Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: s_1879

Commentary on "Spanish Copyright Law (1879)"

José Bellido (Birkbeck College, University of London) 

Raquel Xalabarder (Universidad Oberta de Catalunya) 

Ramón Casas Vallés (Universidad de Barcelona)

Please cite as:
Bellido, J., Xalabarder, R. & Casas Vallés, R. (2011) ‘Commentary on Spanish Copyright Law (1879)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 
1. Full title
2. Abstract
3.  Petitions and Support   

4.  Signature and Context of the Ley de Propiedad Intelectual  (1879)   

5.  Notes on the Title (“Intellectual Property”)

6.  Instituting Property     

7.  Futures of the Law

8.  References

1. Full title

Spanish Copyright Law (1879)

Full title original language

Ley de Propiedad Intelectual (1879)

2. Abstract

Modern Spanish copyright law is based on the crucial enactment of the 1879 copyright law. This act was the most important legislative event in the history of Spanish copyright historiography. Not only was it comprehensive and modern for its time; its importance and credit were acquired over a long period, as it lasted for more than one century.

The commentary discusses the atmosphere of the making of the law and the parliamentary debates over the nature of copyright, and engages with the different legal innovations developed in the law. That is, it explores the ways in which the law thought about copyright. Finally the impact of the law in international copyright is assessed. 

 3.  Petitions and Support 

An initiative, converted into a project moving through the Spanish bicameral parliament, and finally: a copyright law. Not only was the outcome a law, but it became the most important Spanish copyright law ever. The original legislative proposal was submitted to the Spanish Congress on November 1876,[1]  and it took more than two years of delayed discussions to culminate in what we know today as the 1879 Spanish copyright law.

 The proposal was authored by one of the most active deputies of the time,[2]  the jurist Manuel Dánvila y Collado (1830-1906). [3] He prepared a document that was signed by several prestigious people of different political tendencies. With the co-ordination of support to the copyright proposal, Dánvila evidenced remarkable personal and political skills. Those skills are best seen when we follow his steps retrospectively. His main achievement lay in obtaining the most important loyalty for the support of any legislative initiative: the press.[4]  Translating ideas into a coherent document was difficult; lining up deputies of different political tendencies was also complex, but these activities were facilitated when a lobby such as the newspaper La Época pressed the need for copyright reform.[5]  If we have a look at the weeks before the lodging of the petition, we can read Dánvila in that newspaper preaching in favour of copyright law.[6] And then in the days and months that followed, we can see the same newspaper consistently advocating for copyright.[7]  The support invariably continued throughout all the legislative milestones until the law was definitively passed.[8] The role of the newspaper was not only to advocate for copyright but also and, more importantly, to maintain the parliamentary interest in the issue and help to ensure that it was not forgotten.[9] It directly appealed to the lawmaker to produce what was labelled by the newspaper as the “unavoidable” copyright reform.[10] Since the press was such an important forum for discussing the law,[11] the most valuable signature Dánvila obtained in support of the copyright proposal was that of Ignacio José Escobar (1866-1896), proprietor and editor of the conservative newspaper, La Época. [12]  

When conservative newspapers decided to campaign for the proposal, their liberal counterparts began to challenge it. Almost simultaneously with the moment in which the proposal was lodged, we can see copyright as the topic discussed daily in the pages of another – now liberal- newspaper, El Imparcial. The liberal inquiry emphasised the societal interest in copyright. Attacks were oriented towards the very basis of the proposal: copyright – it was said - was not to be perpetual. And the image of copyright which liberals demanded was also different.[13] If conservatives appealed to the nation as their impetus for proposing an absolute and strong perpetual copyright, liberals tended to look at comparative law to advocate for limitations to copyright.[14] The government found a compromise between the two polar opposites and following a meeting with two ministers, the Commission already appointed by the Congress retraced and modified the legislative proposal.[15]  This was now a proposition for copyright to last for a limited term: eighty years after the death of the author. After an easy debate at the Congress, the bill moved to the Senate.

4.  Signature and Context of the Ley de Propiedad Intelectual   (1879)  

The bill sat in the Senate for almost two years. While Danvila’s skills proved influential before the Congress, they did not work in the upper house. When the moment of reading arrived, the bill was caught up in a true and thorough debate. Conflicting views clashed, and opposition concentrated on the scope of the law. So the debate rapidly focused on the recognition of the would-be subjects of copyright law. There were those who advocated for a true law of author’s rights and did not understand why publishers could become subjects of copyright through, for example, the publication of public domain works, [16] activities that were considered far from the true spirit they fostered in the law.

More interesting than the arguments themselves were the evocative references used to ground them. To a great extent, they reflected a context permeated by international influences. And the international framework was so eye-catching that this could provide an explanation for the delay the bill experienced at the Senate. During the two-year period the bill had been frozen waiting for a second parliamentary reading, a request had been sent from the Senate Librarian to the Spanish Ambassador in Paris, Mariano Roca de Togores, Marquis of Molins (1812- 1889). The request concerned information regarding the 1878 literary congress organised under the auspices of the Société de Gens de Lettres. And it was because the Commission at the Senate was urged to deal with copyright that it decided “to wait and see” what was discussed in Paris before preparing a final draft of the bill.[17] The Spanish diplomat in Paris busied himself and took the request very seriously. His response was a full dispatch containing the minutes and publications about the famous congress. Such tiny detail is often overlooked by historians, but it was significant, especially when we observe that at the Senate, debates were peppered with signs of explicit engagement with the conclusions of the literary congress.[18] It shows a hidden intersection, a cross-over and a spillage between national and international views of copyright.

 5.  Notes on the Title (“Intellectual Property”)

The legislative proposal at the Congress had begun with a direct reference to the term “property”, bringing initial discussions on the nature of copyright. Attention was obviously paid to its difficult analogy to land.[19] When the bill moved to the Senate, the debate also shifted its focus and it was now trapped in the appropriateness of the expression to be coined (intellectual property). Some deputies expressed a sense of discomfort with the linguistic innovation introduced, because Spain was going to be the first country to use the expression “intellectual property” as a general frame for the designation of the law of copyright. Emilio Alcalá Galiano, Count of Casa-Valencia (1831-1914), drew the House’s attention to that particular detail, and argued for the respect of what he considered to be a more traditional manner for the designation of the subject matter of copyright in Spain. In a smart rhetorical tactic, he used the slip of the tongue committed by the president of the Senate to support a traditional expression: literary property.[20] The president of the Senate had announced the subject of discussion as the law of literary property instead of the law of intellectual property. Nevertheless, other speakers persuasively defended the notion that the innovation was justified and that copyright should be extended to different subject areas such as sculptures, architectural works and paintings.[21]  And, despite an avalanche of academic criticisms, [22]  they did succeed and the copyright law was finally entitled the “law of intellectual property”. 

  6.  Instituting Property     

If we move on from the context to the text, we may say that the most important feature of the act was the duration of copyright. As we have highlighted, perpetual copyright was doomed. But the length granted to copyright was still significant. The eighty years life-plus duration showed a “compromise” among political tendencies. And it was structured in a very creative manner. It included a reversion provision through which authors’ heirs could recapture copyright.[23]  When the bill was read at the Senate, the lawmakers decided that there was a need to "reconcile the legitimate interests of the author during his life and the consideration owed to his family". Copyright was then thought to be trapped between the author, the family and the market. As a result of this three dimensional constraint, the possibility of alienating copyright without restrictions was supplemented with a reversion right, originally conceived as a protective measure for the family of the author. Broadly speaking, it was a legal intervention, a property reserve, in order to control the future exploitation of copyright. The copyright term could become, in purity, a 55 plus 25 (80 years), and a period of time owned by different individuals in case there were heirs. Such a scheme was truly original, but as we shall see, provoked many practical difficulties in Spain. The mechanics of the law of succession were affected. And it also complicated Spanish copyright relations abroad. Precisely at the end of nineteenth century, when copyright was internationalised, it constituted an obstacle to the Spanish diplomats attempting to negotiate bilateral copyright treaties on the basis of reciprocity.

The existence or the exercise of copyright was also contingent upon formal requirements.  The second most important aspect of the law was certainly the establishment of a complex system of copyright registration.[24]  The Registry was stressed as a fundamental institution in copyright. However difficult that aspiration was, the idea of a copyright Registry united both liberals and conservatives. A general Registry would help to produce a national idea of copyright. If copyright had always had trouble in being respected throughout the whole Spanish territory, the institution of a Registry was an appropriate measure with which to extend an awareness of the law. For registration to produce this idea, in addition to the general Registry, provincial copyright registries were envisioned. [25] And in order to avoid registries becoming too politicised, the task of registering would be assigned to low profile bureaucrats: civil servants. Not only would that world of bureaucratic infrastructure be created throughout the whole Spanish territory, establishing a copyright Registry would also have consequences upon the modalities of the intangible property at stake. It would offer scope to shape and to produce different effects upon copyright. It would open the possibility of forfeiture and other forms of property prescription. [26] And in so doing, at the mundane level, it would facilitate opportunities for works to enter into the public domain. Other registry schemes were established to force authors and proprietors to publish and to re-publish their works. In fact, the lack of publishing activity and the absence of response to the notices sent by the copyright Registry would also have the consequence of their property falling into the common pool.[27] By establishing a set of threatening regulations against the person defaulting, the law of copyright was not only imagined as a protective instrument but also as a productive legal mechanism. And despite the fact that the law also protected unpublished works,[28] the Registry hoped for copyright to become an encouraging device for proprietors to publish their works.

A third key issue that permeated the debate at the Senate and the final draft of the bill was its international projection. This consisted of two different streams. First, the Spanish legislator was conscious of the need to establish international relations,[29]  and the bill provided the basis for those agreements to be negotiated. [30]  And secondly, the law resolved the tricky issue of extending itself to colonial territories. So far nineteenth century Spanish copyright had been characterised by an uncertainty surrounding the applicability of metropolitan copyright laws to Cuba, Puerto Rico and the Philippines. The uncertainty was generated by the lack of explicit provisions in metropolitan copyright laws as to extension or not of the law. The new law made that extension clear. [31]  

 7.  Futures of the Law

The law was finally passed on January 10, 1879.[32] Modern commentators highlight its importance.[33] Even when they criticise it, they cannot deny its historical superiority. It produced a strong and complicated future since it endured for more than one century. Nevertheless, we are more interested here to appreciate the immediate international reception of the law. Just after its enactment, it was widely praised as one of the most advanced copyright laws in the world.[34] And this praise came from very specific points. If the Spanish law found inspiration in the 1878 congress in Paris where the Association Littéraire et Artistique Internationale (ALAI) was founded, six months after its promulgation, the compliment was returned. The ALAI congress in London in June 1879 honoured the Spanish copyright law as a model to follow.[35] Therefore, it is no surprise that the Spanish law became part of the material that influenced the drawing up of the text of the Berne Convention (1886). [36]  

 8.  References

Archival sources

 Archivo del Senado (AS); “Proposición de ley sobre propiedad literaria”, his-0897-01

 Archivo del Congreso (AC)

Bibliographical sources

Azcaìrate G. de, Ensayo sobre la historia del derecho de propiedad, Tomo II (Madrid: Imprenta de la Revista de Legislación, 1879)

 Baltar Rojo, J. “Castelao y la Ley de Propiedad Intelectual de 1879: un curioso incidente legal” Boletín de la ANABAD, vol. 29, 1979, pp. 95-105

 Bastide, L. L’ Union Berne de 1886 et la Protection Internationale (Paris: A. Giard, 1890)

 Bercovitz, A. “The Relationship between the BerneConvention and Intellectual Property Law in Spain” Copyright, October 1986, pp. 345-351.

 Clunet, E. Etude sur la convention d'Union internationale pour la protection des oeuvres littéraires et artistiques, suivie du texte del'avant-projet de la Conférence de Berne de 1883.. (Paris: Marchal et Billard, 1887)

 Dánvila y Collado, M., La Propiedad Intelectual (Madrid: Imprenta de la Correspondencia de España, 1882)

 Marco Molina, J. La propiedad intelectual en la legislación española (Madrid: Marcial Pons, 1995)

 Memoria de los Actos y Tareas de la Asociación de Escritores y Artistas Españoles durante el año 1878 (Madrid: Viuda e Hijos de M. Tello, 1879)

 Memoria de los Actos y Tareas de la Asociación de Escritores y Artistas Españoles durante el año 1879 (Madrid: Viuda e Hijos de M. Tello, 1880)