Bilateral Treaty between Austria and Sardinia, Vienna (1840)

Source: Wienbibliothek Sign: B 103976

Citation:
Bilateral Treaty between Austria and Sardinia, Vienna (1840), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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16 translated pages

Chapter 1 Page 1



T      R      E      A      T      Y

between

His Majesty,
THE EMPEROR OF AUSTRIA


and

His Majesty,
THE KING OF SARDINIA


for
the safeguarding of property rights
with regard to the
literary and artistic works that
appear in their respective States.

Concluded
in Vienna, on 22 May 1840,
and mutually ratified in the same city,
on 10 June 1840.

[Habsburg
Imperial
insignia]

Vienna, 1840.
[published] at the Imperial and Royal Court and State Printing Office.




Chapter 1 Page 2


WE, FERDINAND THE FIRST,

by Divine Grace Emperor of Austria,
King of Hungary and Bohemia as [Ferdinand] the Fifth;
King of Lombardy-Venetia, Dalmatia, Croatia, Sla-
vonia, Galicia, Lodomeria and Illyria etc; Arch-
duke of Austria; Duke of Lorraine, Salzburg, Styria,
Carinthia and Carniola, Upper and Lower Si-
lesia; Grand Prince of Transylvania; Margrave of Mora-
via; Princely Count of Habsburg and of the Tyrol etc.





To all and sundry whom this concerns, we
make it known and aver by the tenor of the present:
      After We and the Plenipotentiary Envoy of His Serenity,
the King of Sardinia, have on the 22nd of May of this year


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entered in Vienna into a special Convention whose purpose it is
to publicly protect and mutually safeguard the property of Our
respective subjects with regard to products of letters and the arts,
the following was signed as the tenor [of this Convention]


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His Majesty the Emperor of Austria
and His Majesty the King of Sardinia,
both inspired by the same wish to foster
and protect the sciences and the arts
and, not least, to encourage useful
enterprises, have decided in mutual
agreement to guarantee writers and
artists the lifetime right of ownership
to those works of theirs which appear
in either or both of these States, and to
establish the period during which their
heirs are to enjoy this protection, by
determining for this purpose the most
effective means of preventing reprinting
and any other kind of mechanical
reproduction.
      Accordingly, Their Majesties have
appointed their plenipotentiaries as follows:
      His Majesty the Emperor of Austria
has named His Highness Prince Clemens Wenzel
Lothar of Metternich-Winneburg, Duke of
Portella, Count of Königswarth, Grandee
of Spain of the first rank, Knight of the Golden
Fleece, Bearer of the Grand-Cross of the St
Stephan Order of the Kingdom of Hungary and the
Distinction for Civil Service, Knight of the high
Order of the Annunciation etc., Chamberlain, Privy


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Councillor of His Imperial and Royal Apostolical Majesty,
Minister of State and Counsel to His Majesty,
Chancellor of His Imperial Household and Court,
Chancellor of State etc., and




His Majesty the King of Sardinia
has named Don Victor Amadeus Balbo-Ber-
tone, Count of Sambuy, Knight and Grand-
Cross-bearer of the Order of Sts Maurice and
Lazarus and of the Imperial Austrian Order of
Leopold, Major-general in the royal armies
and His Majesty’s Envoy Extraordinary and
Minister Plenipotentiary to the Court of His
Imperial and Royal Apostolical Majesty etc., who after
setting forth their full powers which have been
found to be in due form, have come to an agreement
about the following articles:


Article 1.

      The works or products of the human
intellect or of art which are made public in
either of the signatory States constitute
a property to which the authors
or creators of these are entitled and which they
may enjoy for life or otherwise
dispose of. Only they, or their legal
successors, have the right to permit
publication of these works.

Article 2.

      Works of the dramatic art are
also a property of their authors, and



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with regard to their publication and
replication are therefore included in the
stipulations of Article 1. Dramatic works
may not be performed without the
permission of their authors or that of their
legal successors, without prejudice, though,
to the measures regarding the public performances
of stage works currently in force or still to be
enacted in the respective States.

Article 3.

      Translations undertaken in either of the
signatory States of manuscripts or
works which have been published in a foreign
language outside the territory of these States,
are also considered as original works, to which
Article 1 is applicable. Translations undertaken
in one of the signatory States of works which have
appeared in the other are also included in Article 1.
Excepted from this is the case when an
author who is a subject of one of the signatory States
makes known in the work he has published that he himself
intends to arrange for a translation to appear in
either of these States, provided that he actually
does carry out this intention within the space of six
months, in which case he also retains his right of
ownership to this translation.

Article 4.

      The stipulations set forth in Article 1
notwithstanding, newspapers and



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periodicals are free to reprint articles that
have appeared in other newspapers or periodicals,
provided that these articles do not exceed
three printed-sheets of their first publication
and that their source is indicated.

Article 5.

      In the case of anonymous and pseudonymous works
the publishers of these are to be treated as their
authors until the actual authors themselves, or
their legal successors, have demonstrated their
own right to them.

Article 6.

      Any replication (reprinting) of literary
or artistic products, of musical and
dramatic compositions, as named in
Articles 1, 2 and 3, is
forbidden in both signatory States.

Article 7.

      Replication (Reprinting) is the
act by which a work, be it in
its entirety or in its separate parts, is
reproduced by mechanical means without the
permission of the author or his
legal successors.

Article 8.

      A reprint in the sense of the preceding
Article is deemed to have occurred not just
where there is a perfect likeness between the
original work and its reproduction, but,
rather, when under the same, or also a
different, title the same subject-matter
is presented in the same sequence of ideas and




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in the same arrangement.
      In this case the later work is to
be treated as a reprint, even if it has
been expanded or abridged considerably.

Article 9.

      Arrangements for different instruments,
transpositions and other adaptations
of musical compositions, as long as they can
be considered independent products of the human
intellect in their own right, are not to be
treated as reprints.

Article 10.

      As far as reprinting is concerned, any
article of an encyclopaedic or periodical
work which is longer than three printed-
sheets is to be treated as an independent
work in its own right.

Article 11.

      The author of a literary or
scholarly work is entitled to prevent
the usurpation of the title he has
chosen, if this usurpation could
mislead the public as to the identity of
the work. In such a case, however,
no actual reprinting has occurred and the author
only has the right to a compensation that
is appropriate for the damage suffered.

      This notwithstanding, the choice of a
general title such as “Dictionary”,
“Treatise”, or “Commentary”, and the
division of a work according to



Chapter 1 Page 9


alphabetical order do not vest the author
with the right to prevent someone else from
treating the same subject under the same title
and using the same division.

Article 12.

      Copper engravings, lithographic prints, medals,
and also plastic works and models are covered
by the legal protection given in Article 1 to works of art
in general. The reproduction of these
objects is thus forbidden. In this case, though,
reproduction is defined as taking place only when
it is carried out using the same mechanical means as
were employed for the original work and when the
same proportions as the original are retained.
      Paintings, works of sculpture, and drawings
are also included in the stipulations of
Article 1. However, free-hand copies
of these works of art which are made without
any attempt at concealment and without any
objection from their owners, shall not be taken
to constitute illegal reproductions,
unless the copyist had sought with malicious
intent to mislead the public as to the copy’s
identity with the original work.

Article 13.

      The authors of drawings,
paintings, works of sculpture and other fine
arts, or their legal successors, can, without
losing their right of ownership to these works,
cede to others their exclusive right to
reproduce them by means of engraving,



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casting, or any other mechanical method,
without detriment, though, to the
stipulations of the preceding Article. If,
however, they sell the original work, then this
right passes to the purchaser who may
exert it for as long as the artist or
his heirs would have been entitled to make use
of it, except where the contrary
has been explicitly stipulated beforehand.

Article 14.

      The present treaty is not meant
to prevent those works which were published
in the respective States before its coming
into force from being freely reproduced, as long
as this reproduction has already been
initiated and received legal permission.
      If, however, part of a work has appeared
before the validation of this treaty
and another part appears afterwards, the
reproduction of this later part may only
be undertaken with permission of the author or his
legal successors, although these are
obliged to sell the sequels of the work to the [publishers]
of the earlier parts, without being entitled to force
them to retrospectively purchase those volumes
that were already in their possession.



Chapter 1 Page 11



Article 15.

      Those persons to whose detriment
a reprint has taken place are entitled to
compensation for the damage suffered thereby.

Article 16.

      In addition to the punishments against
reprinting that are laid down in the laws of
the signatory States, confiscation and
destruction of the copies or replicas,
as well as of any moulds,
impressions, plates, engraved stones and other
objects which have been used to
carry out the reproduction, will be imposed. In any
case the injured party can demand that these
objects be wholly or partly handed over to him,
whereby their value will then be deduced from his
compensation claim.

Article 17.

      In both States the sale of reproduced works is
completely forbidden on pain of the consequences
threatened in the preceding Article, which will
also apply in such cases where the reproduction
has been carried out abroad.

Article 18.

      The right of authors and their legal
transferees passes on to their legal or testamentary
heirs in accordance with the established laws of
the respective States. This right, however, can
never fall to the Treasury by way of inheritance
and is to be recognized and protected for thirty
years after the author’s death in the signatory
States.



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Article 19.

      For works which appear after the death
of their author this term is extended to forty
years from the date of their publication.

Article 20.

      For works which are published by scholarly
institutions or literary societies this term
is extended to fifty years.

Article 21.

      In the case of works which are published
in several volumes and of those which are
published in separate instalments, the abovementioned
three terms will be calculated for the whole work with
effect from the date of publication of the last volume
or the last instalment, provided, though,
that not more than three years have passed between
each of the part publications.
      In the case of collections of several individual
works or memoirs, the abovementioned
terms will be calculated with effect only from the date
of publication of each individual volume, though without
detriment to what was specified in the first paragraph
of the present Article in the eventuality
that the work or the memoir which
forms part of the whole collection is itself divided
into several individual volumes.

Article 22.

      For works whose publication is begun by
the author and completed by his heirs


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the term of forty years will hold,
as in the case of completely posthumous works.

Article 23.

      If the author were to die before
expiry of the time period for which he
may have happened to cede his rights, his
heirs are entitled, after expiry of this period, to
exert these rights during the whole term which
is granted to them by the preceding Articles.

Article 24.

      After expiry of the terms specified in
Articles 18, 19, 20, 21 and 22, works of
scholarship and art become public property.
      The official documents published by
the signatory governments themselves, as well
as any works which are published by them directly or
by their order, if this fact is clear
from the work itself, are in future also
to be treated according to the stipulations
which apply for such cases in the respective
states.

Article 25.

      In order to facilitate the implementation
of the present treaty, the signatory
governments will make known to each other the
laws and directives which they may happen to
enact regarding literary and artistic property.
They will, moreover,


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communicate to each other the measures
taken by either of them to determine the
originality of an edition or the time-
priority of a work of art.

Article 26.

      The stipulations of the present treaty
are in no way meant to divert from the
implementation of the existing censorship and
other prohibition measures in place in the
signatory States, which, irrespective of the
clauses laid down here, are to continue being
in force according to the respective
countries’ existing decrees or those that
are issued in future.

Article 27.

      Both signatory States will invite
the other Italian governments and that of
the canton of Ticino (Tessin) to accede to
the present treaty. Their expression of
assent will in itself be sufficient for
them to be considered co-signatory parties
to this treaty.

Article 28.

      The present convention is to come into
effect for four years from the moment the
ratifications are exchanged, and will remain
so for six months after expiry of these four
years should one of the signatories then make
known its intention either to annul the effect
of the given treaty or to proceed to its renewal
taking into account those improvements which
experience will by then



Chapter 1 Page 15


have suggested. Each of the two signatory
States reserves the right to make such
a declaration to the other, and herewith it is
agreed between both signatories that, after expiry of
six months after the one signatory has handed over
to the other this declaration, the present treaty and all
therein contained stipulations will cease to be
in effect.

Article 29

      The present treaty is to be ratified by Their
Majesties and the exchange of ratifications
shall be accomplished within four weeks or
earlier if possible.


      In witness whereof both plenipotentiaries have
signed this document and set their seals to it.
      Done at Vienna, 22 May 1840.

METTERNICH.                        DE SAMBUY.

(seal)                              (seal)



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Having seen and examined all and sundry of the articles
of this Treaty, We confirm that they are all valid and
appropriate, pledging ourselves by Our Imperial and Royal
word that We are obliged to faithfully carry out all
that is contained in them. In proof of which, and for
greater strength, We have signed by Our own hand these
pages of the ratification and have ordered that this be
confirmed by the impression of OUr Imperial and Royal seal.
      These were issued in Our Imperial Austrian city of
Vienna, on the 5th of June 1840, the sixth year of Our
Reigns.

      FERDINANDUS.

                                                Metternich.


(place of the seal)            At the personal behest of His
                                          Holy Imperial and Royal
                                          Apostolic Majesty,

                                    Franz von Lebzeltern-Collenbach.


Translation by: Luis Sundkvist

    

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