committee of the lower Saxon chamber at
the diet of 1843 [?]
*** Volkmann 1848
Chapter 1 Page 19
not to call these infringements (i.e. unauthorised reprinting)
theft. Those who do refer to it thus in jurisprudential writing
either have a total misunderstanding of the nature of authorial
right and reprinting, as well as of the nature of theft,* or
are deliberately taking liberties with juristic terminology.
It is only through the definition of publishing right given
here- as the exclusivity of exploitation in accordance with
property law- that one can also prevent the mistaken notion that
after publication the authorial right somehow diminishes in nature
and scope due to constraining rights on the part of the public
allegedly coming into effect.
In this manner, Bluntschli** is prepared to concede the
public rights to the intellectual content of the work, when in
fact the latter, as a purely intellectual work, cannot be subject
to any legal control, including that of the public. Apart from
this juristic impossibility, one can also point to the fact that
although the author, by publishing his work, discloses its
intellectual content, in no way does he transfer anything of his
exclusive publishing right (i.e. his exclusivity of exploitation
in accordance with property law). On the contrary, publication
marks the beginning of his exercise of this right and indicates
that he has no intention of giving it up- rather, that he intends
to make use of it. By publication the author merely renounces the
secrecy of his ideas as he
________________________
*
** Bluntschli
Chapter 1 Page 20
expressed them in his work, but this has nothing to do with
his publishing right, which therefore remains his unimpaired
for the first and every subsequent publication.*
After what has been said, all that remains now is to
determine in more detail the content of the property right which
accrues to the author with regard to his intellectual works.
However, from the above discussion it is already clear that
this content can be no other than the commercial exploitation in
accordance with property law which the work allows for by means
of its reproduction and diffusion.* Moreover, this exploitation
is one that accrues solely to the author and his legal successor,
with the exclusion of any third party.
It is precisely this exclusivity which allows the publishing
right to be defined as a particular property right.
The right to reproduce his work belongs to the author simply
by virtue of his capacity as a person.*** This right to produce
a work and make copies of it is not in itself a property right;
________________________
*
**
***
Chapter 1 Page 21
it only becomes a property right through the exclusivity which
the law confers on it. Only as a result of the author being
able to exclude any third party from reproducing the work does
his right acquire significance in property law as well as the
power of control against third parties. It is because of this
that it becomes a particular property right. However, as soon
as this right is deprived of its exclusivity (e.g. when the
legal term of publishing right has expired), its property
right character vanishes, as does the publishing right as such.*
Then anyone- by virtue of their capacity as a person- can
reproduce the work in as many copies as they are able to.
Accordingly, the laws too emphasize the warrant of
exclusivity as the essential content of the publishing right
which an author is conceded.**
Now, if it is the exclusive exploitation of a work which
constitutes the content of the publishing right, this also
allows us to determine the individual actions from which the
author is entitled to protection. The rightful manner of
exploitation is for the author to hand over his work for
publication, whereupon it is reproduced by the publisher in a
number of saleable copies so that it can be exploited immediately
by the commercial sale of these copies, namely by
_______________________
*
** Austrian law (as above); Prussian Copyright Act of 1837;
Saxonian Copyright Act 1844; Bavarian law of 1846
Chapter 1 Page 22
selling these in the bookshops. It is this sale which
brings about the publication and distribution of the work,
and in this sense the exclusive right of exploitation also
includes the exclusivity of publication of the work.*
However, in some circumstances the author can [commercially]
exploit his work in other ways than just that of having it
published, for example, by public performance when the work
is a dramatic or musical composition.** For this reason, the
law recognizes an authorial right in this respect too,***
wherein the principles of publishing right and those concerning
unauthorised reprinting find an analogous application, even
though the particular nature of such exploitation gives rise
to various modifications.****
From the points that have been discussed so far we now have
the following definition of the publishing right.^ The publishing
right is
________________________
* Austrian law; Prussian Copyright Act of 1837; Saxonian Copyright
Act 1844; Bavarian law; Gotha directive 1828; Cf. also Volkmann
**
*** Federal directive 1841; Austrian law; Hitzig; Saxon law of
27 June 1846
****
^
Chapter 1 Page 23
the right of exclusive exploitation of an intellectual,
especially a literary or artistic, work by means of its
reproduction* or publication.
Because of the differences between the various [national]
legislations one must, however, distinguish between a wider
and a narrower juristic sphere, since most legislations limit
this right to that of mechanical
_______________________
* Cf. Hitzig, newspaper article of 1842; Encyclopaedia of
Economic and Technological Terms, Berlin 1852; on the concept
of publishing right see K[***] 1845 and v. Daniels 1851
Chapter 1 Page 24
reproduction, whereas elsewhere any manner of publication,
not just that of mechanical reproduction, is reserved to the
exclusive right of the author (or his legal successors).
The term “publishing right” is especially appropriate for
emphasizing the property right nature of authorial right, since
first and foremost it expresses the thrust of this right towards
fixing the intellectual work in a physical medium, by which the
work acquires a monetary value in circulation and can thus be
exploited in accordance with property law.
This definition of publishing right has been incorporated
into Austrian law.*
In the light of all this, the question as to the position
which the publishing right and unauthorised reprinting occupy
in the legal system is easily answered. Unauthorised reprinting
as an illegal infringement of another person’s right belongs to
the theory of delicts [= inflictions of harm] and, insofar as we
are dealing with the civil consequences, with the obligation,
that it gives rise to between the injuring and the injured party,
it belongs to the theory of obligationes ex delicto.***
However, a delict
_____________________
* Austrian law
**
Chapter 1 Page 25
is impossible without a right which is violated in the first
place. Thus, the prerequisite for that obligation is the
legally recognized and protected right to exclusive
reproduction of a work, that is, the publishing right. By its
nature and extension this right manifests itself as a
commercial right, and its position in the legal system is
defined accordingly.
It is self-evident, however, that a treatise on the
theory of unauthorised reprinting must start from the
fundamental premise of the right whose violation is constituted
by such reprinting, that is, from the publishing right. Only
after having attained- by justifying and discussing in more
detail this publishing right (the transfer of which is the
source of the publishing contract)- an idea and definition
of the scope and nature of the right which is violated, can
the transition be made from this positive aspect to the
negative one, that is, from the right to its violation and
the latter’s punishment (in civil and criminal law).
The laws name the following objects to which publishing
right applies:* literary and artistic
____________________
* Federal directives of 1837 and 1813; Prussian Copyright Act
of 1837; Bavarian law of 1840; Württemberg law of 1845
Chapter 1 Page 26
works of all kinds, without listing individually* the
objects that come under this concept.**
It is therefore up to jurisprudential scholarship
to elucidate the general legal concept.
First of all the question arises: what does one
understand by literary works?
Any work which is suited to form part of a country’s
literature must clearly be treated as a literary work.***
It is not really possible here
______________________
* Prussian and Brunswickian laws
** Bavarian legislation of 1840
*** Friedländer
Chapter 1 Page 27
to analyse in great detail the concept of “literature”. Suffice
it to say that it designates the complex of intellectual
creations which are fixed by means of language and whose
fundamental significance lies therein that they do not serve a
concrete material purpose, but, rather, help to facilitate the
general (and in this sense public) intellectual circulation of
ideas and thoughts.*
In order to enter into this literary circulation, a text
must be objectively adequate so as to be considered a literary
work, since only such a text can be a literary one. The
subjective view or intention of the originator is irrelevant in
this case, as it cannot invest with a literary quality something
which is objectively not suitable for literature. Thus, it does
not matter whether the originator intended his product for
literature.**
However, this literary quality has nothing to do with the
literary merit or inner content of the work. These aspects do
not come into question here, since even a literature which is
found lacking in the eyes of criticism still remains literature,
and
______________________
* Brockhaus Encyclopaedia 1853
** Austrian legislation
Chapter 1 Page 28
its works fall under the category of literary works. A legal
judgement cannot be made according to intrinsic criteria which
are alien to the sphere of law; rather, it must be pronounced
on the basis of objectively recognizable characteristics.*
All that the concept of a literary work allows one to
infer about its intellectual content is that the work derives
its value in circulation from its intellectual substance,
since in literature the essence- that which remains after one
has abstracted the mere means of representation, i.e. the signs
of language- is intellectual. Indeed, it is the intellectual
creation alone, the authorship, which can claim the protection
of publishing right.**
Similarly, the concept of an artistic work*** covers any
creation of the intellect which is represented by those means
that are peculiar to art and which appears suitable to enter
into artistic circulation. If, however, one wishes to refer
to works of art as a class of objects of publishing right which
is commensurate with the literary works, it is necessary to
distinguish two aspects in the concept of a work of art.
Firstly, its intellectual substance, artistic content or idea;****
and, secondly, the means of its representation.^
__________________________
*
**
***
****
^ Volkmann
Chapter 1 Page 29
It is to the first aspect, as well as to a factor which
has no legal relevance, namely, to the quality of
representation and execution, that Jolly* limits his
definition of a work of art as a work which more or less
satisfies the aesthetic sense. This vague definition slips,
on the one hand, into the realm of art criticism,** whose
task it is to give a work of art its rank, whilst, on the
other, it is partly too broad, since there are objects
apart from works of art which are capable of satisfying the
aesthetic sense, and, partly, it is also too narrow a
definition, since it does depend on individual factors which
works someone finds satisfying for his aesthetic sense.
Thus, a judge, leaving aside the fact that he will rarely
be an authority in aesthetic matters, would have no objective,
reliable criterion on which to base his judgement.***
A further definition proposed by Jolly,**** that one
should treat as works of art all those works which appear as
such in the fine art trade, is inconsistent with his earlier
confinement to aesthetically satisfying works and is no less
faulty. Such a definition lacks all logical soundness for it
would effectively leave it up to the discretion of the art
dealers to decide on the scope of the legal protection to
be accorded to artistic authorship.
Thus, it can neither be this purely external approach,
nor the artistic ideal of a true master
______________________
* Jolly
**
***
**** Jolly
Chapter 1 Page 30
artist,* which determines the legal protection of authorial
right. The objective recognizable characteristics on which
legal judgements must always be based can clearly only lie in
the means of representation.
It is these which also mark off an artistic work from a
literary one.** For they both have in common the requisite of
an intellectual content which the author has to represent:
however, whilst in literary works this representation is
achieved by language signs, an artistic composition will avail
itself, depending on its genre, of drawings, or colours, or
plastic form, or musical notes. This requisite, though, is by
no means arbitrary; rather, the content and means of representation
are mutually dependent. It is precisely because of this that
the artistic content is linked to the artistic means of
representation, and that the latter thus provide a sufficient
criterion for legal judgement.***
However, in this respect the artistic circulation must
also be taken into account, but only insofar as- since the
exploitation by the
_______________________
*
**
*** Austrian legislation
Chapter 1 Page 31
artist and the legal protection thereof apply essentially to
the sphere of circulation - a work, in order to be considered
a work of art, must necessarily be suitable for sale in the
course of such circulation.*
However, it is not necessary that such circulation take
place amongst artists, connoisseurs, and art dealers. All
that matters is that the work is capable of being brought
into commercial circulation (commercium)
as an artistic work.** Now, since the terms “work of art”,
“artistic circulation” and so on, are easily interpreted
in a more restricted sense, it seems more appropriate to
speak of “artistic works”, “circulation in the fine art
market” etc.***
Literary and artistic works are in equal measure
entitled to legal protection, so it is not necessary to
draw strict boundaries between the two realms.**** The
drawing of such boundaries, if one were to look for these
in the kind of intellectual creation concerned, would prove
quite difficult in many cases. For example, it would be
hard to decide whether poetic works belong to the realm of
art or to that of literary works; similarly, one would
have trouble deciding whether drawings of a scientific
nature belong to the realm of art or to that of [scholarly]
literature. It is only possible to draw such a boundary
with objective certainty by considering the difference in
the means of representation: then the works of poetic
literature clearly belong to the realm of literary works,
whilst works of graphic
______________________
*
**
***
**** Federal directive 1837
Chapter 1 Page 32
or plastic art (whatever they may have as their content)
belong to that of artistic works.*
Musical compositions also fall into the category of
literary or artistic works of any kind.**
right must fulfil
From the nature of literary and artistic works, which
are, according to the laws, the object of publishing right,
and from the tenet that every publishing right must be based
on authorship,*** we may derive as a guiding principle for a
more detailed elucidation of the objects in question the
following: a publishing right can only come into effect for
an object which constitutes an individual intellectual creation,****
and, moreover, the author’s right regarding such an object
extends only insofar as the latter arose from his intellect.^
_____________________
*
** Austrian laws; Prussian Copyright Act 1837
***
****
^
Chapter 1 Page 33
Now, this guiding principle is also exhaustive in the
sense that it does not seem necessary to stipulate further
that the [intellectual] creation fulfil the more far-reaching
requirement of originality or independence. Such a requirement
is to be found neither in our positive laws,* nor in the
nature of what we are discussing. Thus, it is without
justification that Jolly** demands that for a literary work
to qualify for publishing right it must contain a fully
rounded out idea in original form. Apart from the impossibility
of making an objectively reliable judgement on such originality,***
this demand is wrong for the simple reason that a literary work
can also be created even when its form is imitative (i.e. not
original), or its sequence of thoughts is incomplete, and there
is no question that it too is entitled to publishing right.****
Accordingly, we must now look in more detail at the
difference between production and reproduction, that is,
between the original and a copy.
__________________________
*
** Jolly
*** Friedländer
****
Chapter 1 Page 34
Generally speaking, it is only natural that a publishing or
authorial right can only result from authorship, that is,
from independent creation, rather than from the mere
reproduction of another (someone else’s) work.* This can be
seen most clearly and immediately in artistic works, namely
in the relationship between the original and a copy. A copy,
insofar as it is a copy, that is, the reproduction of an
already existing work, does not qualify for a publishing
right of its own.**
Even if we disregard such reproductions which fall
into the category of unauthorised reprinting,*** and which
for that very reason cannot lay claim to any right, that is,
even in the case of an authorised copy (which is what we are
assuming here), when considering**** if it can be the object of
______________________
*
** Volkmann 1856
*** Volkmann
****
Chapter 1 Page 35
a publishing right of its own,* all that matters is
whether the copy is also an intellectual creation of
the person who produced it, that is, whether in its
conception, composition, representation, or execution,
it can be said to have arisen from within his intellect.
For insofar as there is such genuine production, the right
of the producer to it is to be protected.** In this respect,
therefore, the copyist has a right to exclusive exploitation
of his copy.*** A copper-grate engraver has
________________________
*
**
*** Blanc; Harum
Chapter 1 Page 36
without doubt an exclusive right to arrange for the
mechanical reproduction of his copy, that is, of the
copper engraving he had created.* Jolly** is thus
mistaken when he asserts, without any further explanation,
that one is allowed to reproduce a copy.
It is only a publishing right with regard to the
original that the copyist cannot acquire as such.***
However, when the original artist has himself made a copy,
his right of exclusivity covers not just the peculiarities
of this replica,**** but also the whole substance of the
original work, so that by virtue of his right he can prevent
any further reproduction of the latter, as well as of the
copy he had made himself. It is for this reason that Austrian
law treats such replicas or reprints as original works.^
It is also self-evident that when a natural object
is copied simply by mere manual skill, without any
intellectual creativity, there can be no question of
authorship upon which to base a publishing right
_______________________
*
** Jolly
***
****
^ Austrian laws; Prussian laws
Chapter 1 Page 37
as is, for example, the case with plaster casts of a
skull etc.*
The same principles which make it necessary to
consider the publishing right of a copy in the case of
artistic works, are also applicable to the adaptation of
literary works. It is just that here we come across more
intricate and complicated situations. Generally speaking,
though, the principle remains valid that the production,
insofar as it is genuine authorship, is entitled to a
publishing right.**
If one applies this principle to the various forms in
which adaptations or combinations of literary or artistic
works can occur, we can draw up the following list of
categories:
1) Excerpts. These cannot be considered as works which
entitle the excerpter to a publishing right if the latter has
on the whole copied word for word someone elses work,
possibly leaving out the odd paragraph or section. They do
however qualify for publishing right if he renders the
content of another persons ideas in his own words and style,
abridging or adapting them as necessary, for then we are
dealing with a modification.***
2) The adaptation of someone elses work. This does
constitute
_________________________
* [Gastambide]; Renouard
**
*** [unreadable legislation]
Chapter 1 Page 38
a separate literary work and is therefore the object of a
publishing right for the adapter, insofar as the adaptation
really did involve creation on the part of the adapter,
rather than mere replication of someone else’s work. Thus
it is legitimate to claim an independent publishing right
for a work which, although it was inspired by or based on
someone else’s work, nevertheless modified the latter in
such a way as to constitute what is essentially a new object
of [literary] circulation. For the adaptation is entitled
to a publishing right insofar as the authorship of the
adapter is manifest.*
3) Editing someone else’s work in a fundamentally
different rendition can also be seen as an independent
creation and hence as the object of an independent
publishing right, insofar as the former has, in any given
case, the character of an original adaptation.** However,
here too the publishing right extends
__________________________
* Wernher; Volkmann
** Friedländer; Hamburg directive 1847
Chapter 1 Page 39
only so far as the authorship of the editor is manifest.*
For example, in the emendation or provision of someone else’s
(say, an ancient classical) text with variants, notes and
such like, the publishing right extends only to these
additions or amendments.** Precisely for this reason, the
finder or editor of a hitherto unknown ancient text, however
important the latter may be,
________________________
*
** Saxonian Copyright Act 1844; [Haubold]
Chapter 1 Page 40
cannot claim an exclusive publishing right to it.* Thus,
the editor of a palimpsest, despite having restored the
text thanks to his physical and intellectual sagacity
and very hard work, cannot claim publishing right for
this restored text.** Accordingly, anyone can print off
copies of this text.*** However, if the editor of the
palimpsest adds his own variants, notes and such like,
he is entitled to a publishing right for these.****
The edition and publication of hieroglyphs would
have to be treated in a similar manner.^
________________________
*
**
*** [unreadable name]
****
^
Chapter 1 Page 41
From the principle that the publication of an already
existing work does not give rise to a publishing right, it
also follows that a new edition of a work which had appeared
earlier cannot be the object of a new publishing right. To
qualify for this, the new edition would have to appear as
an essentially new creation.*
4) According to the principle that every publishing
right is based on authorship, a commentary of someone else’s
work can also constitute the object of an original publishing
right for the commentator, but only insofar as his authorship
is manifest. That is, the publishing right cannot extend to
the text of that work which the commentator may or may not
include in his commentary. The same holds for the annotations,
_______________________
* Austrian laws; Württemberg rescript 1816; Hamburg directive
1847
Chapter 1 Page 42
explanations and such like, which are written to
accompany someone else’s text.*
5) This distinction between components which belong
to someone else and new creation also serves as the
criterion for discussing compilations. The individual
components which are included in the compilation do not
thereby become new works or objects of a separate publishing
right.**
If, however, the individual components of which the
compilation is made up or which are included in it, wholly
or partly,*** were not
_________________________
*
**
***
Chapter 1 Page 43
independent literary works, but just fragmentary thoughts
or utterances which were devoid of any literary quality*
until the compiler’s work conferred them this quality,
then we are dealing not with the compilation of others’
or already existing** literary works, but, rather, with
an original creation created by using the thoughts of others,
whereby authorship in the literary sense, as well as a
publishing right, can be ascribed only to the activity of
the person who carried out the compilation.
The most frequent case, though, is when the compiler
merges various works, which before that already existed in
the capacity of literary works, into his anthology.
Now, if this merging*** is of a kind that it
fundamentally and predominantly displays the character of a
new intellectual creation, the compilation as such qualifies
for its own publishing right.****
Depending on the circumstances,^ this can be achieved
in an adaptation, an amalgamation into a new whole, or simply
______________________
*
**
***
****
^
Chapter 1 Page 44
in the organization [of the texts] according to
substantially new viewpoints,* insofar as it is only in
this way that the whole [compilation] can acquire an
independent value of its own for literary circulation.**
Any alteration which the separate components may have
suffered in this process is of no further relevance to this
question, since the publishing right of the whole work is
considered separately from that of the various components
which were originally produced by others.*** However, the
fact that these individual works have been included in a
compilation does not qualify them in any way for a new
publishing right as such.****
Therefore, where the main significance of the
compilation lies solely in these individual works and their
reproduction, it is impossible to speak of a separate new
publishing right. A conglomeration of individual literary
works does not in itself constitute a new literary
_____________________
*
**
***
****
Chapter 1 Page 45
work or the object of an independent publishing right; it
is not a compilation in the true sense of the word.*
For the very reason that we are here taking into
account not the individual components but, rather, their
elaboration into a whole, when considering a compilation it
does not matter whether those individual components were
(all or a number of them) originally works of the compiler
himself.** This means that adding one’s own works to a
compilation cannot somehow elevate those components written
by others or the very compilation itself to an object which
qualifies for its own publishing right.*** As compilations
in the sense we have emphasized above, we may name
chrestomathies,**** collections of samples,
___________________________
*
**
*** Blanc
****
Chapter 1 Page 46
encyclopaedias.* If the editor of an encyclopaedia has
elaborated material written by others so as to produce a
new work,** then the latter, that is, the encyclopaedia as
a whole,*** constitutes for him the object of an independent
publishing right. The originality of this elaboration, which
is intrinsic to the concept of authorship, cannot be easily
reduced to an external criterion such as, say, the length of
one work or another.****
6) The principles which apply to compilations are also
valid for musical and artistic works, both when they are
combined amongst themselves^ as when, say, a graphic
representation is accompanied by a text,^^ or when a musical
composition is combined with literary works.^^^
_______________________
*
**
*** Austrian-Sardinian treaty
****
^
^^
^^^
Chapter 1 Page 47
The intellectual creation for which a publishing right is
claimed must be of a literary or artistic kind,* and its
essential purpose must lie in the representation of an
intellectual content for circulation,** rather than for any
other material goals. There are many creations of intellectual
origin and nature which simply cannot be literary or artistic
works because their function lies not in the literary or
artistic spheres, but, rather, in other walks of life.***
This distinction is most obvious with regard to artistic
works.****
For industrial products, tools, and
___________________________
*
** Harum
***
****
Chapter 1 Page 48
other objects of material utilization,* a publishing right
is quite unconceivable because these objects come into
consideration not really as manifestations of an individual,
intellectual content, but, rather, as material things,
even if they have been fabricated in the most artistic
fashion.** Incidentally, it is possible to fix onto an object
whose original and primary function is a material one, an
artistic representation in such a way that the object becomes
the carrier of the artistic work.*** In such a case, the
latter qualifies for a publishing right, but not the former.
Moreover, the two objects which have been combined externally
in this way must be clearly distinguished in legal discussion.****
If such abstraction is not feasible, that is, if the
object, apart from its material purpose, cannot be regarded
as an exemplar of the artistic representation which was fixed
onto it, then this
_________________________
* Heydemann
**
***
**** Blanc
Chapter 1 Page 49
representation has no essential significance and one
cannot speak of a publishing right.*
The same principle is applicable to designs of
industrial products.** They too are the object of a
publishing right only insofar as they possess the
characteristics required for this,*** apart from their
primary function.**** According to Saxon law, the designs
of wool garments, embroideries, and such like, are excluded
from the legal protection given by publishing right.^
Incidentally, the discussion of the extent to which artistic
works may be used in the manufacture of such designs, also
touches upon certain aspects of unauthorised reprinting.^^
The question as to whether architectural plans, dress
patterns, designs,^^^ and such like constitute an object of
publishing right is more problematic. Here too one must
separate two aspects of the matter when evaluating it from
a legal point of view:
______________________
* Harum
**
***
****
^ [Haubold]
^^
^^^ Harum
Chapter 1 Page 50
if the function of a sketch, design, plan, drawing and
such like does not involve its being used directly* for
circulation in a number of copies as a representation of
the content which is impressed on it; if, on the contrary,
the product serves a concrete material function, then the
prerequisite for a publishing right is absent.**
However, if the given representation or illustration -
even if it had originally served a material use - is suitable
to be brought into circulation as an artistic representation,
be it for teaching purposes or for aesthetic contemplation,
then it unquestionably constitutes an object of publishing
right.***
__________________________
*
**
*** Friedländer
Chapter 1 Page 51
Similarly, artistic representations of works of
architecture etc. whose primary function is to serve
as illustrations in books also qualify for a publishing
right.*
In the light of what has been said, there can be no
doubt that sketches and drawings of artistic works qualify
for a publishing right insofar as they are objects suitable
for circulation.** The function, say, of serving as a sketch
for a painting,*** does not disqualify the former from a
publishing right, since this function does not lie outside
the sphere
____________________
*
**
***
Chapter 1 Page 52
artistic circulation. All that matters is that the main
significance of the sketch etc. is that of representing
an intellectual perception.*
The function of picture-books and picture-sheets,
namely to be used by children for colouring, cutting out,
pasting over, and playing with the pictures, is not one
which disqualifies them from a publishing right. For in
their fundamental significance picture-books also represent
an intellectual perception or idea, even if the degree of
their aesthetic value happens to be very inferior. Their
use in this way by children does not put them into the
opposite category to artistic works, that of objects
whose primary function is a material one.**
Even if architectural sketches and illustrations can
constitute an object of publishing right,*** the same does
not hold for the architectural works themselves. The
essential significance of a building lies first and foremost
in its material use: we are not dealing here with an
exploitation that is made possible by the reproduction,
publication, and bringing into circulation of an intellectual
idea. Even if one were to set great store on the intellectual
substance of the building or the artistic ideas which it may
embody, the architect was nevertheless certainly not
intending to
__________________________
*
** Harum
***
Chapter 1 Page 53
exploit his work by reproduction of his artistic ideas;
rather, he was concerned with the construction and use
of the building for material purposes. A reproduction
of the building by mechanical means would anyway be
impossible, and even if someone else were to construct
a similar building inspired by the original one, which
incidentally is just a case of imitation,* this does not
encroach on the commercial exploitation which the architect
draws from his work. Drawing or painting the building
encroach even less on the architect’s exploitation of his
work.**
Accordingly, Bavarian law explicitly excludes works
of architecture from the category of objects which are
entitled to publishing right.*** Representations of
architectural works, on the other hand, including sketches
and designs, can, according to Bavarian law, constitute
an object of publishing right.****
Practical inventions, such as those employed in
industrial production, belong to a different sphere to
that of publishing right.
______________________
*
**
*** Bavarian law
**** Harum
Chapter 1 Page 54
With such inventions the idea or the intellectual
perception of the inventor and the representation of
this idea are essentially the means of producing an
object which serves a material purpose, whereas for
the author of an artistic or literary work it is
precisely the idea or perception that he wants to
represent, reproduce, and put into circulation in a
number of copies.
It is true that protection by patent gives the
inventor similar privileges to those which publishing
right gives an author, but in fact the target of each
is fundamentally different. A patent does not forbid
third parties from representing and exploiting the same
object; what it does forbid is the use of the individual
means which were applied by the original inventor in
order to realize his idea and produce that object, e.g.
in the case of a spinning machine the particular
construction of each cog-wheel. However, anyone else
is allowed to realize the same aim using a different
construction design. Neither the inventor’s idea,
which merely serves as the means of attaining material
aims, nor the material object which is produced thanks
to the invention, can be put into the same category as
the works of an author.*
______________________
* Harum; German publishers’ memorandum at Congress of
Vienna; Gräff; Pütter
Chapter 1 Page 55
Just as in the above discussion we have distinguished
between some classes of artistic works,* we must also
separate from the category of literary works a class
of products which does not belong to the literary sphere
and which therefore cannot constitute an object of
publishing right.
To this class belong first and foremost laws and
decrees proclaimed by the State. These constitute an
announcement by the State to the whole community which
therefore becomes public property on publication and cannot
be the object of an exclusive publishing right.**
On the other hand, an adaptation*** of laws or decrees
which is undertaken by private persons can, insofar as it
otherwise displays the characteristics of a literary work,
constitute an object of publishing right. The same holds
for a bill or draft law which has been prepared for, or
is suitable for, literary circulation.****
__________________________
*
** [Mittermaler]; Blanc; [Gastambide]
***
****
Chapter 1 Page 56
A mere edition of laws or decrees cannot be turned
into a literary work by a monopoly or privileges or the
prohibition of unauthorised reprinting. The latter would
merely place an altogether quite different category of
objects superficially next to that of literary works under
the aegis of a prohibition on unauthorised reprinting.*
Such a prohibition is in place in the Grand Duchy of Hessen.**
_____________________
* Harum; Renouard
** Hessen law 1830; Austrian law; Bavarian directive;
Harum
Chapter 1 Page 57
State treaties also fall into the same category as
laws. Their purpose is to set down the arrangement reached
by the will of the states concerned, and their text
therefore belongs to all as public property.*
On the other hand, an edition or special compilation
of such documents can qualify for a publishing right.**
________________________
*
**
Chapter 1 Page 58
Official announcements, edicts, the publication of
ordinances, decrees, and such like cannot be considered
as literary works, since they do not belong to literature;
rather, they serve the material purpose of an official
communication.* This is also the case with proclamations,
pastoral letters, and similar enactments.**
However, if these texts are given a literary form
then the resulting literary works do indeed constitute an
object of publishing right.***
_______________________
* Friedländer; Harum
** Heydemann; Harum
*** Blanc
Chapter 1 Page 59
The same principles apply to official reports,
official correspondence, official instructions and similar
documents elaborated for official purposes. Primarily they
belong to a different sphere to that of literature, but they
may not be brought into literary circulation (if they are
suitable for that) without the permission of their originator;
and if, apart from their official status, they can be regarded
as literary works by virtue of their content, then they
constitute the object of a publishing right.*
In general, if a document has been elaborated by a civil
servant, the author’s right to dispose of it as he chooses is
constrained in accordance with the given circumstances, though
this has no implication for the quality of the work or the
status of his authorship. One therefore has to distinguish two
questions: 1) to what extent is the document as such, by virtue
of its content and form, a literary work? and 2) to what extent
is the author’s right of disposition constrained by his
official status? The first question can be resolved in
accordance with the general principles about the requirements
that literary works must fulfil, whilst the second must be
decided in the light of the specific circumstances. In this
respect
______________________
*
Chapter 1 Page 60
the author of the items of a law, or the reporter of a
commission which is considering a draft law, cannot
prevent the publication of his work as it arises in the
given circumstances.* Similarly, the government has the
right to print a report it has commissioned from an assessor
on some public matter. On the other hand, the obligations
of official confidentiality and such like may well impose
restrictions on the author as to the publication of his
work.**
Reports whose content is scientific or technical
present us with a dual aspect: insofar as they merely
deal with a concrete case and a material use, they remain
outside the sphere of literature, but if by virtue of their
content alone they are of general interest and thus suitable
to enter the literary sphere, then this makes them into an
object of publishing right.
For example, if, during a trial, a report was presented
about the value or state of a merchandise, this does not in
itself constitute a literary work. Therefore, if someone
relating this particular trial were to include in his
published account the report word for word, no publishing
right would be violated with respect to the latter, because
not until the literary account of the trial did this report
become part of a literary work.
_________________________
* [unreadable name]
**
Chapter 1 Page 61
If, on the other hand, a general issue is discussed
in a report in such a way that the latter is immediately
deemed suitable to enter literary circulation, e.g. when
a physician discusses in a scientific report the treatment
of cholera, or a scientist that of potato blight, the fact
that such a text owes its origins to a specific practical
case or to a commission by the authorities, does not divest
it of the character of a literary work.*
The same principles apply in general to judicial
records, that is, to minutes of the proceedings, pleadings
and the speeches of lawyers, the statements of experts or
witnesses, recorded in the course of law trials etc. All
these are not literary works, as they belong to a
fundamentally different realm to that of literature.
Consequently, it follows that:
a) when true literary works, whose purpose it is to
enter literary circulation, are merely written in the form
of official relations, as is the case, for example, with
fictitious legal documents used for teaching purposes, or
_______________________
*
Chapter 1 Page 62
with stories, disquisitions, correspondences etc. which are
dressed up as official documents, then such a text must be
considered to be a literary work and hence an object of
publishing right. This is also the case
b) when real official documents, disregarding the
original purpose of their creation, are edited as literary
works so as to be brought into literary circulation. For in
this way they leave the sphere of their original purpose and
enter that of literary works. This namely is what happens
when law cases, legal precedents, proceedings, and such like
are edited and published for scholarly purposes.
If, however, the intention behind such publication is
not a literary one and it is instead directed at realizing
the concrete material aims called forth by the legal document,
e.g. when a court of justice publishes a verdict it has passed,
then we are not dealing with literary activity as such and
there is no object of publishing right, whose purpose is to
protect only the commercial interests of authors.*
It is worth mentioning, though, that insofar as the
statements and speeches made by any given party during a
trial are suitable for literary divulgation, the latter is
reserved to their originator’s publishing right.** He alone
has the right to bring his speech, just as he had composed it,
into literary circulation by publishing it.
The public nature of a speech does not divest it of the
quality of a literary work, even if public discussion of the
speech, e.g. reports made on it in public newspapers
____________________
*
**
Chapter 1 Page 63
can be freely undertaken by anyone.* This applies not
just to speeches on scientific subjects given at an
Academy conference or the like,** but also to the speeches
of a politician or member of parliament, and indeed to any
official speeches. However, when Bluntschli*** is prepared
to concede the right of every third party to reproduce such
speeches even in special copies, e.g. for political purposes,
he is probably going too far and certainly further than his
justification for this would allow. He argues that such
speeches “belong to the public and the community at large
to so great an extent that no individual authorial right
should be allowed to prevent their divulgation”, but in fact
the speeches belong to the public only in terms of their
intellectual content, as it is disclosed by the usual media
of public communication, namely the public newspapers. This
does not mean that the authors of these speeches lose their
right to bring them into circulation as objects of commercial
exploitation.****
________________________
* [Gastambide]
** [Gastambide]
*** Bluntschli
**** Harum
Chapter 1 Page 64
Even speeches held in public are entitled to as much
protection as public lectures or sermons from the
commercial exploitation by any third party, and the
orator by no means forfeits his right to draw revenue
from his speech by publishing it. Thus, it is clear
that “the public” must be understood in the sense
that anyone is entitled to hear the speech and
consequently, since ideas can always be freely divulged,
that person can notify others about the content of the
speech which he had heard. But this does not mean that
the orator’s authorship, and the legal consequence
thereof, namely the publishing right, somehow ceases.*
As soon as the speech becomes a literary work, its
exploitation in this form belongs to the author alone,
who may transfer it to others.
In the case of public notices another factor must
be taken into account: such notices or announcements
are not in themselves literary works and so do not
constitute an object of publishing right for the person
who wrote them. Thus, it is not just their public
character which causes this to be so. This category
includes death notices,
______________________
* Federal directive 1837
Chapter 1 Page 65
sales offers, advertisements for places of entertainment
etc., followed by book catalogues, programmes of celebrations,
railway timetables etc., as well as play-bills, stock-
exchange lists, price lists etc.* Their whole significance
lies outside the literary sphere and consists of a specific
material purpose. They just serve to give notice of certain
facts, and their written form is merely a medium with no
significance as such. It is clearly impossible to speak
of authorship here.
However, one must distinguish between such notices
and their compilation in an advertising journal, for the
latter does indeed imply authorship and entitles the
journal’s editor to a publishing right.**
Inscriptions on monuments and the like can also not
be considered objects of publishing right, since their
purpose is not that of literary circulation, even though
they may very well, depending on the content, be the
result of genuine intellectual creation.***
Standard texts and forms whose purpose is not at
all to represent an intellectual content, but, rather,
to find an immediate material use, and which therefore
do not belong to the realm of literature, are also not
objects of publishing right. To this group belong forms
used for contracts and certificates, e.g. freight
warrants etc.****
________________________
* Blanc; Harum
**
***
**** [Haubold]; Heydemann
Chapter 1 Page 66
If genuinely literary works are used as such
on certain occasions, e.g. songs as church hymns,
books as text-books for lectures or school lessons,
the purpose which they are serving is not one which
deprives them of their literary quality.*
Communications made to specific persons in the
form of letters have a special function which does
not primarily belong to the literary sphere. A
letter, for example, which merely conveys the
exchange of information between two specific persons
regarding individual matters and material purposes,
cannot be treated as a literary work nor, therefore,
as an object of publishing right.** However, if an
epistolary communication were to contain a scholarly
discussion, then there can be no doubt as to its
literary character and qualification for publishing
right.
Quite often unquestionably literary works are
______________________
* Heydemann
** Friedländer
Chapter 1 Page 67
presented in the form of letters,* although they were
not addressed with specific persons in mind, or, even
if they were, this was not their only purpose. The
epistolary form is therefore no conclusive criterion.
Neither is the intention in which the letter was
written decisive,** since quite often a correspondence
is only retrospectively assigned for literary circulation
and published, although this in no way makes it less
of a literary work. Thus, the question as to whether
a letter can be considered an object of publishing
right cannot be resolved by reference to its function
as a letter; rather, it must involve a consideration
of its content, for, in general, it is not the form
which marks out a work as an object of publishing right.***
If by virtue of its whole intellectual substance, a
letter is suited to enter literary circulation, then
it is a literary work and hence an object of publishing
right.****
It is without any justification that Jolly^
rejects the literary quality of letters by denying that
letters in their original form can be suitable objects
of literary circulation. This is an assertion which any
publisher’s catalogue will belie. The “historical
interest” to which
______________________
*
**
***
**** Austrian and Prussian laws; Harum
^ Jolly
Chapter 1 Page 68
Jolly seeks to reduce the significance of such publications,
is certainly not what constitutes the essence of a literary
work. This interest, as well as the standing of the author,
his literary profession, and also the importance of the
subject treated, can only modify the literary value of
a literary work and justify its publication, but a
published correspondence remains a literary work even
if lacking in all historical interest.
Any work which is capable of appearing in literary
circulation, or which already has been published, is a
literary work. From this it follows that letters which
have been printed for literary circulation against the
will of their author must also be considered literary
works and an object of publishing right.*
A different question is that of the publishing
right for a collection of such letters to which the
authors or their legal successors can no longer assert
a claim because the term of their individual publishing
right has expired. A collection of this kind, by virtue
of its being the work of the compiler, can constitute
for him an object of publishing right.**
Now, just as, on the one hand, those objects for
which a publishing
________________________
* Bluntschli
**
Chapter 1 Page 69
right is claimed, have to possess an essentially
intellectual, a literary or artistic, quality, so
the concept of a literary or artistic work is, on
the other hand, endowed with a material quality based
on property law. For the publishing right is essentially
a right of material exploitation and hence presupposes
such objects as are capable of being exploited in this
way. It is an exploitation which is made possible by
the literary and artistic circulation of such works.
One must not, however, expect the author, before or
during the creation of his work, to have as his conscious
aim such exploitation, for it is often the case that
a writer who is working out of scholarly interest does
not immediately think of his possible financial gain.
This, though, does not mean that he has forfeited his
work and the remuneration which he may receive from
a publisher.
Thus, when Saxon law demands that the work must
actually have been conceived with financial gain in
mind,* this is true only insofar as no contrary
intention has been declared [by the author]. In cases
of doubt, every work which is suitable as such for
commercial exploitation must be considered to have
been intended for this (in accordance with its nature).
A work is considered to be a literary and artistic
work and, therefore, an object of publishing right,
when it is suited to enter literary or artistic
circulation.**
________________________
* Saxonian Copyright Act 1844
**
Chapter 1 Page 70
It is not necessary, however, for it to have already
come into circulation. Accordingly, unpublished works,*
that is, manuscripts, and even oral communications
which have not yet been set down in writing,** are
by no means excluded from publishing right.
When Goethe and Schiller, for example, gave free
rein to their grievances [against the rest of literary
Germany] in the Xenien, they produced
thoroughly literary works which were ready for
immediate publication and undoubtedly constituted an
object of publishing right. However, when Goethe treated
Eckermann to his conversations, Eckermann was able to
edit the content of these and thereby present a
literary work; but had someone else recorded those
_____________________
* Federal directive 1837; Austrian law; Prussian
Copyright Act 1837; Bavarian law; Saxonian Copyright
Act 1844
**
Chapter 1 Page 71
conversations between Goethe and Eckermann on the
spot and published them, this would not be an
infringement of a publishing right of Eckermann’s
or Goethe’s, since before they were edited on paper
these conversations could not be an object of
publishing right, that is, a literary work.
However, had Goethe in the course of these
conversations suddenly improvised a poem, the latter,
by virtue of being completely suited to become a
part of literature, would as a literary work
immediately have constituted an object of publishing
right for Goethe, and anyone else who reproduced it
without his authorisation would have been guilty of
illegal reprinting.
A musical composition which has not yet been
put to paper is in an analogous position to that
of an oral communication [as discussed above].
A composition which has only been played is without
question just as much an object of publishing
right for the composer as if he had written down
its score.*
In general, the oral character of a communication
cannot serve as grounds for excluding it from the
objects of publishing right, even if the person who
made it did not originally intend it for literary
circulation** and his words were, instead, pronounced
in all spontaneity and
_____________________
* Harum
** Schelling-Paulus legal case
Chapter 1 Page 72
addressed to a specific circle of people or to an
unspecified crowd of listeners. For this in no way
excludes the possibility that his address could be
published and brought into literary circulation,
thereby making it an object of commercial exploitation,
as long as it possessed the quality of a literary work,
as far as form and content are concerned.* In this case
the originality or significance of the form in which
the person’s words are pronounced is irrelevant. That
is why Jolly** is wrong to exclude from legal protection
those oral communications in which only the content,
but not the chosen form, can be said to have some value.
For the notion of a literary work, which is the decisive
concept, does not depend on this [value of the form].***
Thus, scholarly communications, for example, can
constitute literary works, even if the form in which
they are presented were devoid of all value. Jolly’s
criterion would put legal protection at the mercy of
purely subjective opinions. Another factor which is
irrelevant is the nature or size of the audience in
front of which a person pronounces his words.****
________________________
*
** Jolly
*** Harum
****
Chapter 1 Page 73
Even less does the oral character of a
communication imply a renunciation of the exclusive
publishing right.* The fact that an address was
delivered orally has absolutely no bearing on the
publishing right. For this reason it cannot be
argued either that where the person delivering the
address, e.g. a public lecturer, has been employed
in order to give such addresses,** he has somehow
forfeited his publishing right.
As far as the provisions which positive law
makes for oral communications are concerned, all
that the federal decrees say is the principle which
we have been applying here throughout, namely, that
literary works of all kinds qualify for publishing
right.*** The laws of the various German states
make their own special provisions- sometimes,
though, depriving genuine literary works of publishing
right or endowing with it products which are not
really literary works.
Austrian law only accords protection to such
addresses as are delivered with instruction, spiritual
edification, or entertainment in mind.**** Underlying
this is the principle that a speech, in order to be
considered a literary work, must essentially not
serve as the means for a material purpose extraneous
to literary circulation;
____________________
* Eisenlohr 1855
** Blanc
*** Federal directive 1845
****
Chapter 1 Page 74
rather, its fundamental purpose must be the
representation of its intellectual content.
Addresses delivered for the purpose of
entertainment are also covered by this principle,
insofar as their sole intention is to provide
entertainment by means of their (material and formal)
content.*
In Prussia the legal protection of oral discourses
is limited to sermons and lectures,** which means that
poetic improvisations, for example, would seem to be
excluded.
Bavaria, like Austria, protects those discourses
which are delivered for the purpose of instruction
or entertainment.***
Saxon law keeps to the general principles
which we have discussed here, and emphasizes that
it should be irrelevant whether a work is presented
to the public in the form of an oral discourse or
is divulged otherwise.****
In Württemberg only “sermons and lectures
which have been given in a state of the German
Confederation” are treated on a par with protected
printed publications.^
Since, as we have discussed earlier, the legal
protection of a work cannot be made conditional on
its entry into circulation,
______________________
*
** Prussian Copyright Act 1837
*** Bavarian law
**** Saxonian Copyright Act 1844
^ Württemberg law
Chapter 1 Page 75
it must also be so that the way and manner in which
a work is introduced into circulation cannot be what
decides whether it qualifies for legal protection.
What is more, the question as to whether the literary
or artistic work was brought into circulation by the
author under his own name or even whether this was
done by the author himself,* is irrelevant when
deciding if the work is an object of publishing right.
Thus, anonymous, pseudonymous, and posthumous works
also qualify for legal protection.
If we first of all consider anonymity and
pseudonymity, it is fair to say that the nature of a
work is not affected by whether the author has
disclosed his name to the public or whether he has
put an adopted name or no name at all on the title-page
of his work.** By no means does anonymity imply a
renunciation of publishing right, since in general
such renunciation cannot be assumed, and it is wrong
to deduce it from the fact that the author has
concealed his name given that there are various
reasons why he might have chosen anonymity, e.g. if
he did not want to subject himself openly to critical
scrutiny, whilst not disdaining the financial gain
that accrued to him from his work. The only effect
of anonymity or pseudonymity is to modify the
calculation of the term of legal protection and the
clarification of the person who
______________________
*
** Maurenbrecher 1855
Chapter 1 Page 76
is to be legitimised as the holder of the publishing right.*
Even less relevant to the question of authorship and
the literary qualification of a work for publishing right,
is whether or not the publisher is named. It was only as
a prerequisite formality for legal protection that the
federal Diet of 1837** demanded that the publisher’s name
be stated on the work. The same formality is required by
Bavarian law.***
Just as with unpublished manuscripts, one cannot deny
the literary quality and hence publishing right of posthumous
works. For the fact that a work is published after its author’s
death cannot affect a property right which is after all based
on authorship; the only effect it can have is a modifying one
regarding the person who is to exert this right and how long
he is to exert it for.****
If, therefore, when determining which objects qualify for
a publishing right, it is irrelevant how and by whom a work
was brought into circulation, this means that the class of
literary or artistic phenomena to which a work is ascribed
and, similarly, the form and shape in which it comes into
circulation, all have no bearing on the question as to
whether it qualifies for a publishing right.
______________________
*
** Federal directive 1837
*** Bavarian law 1840
****
Chapter 1 Page 77
The object of a publishing right must always be a
literary work, irrespective of whether it comes into
literary circulation as a book, treatise, pamphlet,
as one whole or in parts, in sequential order or
otherwise, as a journal* or in any other form.
Similarly, the publishing right for an artistic
work must remain uncontested, irrespective of whether
it is fashioned as a painting, drawing, sketch, design,
copper or steel engraving, lithographic print, woodcut,
or as works of the art of engraving and etching, or as
a statue, relief, sculpture, made with a chisel or cast
from a model, or as the work of any other plastic or
graphic art,** as long as an artistic creation and
authorship can be shown. This is what is absent in
daguerreotypes, photographs, copies made by galvanoplastic
methods, natural self-pressing and such like.***
In musical compositions too authorship can manifest
itself in several forms, e.g. as a simple melody, as a
theme and variations, as a symphony or sonata, as an
oratorio, as sacred music, as a chorale, as spiritual
or worldly music, as a march, dance, opera, musical
tableau, pot-pourri, improvisation etc., as incidental
music for the stage, concert-hall music, chamber music,
_______________________
* Heydemann
**
***
Chapter 1 Page 78
dance music, military music, as a vocal composition
or for any number of instruments.*
All these kinds of musical composition can
constitute the object of a publishing right, as
long as they satisfy the general requirements for
such an object.
In this respect it is irrelevant whether
the composition is intended for entertainment,
spiritual edification or, say, for teaching
purposes. With regard to the latter, singing and
piano exercise manuals qualify as much for a
publishing right as do textbooks and teaching
manuals.
Similarly irrelevant to the legal
consideration of which objects qualify for
a publishing right is the manner of diction
(in prose or poetry, and within the latter
the poetic genre: epos, drama, lyric poetry
etc.**), as is the manner of presentation
(in popular or scholarly exposition***), and
likewise the means of expression and the
language signs used (letters, ciphers, etc.),
as long as the work is written in such signs
as are appropriate, that is, intelligible, for
circulation. Incidentally, mathematical drawings,
geometrical, stereometrical, algebraic, and
arithmetic signs without any accompanying text
do not yet qualify for a publishing right of
their own, since on their own they do not yet
constitute an intellectual content or notion,
__________________________
*
**
***
Chapter 1 Page 79
a scientific idea or concept. They will therefore
only be found as subordinate components of literary
works in circulation, not as works in their own
right, though not at all for the reason suggested
by Jolly,* namely that “a geometrical drawing, for
example, is just a symbolical means of representation
of the idea which underlies it”. For why should a
symbolical means of representation be excluded from
publishing right? If, for example, one were to write
a book in hieroglyphs instead of letters, as long as
it was suitable for circulation (i.e. intelligible)
it would undoubtedly qualify for a publishing right.
Similarly, a work which can be expressed in
mathematical signs and one which is composed in
ciphers or pictures (such as puzzles, charades,
numerical riddles, rebuses etc.) must also be
considered as a possible object of publishing right.**
In determining the objects that qualify for
publishing right it is also irrelevant in what
language a work has been written,*** be it in the
native language of the place of residence of the
author or publisher, or a foreign, modern or
classical (scholarly), language, since literary
circulation does also include works composed in
a foreign dialect.
The language does come into question in a
different context, namely when considering whether
a translation
_______________________
* Jolly
** Jolly; Harum
*** Blanc
Chapter 1 Page 80
counts as an object of publishing right. There is no
doubt that a translation is a literary work,* even if,
not unlike a copy, its intellectual substance is usually
derived from the translated original. In this respect
the publishing right for a translation cannot extend
to that which belongs to the translated original work,
but merely to what is peculiar to the given translation,
to what actually constitutes original creation on the
part of the translator. For this very reason a translation
does not justify the right to exclude other translations
of the same work.**
However, there also arises the new question as to
what extent the translation as such is unauthorised
and therefore not qualified for protection, i.e. to
what extent the translator by his translation encroaches
on the publishing right of the original work he has
translated. This question will be discussed when we
consider the objective facts of unauthorised reprinting.
At this point we should just say in general that the
translation must be an authorised, legitimate one,
in order to qualify for a publishing right.***
If, then, it is the intellectual content which
makes up the essence of an object of publishing right,****
this means that the legal protection of a work cannot
be made conditional on its external size. Thus, a work
of very modest size can, as an intellectual creation,
clearly have
_________________________
* Austrian law; Hamburg directive 1847; Hessen law 1830;
Gotha directive 1828
** Hessen directive 1829; Hessen law 1830
***
****
Chapter 1 Page 81
a value in circulation. It is not, however, on the
sum-total of this value that the legal protection
of a work ultimately depends.* Neither does this
protection cease when the work enters into circulation
just as a component of a greater whole, in combination
with other component parts. For a law which guarantees
in general the protection of a work will, in cases of
doubt, also accord it to the work’s individual components.**
However, even if these components, each considered
individually, could not on their own appear as objects
of circulation, they must nevertheless enjoy legal
protection by virtue of the work in which they are
incorporated.***
In this respect the question may also arise as
to whether the title of a work is the object of a
publishing right. Now, the title is not an intellectual
_____________________
* Renouard
**
***
Chapter 1 Page 82
creation, that is, the manifestation of an
intellectual substance and content with an
inherent value. It merely serves to designate
the work.* If one were to apply the principles
of publishing right to the title, this would have
some awkward consequences,** even though there
may well be legal grounds in favour of the idea
that the author should receive special protection
regarding the use of the title which is peculiar
to his work.***
Similar considerations to those we have just
discussed also apply to the author’s name.****
Just as a literary work’s publishing right
is independent of its form and size, so it is
independent of the type of its material content,
that is, of the subject-matter which is represented
or discussed in it.^
In this respect, as far as literary works are
_______________________
* [Gastambide]; Harum
** [Gastambide]
*** [Gastambide]
****
^
Chapter 1 Page 83
concerned, accounts or notifications of bare facts
(factual accounts) are as such not excluded from
the legal protection of literary works, since the
laws protect literary works of all kinds, and such
accounts are also intellectual creations and can be
suitable for circulation.* Consequently, one must
recognize a publishing right for the so-called tabular
works (whose content may be mathematical, historical,
statistical etc.**), since in these cases the element
of intellectual creation lies in the conception,
arrangement and presentation according to specific
aspects and purposes. Jolly*** wrongly claims that
“the most basic calculation tables” cannot be
considered literary works because the information
which they contain is public property to such an
extent that, as he argues, it is hardly possible
to come up with a manner of representing this
information which would display the originality
required of an intellectual creation. Certainly,
insofar as the content is public property, its
incorporation into a table cannot, of course,
justify a right of exclusive exploitation thereof,
but insofar as the manner of representation is
indeed the individual work of the table’s author,
one cannot deny him a publishing right for it.****
_________________________
*
** Volkmann; Blanc
*** Jolly
**** Jolly; Friedländer
Chapter 1 Page 84
Similarly, dictionaries are without question
literary works and objects of publishing right.
Likewise statistical records, even directories
(address books), ranking lists and other works of
this kind, even if they do not require scholarly
enterprise.* And no less so, works which give rules
based on general knowledge, e.g. recipe books.**
Where the justification of publishing right for
artistic works is concerned, the particular kind of
subject-matter and content which they represent is
as irrelevant as for literary works. They may be
inspired by Nature, history, or the imagination and
inventive powers of the artist; they may be a
representation of a landscape, a historical scene or
a portrait, or one of animals, flowers, fruits, or a
genre painting, an allegory or indeed any possible
kind of artistic composition. For in all these objects
the representation of a physical form is conveyed by
an individual perception that arose in the spirit of
the originator, which means that in all these cases
there is authorship.
_______________________
*
**
Chapter 1 Page 85
Moreover, the significance of the work as far as its
circulation is concerned lies in this very representation,
rather than in extraneous material purposes.
In this respect representations which are conducive
not so much to aesthetic contemplation as to the
presentation of scientific knowledge or the illustration
of external objects- such as geographical, topographical,
astronomical maps, as well as drawings or models and
embossed maps of this kind, and geological, mineralogical,
botanical, anatomical and similar illustrations, as well
as drawings of heraldic coats of arms and coins- are
the object of publishing right.*
____________________________
* Austrian law; Prussian law; Hessen law 1830; Brunswick
law; [Meining] directive 1829; Harum
Chapter 1 Page 86
In the special case of newspapers some hesitation
may be possible due to the nature of their content
and purpose.
Journals as such are without question literary
works which constitute an object of literary
circulation and hence qualify for publishing right.
Their periodical publication and what this implies
for the way they are sold do not make for any
substantial difference. However, as far as content
is concerned, if an article included in such a journal
merely reproduces a fact or objective observation,
it cannot be said to have been presented by the author
as a work of his individual spirit and, from an
objective viewpoint, does not constitute a creation
whose essential significance lies in its intellectual
content and is therefore not a literary work. For the
latter, being intrinsically spiritual, must always
contain something which goes beyond the merely factual.*
Such newspaper articles which are purely factual
in their particulars, e.g. a piece of news on the rate
of the stock exchange, or the retelling of rumours
which are circulating, etc., cannot be considered
literary works.
Even if such a communication were to contain a
purely invented fact, that is, a lie, it would still
not qualify for a publishing right for the simple
reason that it was presented as a purely objective
fact, rather than as a work of the newspaper’s
correspondent,
_________________________
*
Chapter 1 Page 87
and it must therefore put up with being treated
accordingly.
However, as soon as a newspaper article bears
the intellectual stamp of individual authorship
and intellectual individuality, and this content
predominates in the article, it must be considered
a literary work* and as an object of publishing
right for its author.
This can only be determined by consideration
of the particular circumstances of each individual
case.** Moreover, an article by an ingenious writer
and shrewd observer can differ greatly from the
report of a run-of-the-mill scribe, which, like the
image seen in a camera obscura, could just as well
have been provided by anyone else. Thus, it is
impossible to agree with Bavarian law’s general
exclusion of “pieces of news, news flashes,
articles and treatises which appear in public
journals” from publishing right.***
The question as to whether and to what extent
the journalist transfers his publishing right to
the publisher of a journal when he sends in his
article,**** must be considered separately from
that of determining which kinds of articles are
objects of publishing right.
Although some of the individual articles in
a journal may not qualify for publishing right as
discussed earlier, this cannot be the case with
the journal as a whole, for the latter constitutes
without question a literary work, a work of the
editor and an object suitable for literary
circulation. The difference
______________________
*
** [Gastambide]
*** Bavarian law
****
Chapter 1 Page 88
between individual articles and the journal as a
whole manifests itself most clearly in the case of
an advertising journal. The editor is striving for
the sale of his journal and financial gain, but the
latter does not affect the individual who has
inserted an advertisement.* Accordingly, Jolly’s**
assertion that “the publisher of a newspaper is
entitled to no right whatsoever regarding the
advertisements which he is sent for publication”
must be modified. The publisher cannot, however,
prevent the sender from passing on his advertisement
to other newspapers as well, and the editor himself
acquires no publishing right for the content of
the individual advertisements, since these do not
constitute literary works and it is not possible
to speak of authorship in their case, and, moreover,
since it was not at all the sender’s intention to
claim an exclusive right. However, a publisher can
claim protection and protest against the unauthorised
reprinting of his journal in its entirety by other
journals. This legal protection which the newspaper
enjoys as a whole is based on the essential substance
of the journal: if it were to consist in the given
articles, the editor’s publishing right would also
have to hold for them too. As a rule, though, an
individual article will rarely represent this
essential substance.***
It is another consideration which excludes
from publishing right the official communications
that are submitted to a newspaper: namely, the fact
that these, by virtue of their official function,
are not the object of a publishing right.****
Closer to the category of literary works is that
___________________________
*
** Jolly
***
****
Chapter 1 Page 89
section of a newspaper which contains the actual
[review] articles, and which, depending on the
circumstances, may well constitute the essential
substance of the newspaper. Unauthorised reprinting
of the latter, especially if it is done continuously,
can by its rivalry significantly harm the newspaper’s
commercial exploitation and its literary circulation.
Therefore, there is every reason to give the newspaper’s
owner protection with regard to this substance.*
In this respect, telegraphic dispatches must also
be taken into consideration, for they cannot simply be
excluded from publishing right. Of course, the fact that
a piece of news has been sent in by telegraphic means,
rather than by post, does not turn it automatically into
a literary work. But, similarly, this means of transmission
cannot render an object which is a literary work or part
of one into a non-literary work. Thus, telegraphic
transmission is in itself no juristic criterion, and
in any case a literary work which would be treated as
such when sent in by other means must also qualify
for protection when conveyed telegraphically.**
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*
** Jolly; Harum
Chapter 1 Page 90
As a rule, however, telegraphic dispatches
usually consist of purely factual communications
and, if intended for publication in newspapers,
fall into the category of newspaper articles of
this kind.
Even the fact that such dispatches are
generally more expensive and arrive more quickly
than postal letters cannot elevate them to the
category of literary works if they do not belong
to these as such.* However, this factor does give
rise to a special situation for the telegraphic
dispatches which are included in newspapers and
journals, and justifies the extension of the
newspaper’s publishing right to also cover that
part of their substance which consists of
telegraphic dispatches. The significance of
newspapers in circulation lies essentially in the
speedy communication of news: a newspaper is held
in greater esteem the faster it conveys the latest
news. The essential substance of such newspapers
is concentrated in the headings of their
telegraphic dispatches, so that the reproduction
of this essential substance by rival newspapers,
especially if done repeatedly or professionally,
would evidently encroach on the commercial
exploitation of the original newspaper. In the
legal realm, however, when taking into account
the aspect of commercial exploitation, as must
be done for publishing right, the essential
component of a literary work is that for whose
sake chiefly the work is held in esteem and paid
for in literary circulation, and it is with this
in mind that the newspaper’s owner is careful to
lay out the most expenses where they are most
needed. But it is not so much these expenses
__________________________
* Jolly
Chapter 1 Page 91
as the effect that they are meant to bring about
for the newspaper and the commercial exploitation
of this literary work which justify legal protection.
This justification is not at all affected by
the following counter-inference by Jolly:* “If the
same telegraphic dispatch that appears in one
newspaper is also published in another, the owner of
the first newspaper can and will not complain that
someone else has published, perhaps almost
simultaneously, the same piece of news as he. Rather,
he must and will be content if the other newspaper’s
owner received the dispatch addressed to him personally
and had to pay as much for it as he had had to.” This
is certainly no case of unauthorised reprinting.
However, the case we are dealing with here is by no
means that of various people are drawing from the
same source, so the latter can have no bearing on
the question which has been raised. Furthermore,
where a published dispatch is indeed reprinted
without authorisation, the ill feeling this
provokes is caused not, as Jolly (ibid.) argues,
by the sheer “feeling of anger or envy that someone
else is able to publish an interesting piece of news
for a lesser price than you were able to”.** It is
caused, rather, by the fact that the other person
is copying it from the newspaper of the first and
thus encroaching on his commercial interests.***
_________________________
* Jolly
** Jolly
***
Chapter 1 Page 92
The literary or artistic tendency of the work
is also irrelevant for the publishing right, be it
scholarly, entertaining, edificatory etc., and
whatever the particular aims it may pursue, for
literary circulation and authorship comprise all
these designations.*
Such works, on the other hand, which it is
not permitted to bring into circulation, that is,
immoral and forbidden works, cannot be an object
of publishing right; they cannot lay claim to
commercial exploitation nor to protection in
their reproduction and distribution.**
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* Luxemburg law [1817]
** Renouard; Eisenlohr; Friedländer; [unreadable
name]
Chapter 1 Page 93
Those works whose dissemination would be a
crime because permission would not have been
granted for their publication, also do not qualify
for legal protection,
Chapter 1 Page 94
since the law on unauthorised reprinting is intended
to protect only such activity of an author as is
permitted [by the authorities].*
Similarly, publishing right cannot be claimed
for a work which is merely a forbidden unauthorised
copy of another work.**
However, if the illegal quality of the work
ceases, this also removes the grounds for not
according it a publishing right.***
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* [Mittermaler]
**
***
Translation by: Luis Sundkvist