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V.

HEARING OF THE CASE IN CASSATION

LITERARY PROPERTY OF THE STATE. -- STATE PRINTING HOUSE. -- PUBLIC DOMAIN.

Whether the prohibition of reproduction, contained in the Act of 24 January 1817, does only apply to works originating from private Authors, or also to State Acts and other public State Documents? -- decided in the negative, reversing the judgment of the Court of Gelderland of 12 March 1840, which upheld the decision of the District Court of Tiel of 13th February 1840 before.

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JUDGMENT

"The Supreme Court,
On the appeal of DIRK VAN HAREN NOMAN, according to his report, member of the Court of Zalt-Bommel and main interested party of the firm JOHANNES NOMAN AND SON, appellant in cassation of a judgment of the Provincial Court of Justice of Gelderland of 12 March 1840, in which this Court has completely upheld the judgment of the 13th of February 1840 by the District Court in Tiel, which has sentenced this appellant in respect of the crime of piracy of a Royal Decree, whereby the right to print is reserved by Royal Decree of 20 July 1822 for the purposes of the State Printing House;
Having heard the report of the justice OP DEN HOOFF;
Having heard the counsel of the appellant in the delivering and substantiation of his grounds of cassation;
Having heard the proc. gen. in his advisory opinion, to the effect of the reversal of the aforesaid judgment, and that the Supreme Court, further adjudicating on the merits, will discharge the appellant from further prosecution in this case;
Considering that the District Court in Tiel, with which decision the Provincial Court of Justice has joined completely, after in facto having accepted as proven that the Royal Decree of 30 November 1839, containing the Tariff of Judicial costs, which had been printed and published by the appellant in cassation, has declared applicable thereto the Act of 25 January 1817 and the Royal Decrees of 2 July and 30 July 1822, and has sentenced the appellant relating to piracy;
C. therefore, that there were pronounced penalties on account of the exclusive right to reproduce by print,

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which were to belong to the State, beforehand has to be investigated whether this right exists here, as, without the existence of this right, no infringement thereof is conceivable.
C. that, for this investigation, it is not necessary to answer the question whether, considered in the abstract, the State as corporate body can be held to be author of the Acts and Decrees published by them, and whether thus to the State as such could be given rights by law, but that one can entirely limit oneself to the confines of the cited Act of 25 January 1817;
C. however, that by law, apparent from the words to be found in the preamble, the rights are provided which can be exercised pertaining to the printing and publishing of literary and artistic works, and that therefore, except for that Act, there does not exist an exclusive copyright in print in the Netherlands;
C. that, in the already reported Act, authors, who are granted right, are to be taken to be specific persons, and in no way the State, and that therefore the legislator did not grant the State thereby an exclusive right of reproduction by print;
C. that this follows not only from the Royal Message, with which the Act has been submitted and whereby this is declared to be a an expression of goodwill towards the practitioners of literature and the arts, but also particularly from certain provisions of the Act itself, which cannot be made applicable to the State, and for which it is enough to invoke Art. 3, which limits the duration of the aforesaid copyright to 20 years after the death of the author or translator;
C. additionally that, in art. 6 of the Act, several requirements are enumerated which have to be complied with, following the emphatic declaration of the legislator, in order to be able to claim the already reported copyright by print, and this without making any differentiation between those by whom this right is claimed, and that there are present no signs

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that those requirements are fulfilled in the contested judgment;
C. with regard to the Royal Decrees of 2 and 30 July 1822, that these contain no new and entirely independent provisions regarding the rights relative to the printing and publishing of literary works, as on account of this, with those Decrees would have been infringed upon the power of the legislators, and in this, cases would have been reviewed which belong exclusively to the domain of the legislators, but that it should be considered in connection with the already reported Act of 25 January 1817, whereby that right was regulated;
C. that the government in these decrees, based on the assumption that in the reported Act the rights of ownership would have been granted to the State, has made provisions regarding those presumed rights as alleged owner, but that those provisions do not apply if the Act here has given no rights to the State, or the requirements to claim this have not been fulfilled, and there consequently exist no rights of ownership for them, considering the ground of these Decrees is invalidated;
C. therefore that in the contested judgement, the Act of 25 January has been violated partially and misapplied partially;
Reverses this judgment, and rendering judgement on the main issue under art. 105 of the Act on the Legal Order and Judicial Policy, reverses the judgment given by the District Court in Tiel, on 13th February 1840;
Declares that the committed act does result in nor crime, nor misdemeanour, nor violation, and discharges the accused, D. VAN HAREN NOMAN, of all prosecution in this case: the costs to be borne by the State."


Translation by: Miluska Kooij