Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: s_1880a

Commentary on Spanish Regulations of Copyright Law (1880)

José  Bellido (Birkbeck College, University of London)

Raquel Xalabarder (Universidad Oberta de Catalunya)

Ramón Casas Vallès (Universidad de Barcelona)

 
Please cite as:
Bellido, J., Xalabarder, R. & Casas Valles, R. (2011) ‘Commentary on Spanish Regulations of Copyright Law (1880)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 
1.   Full title
2.   Abstract
3.   From Law to Regulation

4.  The Time of the Commission

5.  International pressures

6.  Drafting struggles

7.  Devastating critiques 

8.  Regulatory impact

9.  References

 2. Abstract

Following the passing of the 1879 Copyright Law, the Spanish government established an extended regulatory framework in order to make the law effective. These regulations became as important as the law to which they referred since they eventually shaped its procedural set-up. As shall be explained, the deliberative process that brought these rules into being was not as simple as it may appear at first glance. Different factors made the Commission's task of preparing the draft of the regulations particularly difficult. For instance, international pressures concerning copyright and different contradicting interests began to affect the speed with which and manner in which the regulations would be drafted. This commentary aims to elucidate the workings of the Commission in order to explore not only how drafting practices evolved through different vicissitudes but also how controversies surrounding the enactment of the 1880 copyright regulations affected its outcome.  

 3.  From Law to Regulation    

The Copyright Law (1879) ends with a reference to further copyright rules to be drawn up in order to complete the legislative framework opened by the new statute.[1] This constituted a legislative demand for political activity. Consequently, the Spanish government was compelled to pass a regulation on copyright that could supplement and facilitate the “enforcement of the law”.[2] This development of copyright laws through administrative mechanisms was not new. In fact, if we were asked to single out one characteristic of Spanish copyright throughout the nineteenth century, it would probably be the systemic addiction to regulating copyright through public or administrative rules.[3] Indeed, the adherence to sustaining and developing copyright law through regulative measures is not only evident in the material in which it was frequently discussed (administrative textbooks) but it is also elucidated in matters of enforcement, in particular, in the absence of a private litigation culture. Administrative rules such as the 1880 regulations also exemplified the troubling tensions between regulative development and legal authority and between law and politics. Yet ironically, the tension occasionally led to these “secondary measures” becoming more important than their legal thresholds, at least, in practice.[4]

The main challenge of such a regulation was to develop a stable relation between law and practice. In one way or another, regulatory agendas had to manage, construct and shape detailed knowledge about detailed copyright practices without fracturing and contradicting the law. In fact, copyright regulations played an important role in managing the relationship between copyright practices and statutes. Instead of looking at principles and concepts, regulatory appendixes were supposed to focus on a more professionally orientated sensibility, in other words a “down-to earth” vision of copyright. In their procedural ethos, they served a purpose. They were conceived as devices to overcome or simply to narrow the “law–practice gap”. Furthermore, as they served as filtering adjustments, they offered the possibility that rights already delineated in the law could be registered and claimed.[5] Based on their crucial and on-going investment in reality, regulations became even more strategic and more problematic platforms upon which to generate consensus than the law. As we shall briefly note, the concrete path from copyright law (1879) to its regulations (1880) became a paradigmatic example of this difficult transition.

 4.  The Time of the Commission

Ultimately, the immediate adoption of a regulatory framework was considered to be fundamental to the future success of the copyright law. Therefore the same day that the law was promulgated, a commission was appointed to prepare a draft of the regulations.[6] Perhaps the most interesting aspect of the Commission was not only its timing and composition but the way in which forms of surveillance and regulation were initially considered to be part of the same task. The commission was divided into two different groups or sub-commissions.[7] While the first one of these was giving the task of writing a draft on theatrical regulations, the second dealt exclusively with copyright. Both were staffed by well-known politicians such as Víctor Balaguer (1824-1901) and Gaspar Núñez de Arce (1834-1903).[8] In the search for knowledge and consensus among the different actors involved in the field of copyright, musicians, writers and publishers were invited to voice their concerns about their professional activities.[9]

The consultation period had begun with a significantly efficient and optimistic impulse. However, ten months after that initial impetus and without even a draft having been completed, a sense of dissatisfaction and decline in expectations spread throughout the press.[10] With biting sarcasm, the daily El Imparcial brought attention to the issue on its front-page, making fun of the lengthy period the government had taken to pass the regulation.[11] Arguably the delay was not only caused intentionally by governmental bureaucrats. Despite the fact that the commissioners claimed not to have been concerned by such an initial public outcry,[12] the process by which they prepared the regulations had been profoundly affected by different contingencies. For example, the president of the Commission, López de Ayala (1828–1879) suddenly died.[13] Such an unfortunate event undoubtedly delayed the whole regulatory process.[14] He was replaced by Rodríguez Rubí (1817-1890),[15] a politician and dramatist who had been involved in the theatrical reforms that took place after the 1847 Literary Property Act.[16]

 5.  International pressures

Concerns about delays in the regulatory procedure also came from abroad. Since the 1879 copyright law had promised a new era of bilateral agreements,[17] Spain had began withdrawing from copyright conventions.[18] Her diplomats, impatient to receive direct governmental instructions to negotiate  new arrangements, sent several delegations to the Ministry of Foreign Affairs asking about the work of the commission. The Spanish diplomat in Italy enquired about the basis for the negotiation of bilateral treaties and how the forthcoming regulations could affect it.[19] Similarly, his colleague in Brussels asked about the extent to which the drafting of the regulations was going to be delayed or held back.[20] Moreover, he produced evidence (a catalogue of a Belgian printer) with which to convince the Ministry of Foreign Affairs of the urgent need to complete any copyright regulations currently being drafted in order to rearrange new Spanish bilateral arrangements.[21]

Here we can see how international anxieties suddenly affected the preparatory process of domestic regulations. In October 1879, after having received these diplomatic communications, both the Ministry of Foreign of Affairs and the Ministry of Public Works brought attention to the work of the commission.[22] They were forced to consider the way in which regulatory developments could affect their offices.   They highlighted that it was a “necessity and convenience” that the commission’s work be promptly concluded in order to avoid the dramatic consequences of the lack of international copyright agreements.[23]  Without bilateral agreements, Spain saw herself as exposed to the foreign printing of national works destined for the Spanish as well as the Latin American market.[24] The ministerial request was sent with an attachment of these diplomatic dispatches. It eventually succeeded in activating the commission’s work.

 6.  The struggles to draft the regulations

The commission faced considerable time constraints from the government  to produce a draft. Under pressure exerted by different ministerial departments, the urgency to reach a consensus among the commissioners shaped the drafting process.[25] Here we can note a series of distinctive contributions that facilitated the establishment of the regulations. Eduardo Medina, a famous publisher, began to put together a number of articles that could be considered to be the regulatory framework's first draft.[26] Núñez de Arce (1834–1903), a well-known poet, gave these clauses a literary “style”[27] and Mariano Andrés Domec (d. 1884), a civil servant from the Ministry of Public Works, acted as a research assistant.[28] The drafting process was a true collaborative effort. Several members of the commission became actively involved in voicing concerns and expressing their views on the work-in-progress without attempting to block it. For instance, detailed references to music  copyright  and the status of musical arrangements were provided by Francisco Asenjo Barbieri (1823-1894) and Vidal y Llimona (1844-1912),[29] composer and music publisher respectively.[30] Ironically, they would meet again few months later in a dispute over copyright law. In 1881, Barbieri would sue the music publisher for the ownership of his musical works.[31] 

Nevertheless, the most interesting issue that affected the commission concerned the intersection between copyright and contract and between property rights and their exploitation. It is not a surprise then that several topics were particularly problematic. The first issue attracting contradicting positions from commission members was the different ways in which copyright rules applied to the issue of collaborative works.[32] According to the commission, co-authorship in dramatic works required regulatory developments in order to solve any possible disagreement that might arise between co-authors regarding the exploitation of their works.[33] Whilst some commissioners saw here an opportunity for liability rules to provide reasonable compensation, others preferred to resolve the issue through strong and unilateral property rules which would block the use of the work.[34] As often happens, the more moderate solution left many commentators unsatisfied.[35] Additionally, mundane theatrical practices and their interaction with the division of rights produced in copyright received a great deal of attention. Not only did deliberations focus on the way in which dramatists submitted manuscripts to theatrical companies, but also on the manner in which dramatic copyright could be valued.[36] In order to link copyright to a regulative fixation of prices, the second controversial issue involved an agreement on theatrical tariffs.[37] As one would expect, different opinions emerged between those commissioners defending authorial interests and those lobbying and representing the views of publishers and theatrical impresarios.[38] Moreover, commissioners also disagreed on how to arrange transitional periods between previous copyright statutes.[39]

 7.  Devastating critiques   

In January 1880, the commission decided to conclude its preparatory work and submit the text for  final revision to the major expert on Spanish copyright law, Danvila y Collado, (1830-1906),[40] whose  treatise on copyright was  described in a newspaper as an “arsenal of knowledge” in the field.[41] It was at this moment, towards the end of the drafting procedure, when the future of the text almost collapsed. Danvila’s report was merciless and relentless.[42] His view of the drafting language was peppered with epithets such as “useless”; “vulgar”; “miserable”; “ridiculous” and “superfluous”.[43] He criticised the fact that the draft had to paraphrase the law without adding anything else, that is, without fulfilling its main task of developing or elaborating on the law. Furthermore, he suggested that some of those unnecessary cross-references had the extraordinary “ability” to change the original meaning and the purpose for which the 1879 copyright law had been designed.[44] He continued his devastating critique by fiercely arguing that several rules had surpassed the competence of the executive, thus affecting the powers reserved for the legislative powers.[45] According to Danvila, these regulatory developments had been drafted in such a manner that instead of developing the law, they were actually restricting it.[46] His disapproval was not only directed towards the drafting language; he also argued against the content included and the regulatory techniques used by the commissioners. For instance, he complained about the way in which the regulatory process had drafted the reversion scheme through which authors’ heirs would recall copyright. In so doing, he suggested that the only way to make the reversal feasible was to link it to an early inscription at the copyright register.[47] He also argued that rules regarding expert witnesses should have been addressed in different sections.[48]

At this point, it certainly seemed that the shocking report would threaten the drafting process. The future of the text was under threat. However, pressed by ministerial demands,[49] the commission took some of these criticisms on board and presented a final draft to the governmental advisory Council (Consejo de Estado).[50] We can see how the measures taken in order for the draft to succeed including the amendment of passages following Danvila’s observations as well as the removal of controversial provisions (e.g. the registration of artistic works).[51] In September 1880 the regulations were finally passed.[52] This was met with relief those involved after so many obstacles and disagreements.[53] The hard work and the effort of the commission were then officially recognised in a royal order issued several weeks later.[54]

 8.  Regulatory Impact 

While the law had devoted fifty seven articles to the establishment of the essential features of copyright, the regulations included twice as many articles.[55] In doing this, the commissioners aimed to establish a very particular pragmatism for the exercise and the recognition of the rights arising from the statute.[56] The regulations not only gave meaning to copyright formalities and prescriptions,[57] but also ensured that copyright could be made operative in a more concrete manner.[58] Firstly, they established a template of rules to determine authorship and ownership.[59] In other words, they established a range of presumptions and requirements that served to establish ownership in the absence of proof to the contrary.[60] That the regulative development focused on clarifying the complexities of evidencing copyright can be seen in a cursory glance at the regulations. Evidential marks such as signatures were linked to the possibility to adduce primary evidence of the authorial creation of a copyright work.[61] Secondly, regulations also provided non-exhaustive lists of the subject matter in copyright. If the law was purposively abstract in its reference to copyright’s subject matter, the regulations focused on a more medium-specific and more precise categorization of copyright. A paradigmatic example of this regulation by specification was the explicit mention of photography as a subject matter capable of attracting copyright.[62] Furthermore, the 1880 regulations focused on another important figure that had not been covered by the law, but was nevertheless fundamental for copyright to become practical: the copyright representative.[63] Giving copyright representatives the legal recognition to act and to enforce those rights they were upholding was also a sign of the purposive territorial extension and ambition that the regulations attempted to achieve.   

 Moreover, as the main source of evidence in copyright was the certificate awarded by the copyright registry, it is unsurprising that one of the most thoroughly regulated aspects of the copyright rules was not only this piece of paper (the certificate) but also the specific governmental office from which it emanated. While the 1879 copyright law had mentioned the ministerial department upon which the registry was going to be hierarchically dependent, regulations focused on its instruments and infrastructure.[64] Despite the dull and technical tone or content of these articles, they were undoubtedly the most important ones for the monitoring of everyday activities regarding copyright transactions.[65] In fact, the registry was converted into a crucial institution that made property rights far more visible and manageable.[66] The office was viewed as the place in which copyright could become an asset subjected to financial transactions such as mortgages.[67] Moreover, the act of registration was considered fundamental since - according to some scholars -, “the right of property [was] derived from the prior inscription and its subsequent registration”.[68] Copyright regulations gave instructions on the design of the book register and the order of registrations.[69] Inscriptions were to follow a strict chronological order and each registration had to contain a special sheet on which vicissitudes and transactions of the intangible were to be duly recorded.[70] There were also specific rules to control the interaction between provincial and central registries and for the publication of registered entries in the official Spanish gazette (Gaceta de Madrid).[71]

 9.  References

Archival sources

BNE. Biblioteca Nacional, Madrid, Spain- Legado Barbieri.

 Bibliography

 Álvarez Mariño, J. Proyecto de Reglamento de Policía Teatral (Madrid, Establecimiento Tipográfico Montoya, 1882)

Ansorena, L. Tratado de Propiedad Intelectual en España (Madrid, Sáenz de Jubera, 1911)

Cantero García, V. “Tomás Rodríguez Rubí y el drama histórico de intención política: Estudio y consideraciones sobre un subgénero dramático de claro alcance social”, Cuadernos de Investigación Filológica, XXVII-XXVIII (2001-2002), pp. 157-184

Casares Rodicio, E. Francisco Asenjo Barbieri: El Hombre y el Creador (Madrid, ICCMU, Sociedad General de Autores de España, 1994)

Castillo y Soriano, J. del, Manual Legislativo de Propiedad Literaria y Artística  (Madrid. M. Romero, 1901)

Danvila y Collado, M. La propiedad intelectual.  Legislación española y extranjera comentada, concordada (Imprenta de la Correspondencia de España, 1882)

García Llansó, A. Manual de Propiedad Literaria (Barcelona, Tipografía de Luis Tasso, 1901)

García Mallo, MC. “Peters y España: edición musical y relaciones comerciales entre 1868 y 1892” Anuario Musical, 60 (2005) pp. 115-167

García Martin, J. “De la apropiación penal a la propiedad literaria. Sobre los orígenes del derecho de propiedad intelectual (siglos XVIII-XIX)” Revista de la Facultad de Derecho de la Universidad Complutense.-Madrid.- n. 93 (2000), pp. 105-149.

Soto y Hernández, A. Manual de Propiedad Literaria, Artística y Dramática (Madrid, Centro Editorial Góngora, 1902) at xv.

Veintimilla Bonet, A. El clarinetista Antonio Romero y Andía (Oviedo: Universidad de Oviedo, Departamento de Historia del Arte y Musicología, tesis doctoral, 2002)

Vidal y Llimona, A. “La Propiedad Intelectual” Crónica de la Música, n. 191, May, 1882, pp. 1-2.

Vidal y Llimona, A. “Circular” Crónica de la Música, n. 143, June 1881, p. 3.