# Primary Sources on Copyright - Record Viewer
Supreme Court on Originality , Madrid (1861)

Source: Archivo del Tribunal Supremo. id. Cendoj: 28079110011861100099

Supreme Court on Originality , Madrid (1861), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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8 translated pages

Chapter 1 Page 1

                                                            Seven Hundred fifty-nine
      [On the left margin]
      Ramon Lopez Vazquez
      Sebastian Gonzalez Nandin
      A – Gabriel Ceruelo de Velasco
      Joaquin de Palma
            In the city and Court of Madrid, on 4 December 1861,
      the case concerning Mr. Vicente Pujals de la Bastida against
      Mr. Tomás Hurtado for plagiarism and damages are brought before
      us as a cassation appeal that the first mentioned lodged against
      the decision of the First Chamber of the Real Audiencia (High Court)
      of this Court:
            Whereas Mr. Vicente Pujals published in 1851 a Cartilla para
      enseñar á leer (Primer for teaching how to read) and in 1855
      a supplement entitled Cartilla progresiva pa-
      ra enseñar a leer con la mayor facilidad y prontitud
      sin necesidad de Caton, (Progressive Primer for teaching how to read
      very easily and quickly without the need of a First Reading Book).
      He presented copies of it to the Ministry of Public Instruction and Public Works.
      He was issued with the relevant certificates:
            Whereas in 1856 Mr. Tomás Hurtado printed a book

Chapter 1 Page 2

      entitled Consideraciones sobre enseñanza de
      la lectura del idioma español, (Considerations on
      teaching how to read the Spanish language), in which
      he censured Pujals' Cartilla (Primer)
      and several other methods. He published a new one
      later on, divided into two parts, for teaching
      how to read briefly, easily and correctly in the
      same language:
            Whereas on 7 March 1857, Pujals concluded that
      the last mentioned was a plagiarism of his Progressive
      Primer without any other addition than joining capital
      letters with lower case letters and the letters "h" and "y".
      He filed a claim at the First Instance Court in the
      district of Las Vistillas in this city claiming that,
      pursuant to the law of 10 June 1847, Mr. Tomás Hurtado
      be condemned for the publication he had made as his own,
      of the first and second parts of the New method for teaching
      how to read the native language briefly, easily and correctly:
      that all the copies found of this work should be destroyed,
      and by way of damages,that he should pay another 3,000
      in folio and in 8 of the Progressive Primer,and the legal costs:
            Whereas Mr. Tomás Hurtado counterclaimed, asking
      that the claim should be dismissed and declared that
      it was not true that he had adopted

Chapter 1 Page 3

      what Pujals published in 1855 for his method,
      because both of them were essentially different.
      His was original in the idea, order of words
      and examples that dominated it; he added in
      the rejoinder that the law could not prohibit
      publishing works of the same class and addressing
      the object itself, however similar the method
      might be with regard to its ideas, essence and form,
      because the explanation and development constitute
      a property that is different from the reprinting
      and reproduction.
            Whereas, having presented the evidence that
      the parties produced, the Judge of the First Instance
      Court issue its decision on 26 October 1857 that the
      First Chamber of this Court confirmed on 30 June 1859.
      They acquitted Mr. Tomás Hurtado of the proceedings filed
      by Mr. Vicente Pujals de la Bastida, who lodged the current
      cassation appeal on the belief that Articles 1 and 10 of
      the aforementioned Literary Property Act and one of the
      axioms applicable to every proceeding had been infringed,

Chapter 1 Page 4

      although the decision was based on the fact that
      the Cartilla (Primer) had already been
      published by the Sala y Armella brothers, when this concept
      is otherwise.
       Verified by Minister Gabriel Ceruelo de Velasco
      who was the Reporting Judge:
            Considering that, according to Art. 1 of the law
      of 10 June 1847 and for its effects, literary property
      means the exclusive right of the authors of original writings
      to reproduce them or to authorize their reproduction by means
      of manuscript, printed, lithographed copies, or by any other
      similar means,and that Art. 10 prohibits reproducing someone
      else’s work without permission from its author, under the pretext
      of annotating, commenting on it, adding it or improving its edition.
            Considering that Mr. Tomás Hurtado, when he published his
      Nuevo método de lectura (New reading method) did not
      reproduce the original writing, that is, the same
      work that Mr. Vicente Pujals issued for the same purpose,
      as he clearly recognizes in his documents, he confined himself to claiming
      that Hurtado had taken and reproduced as his own, the idea or method adopted
      by him in his cartilla (Primer),

Chapter 1 Page 5

      which belonged to him and consequently he committed
      a true plagiarism, included in the provisions of the
      aforementioned Act and he should be punished for it:
            Considering,that even if the aforementioned law
      is applicable to the matter from such point of view,
      it would be necessary for this alleged plagiarism to exist that
      the idea or method that Hurtado published as the original,
      had been the same in concept as before, and prior to the legal
      requirements for Pujals to acquire ownership, and that no one else
      before him had published it:
            Considering that three experts, two of them appointed
      by the appellant, and whose scientific appraisal was requested
      for submission at this point of the debate, they were asked
      questions raised by him, besides declaring that the development
      of his thoughts there is a substantial difference throughout each of

Chapter 1 Page 6

      They stated that in 1849 a Curso de lectura por un nuevo método
       (Course for reading using a new method) had been published
      in Figueras, which follows that of Pujals. Its authors
      explained they had successfully taught this for a period
      of six years, and that in 1846 the same procedure was also
      published in Paris accompanied by a Teacher’s Guide, which
      was said to be used for over 20 years in many schools.
            Considering the result of these statements, Pujals cannot
      uphold the originality of the idea he developed in his work,
      and that it was exclusively a product of his scientific research,
      nor that when Hurtado adopted it in the one he published later on,
      that he had committed the plagiarism he was being accused of;
            And considering that under neither of these two concepts,
      that is, neither as a reproduction of a work or someone else’s
      original writing nor as a reproduction of an idea or
      method that the appellant published earlier, have the
      sections mentioned above been infringed.
      The claim should be dismissed and, due to the vagueness and
      lack of expression,

Chapter 1 Page 7

      the claimed axiom that is also alleged in support of the appeal
      cannot be taken into consideration;
            We hereby rule that we should declare, and do declare,
      that there is no cause for the claim lodged by Mr. Vicente Pujals
      de la Bastida, who we order to pay the legal costs and the amount
      he provided as a guarantee be paid when possible;
      and the file shall be returned to the Court of Madrid with the
      corresponding certification.
            Therefore this is our judgment, which will be published
      in the Gazette and inserted in the legislative series (Colección legislativa),
      making available the necessary copies. We hereby declare, order and sign it
            Ramón López Vazquez – Sebastián González Nandín
            Antero de Encharri – Gabriel Ceruelo de Velasco
            Joaquín de Palma - Pedro Gómez de Hermosa
             Ventura de Colsa
             y Pando

Chapter 1 Page 8

                  Note: see page sixty and ..
                  of the Book
      Publication. The above decision was read
      and published by the Honourable, Mr Gabriel Ceruelo de Velasco
      magistrate of the Supreme Court, holding public hearing in
      Courtoom 1, today, which I, the Secretary reporting to this Court
      hereby certify.
      Madrid 4 December 1871
                                          Luis Caltraveño

Translation by: Kay Leach


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