Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: s_1895

Commentary on ‘Commentary on Núñez de Arce’s Will (1895)”

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 Vallès, R. (2011) ‘Commentary on Núñez de Arce’s Will (1895)” in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 
1. Full title

2. Abstract

3.  Life & Death of Gaspar Núñez de Arce

4.  Copyright on the Death of the Author

5.  The structure of the Will

6.  References

1. Full title

Núñez de Arce’s Will (1895)

 Full title original language

Testamento de Núñez de Arce (1895)

2. Abstract

Focusing on Núñez de Arce’s will, the testamentary will of one of the most important modern Spanish writers, the commentary explores a typical way of transmitting copyright at the end of nineteenth century. It provides a snapshot of the circumstances under which the making of the will took place, the structure of the document itself and features several of the rituals embedded in that specific type of copyright transaction.

 3.  Life & Death of Gaspar Núñez de Arce

Gaspar Núñez de Arce (1834-1904) was one of the greatest Spanish poets of the nineteenth century.[1] He was also a key figure in the Spanish public sphere, having different roles such as colonial minister [2]  honorary senator[3] and deputy in the Congress.[4] Throughout his career he also displayed an unusual interest in copyright as a political and legal issue. Of the well-known participants in the Spanish political arena at the time, we could say that Núñez de Arce became, together with Manuel Danvila y Collado (1830-1906), one of the two main politicians interested in the recognition and defence of copyright. Whereas Danvila y Collado worked his influence producing copyright bills and doctrinal treatises, Núñez de Arce’s strategic actions in defence of copyright were not so visible. However, and behind the scenes, he signed petitions and used his lobbying influence in many different ways. For example, he sent the letter to the Spanish Peace commission that negotiated the armistice with the United States (1898) for copyright to be included in the Peace Treaty. Moreover, he facilitated bilateral copyright negotiations such as the one with El Salvador (1884) and, more crucially, he signed the petition for the law of copyright in 1876, the bill that was converted afterwards into the 1879 copyright law.[5]  He also contributed to the drafting of the 1880 copyright regulations.[6] Núñez de Arce’s interest in copyright increased during his tenure of the presidency at the Asociación de Escritores y Artistas,[7]  a period of time in which the Spanish association jointly organised a copyright congress  in Madrid (1887) with the Association Litteraire et Artistique Internationale (ALAI).[8]  

When Núñez de Arce died, the obituaries focused on his literary and political career.[9] Most of his biographers also tended to emphasise his poetic and prudent character.[10] And it was right to do so. However, we are interested here in looking at one tiny episode in his intense life. Instead of studying his relentless political career in defence of copyright, we prefer to narrow our attention to a particular transaction he engaged in at the end of his life. We have chosen his will as a document that enables us to see the different ways of transmitting copyright at the end of nineteenth century. If Núñez de Arce always battled publicly for copyright to be recognised, his will offers a particular perspective as to the way in which he regulated the future of the copyright on the literary works he still owned.

Not by chance, modern copyright laws tend to avoid the focus on final family attachments and copyright distribution upon death. As we all know, only a few generations acquire the possibility of becoming proprietors if the author has not yet transferred his property. That unlikely legal effect could explain why research sensibilities have not been directed towards copyright transmission through inheritance lines and have focused attention on the fact of the death of the author as a simple mechanical issue (“pma”). Nevertheless, the historical connection between copyright and patterns of succession is richer than it could appear at this very first glance. As we have seen, the Spanish Copyright Law (1879) contained an imaginative mechanism for securing copyright after the death of the author in the form of a reversal right. 25 years after his death, heirs could recapture copyright if the father had transferred it completely.[11] They would then enjoy it for 55 years more. Just as the reversal displayed a possibility for family interests and copyright to come together through the operation of law, testamentary wills of copyright proprietors also tended to reveal dispositions and allow distribution of copyright in their own family circles. Hence there is no better story to illustrate this second and hardly perceived link between family and copyright than the making of a particular will, the will of Gaspar Núñez de Arce. 

4.  Copyright after the Death of the Author

The twentieth of June was a bright and lovely Saturday, surely a typical day during the summer of 1895 in Madrid. It was not so ordinary for Gaspar Núñez de Arce and his wife, Isidora Franco. For them it would have been one of those life-moments in which you happen to realise that death is ever present. And that was the case because they had decided to make their respective wills. We will never know why they had chosen that date, but their decision could have been influenced by recent deaths in the family. So after more than three decades of marriage, they decided to visit the notary. Being a weekend did not stop them from becoming testators since the notary who was producing the documents was one of their friends and a neighbour. His office was just around the corner so it took them less than five minutes to get there: a short walk from their home.

At the office, their wishes were about to be written down. Gaspar Núñez de Arce was the first to make the will; Isidora did so later. The order of wills is often understood as an illustration of power relations within the family itself. Such order may also have a more banal and naïve explanation, the one derived from a question inscribed in all marriages:  who will die first? Probably, as it happened, the first to make a will had to be the oldest, that is, Núñez de Arce. Nevertheless, there are some signs in the will that show the peculiar subordination of the wife to the husband. And this subordination affected all kinds of property, including copyright.

 5. The Structure of the Will

Making a will is an event. It is also a moment of autobiographical reflection, for it constitutes an instant of self-representation. Whereas it is produced in a very specific moment of someone’s life, it is simultaneously made for posterity: it is made in order to be read. In many different ways, the will is a document which is both private and public. Particularly in the context of the death of an author, for those who are close to him, it is a painful and necessary reading in order to activate the mechanisms of inheritance. From a mechanical perspective, the death (and not the will) is the enabling feature that activates the clock of the copyright term. If the death concerns an author such as Gaspar Núñez de Arce, it may also involve changes in the flow of copyright ownership. The will is only relevant in cases where the author has retained the ownership of his or her works. More specifically, while the death of the author is a mechanism through which modern copyright laws have structured their way of specifying the term of copyright, the will may be significant only when the author has kept the property.

The first and most obvious consequence of the will might be that it may pinpoint the ways in which the ownership of the copyright could change at the time of his or her death. It would then be a copyright transmission mortis causa. And that was the case here: Núñez de Arce left a creative disposition for the distribution of copyright over his literary works at his death. Nevertheless, Núñez de Arce’s will was not so difficult to draw up after all. Throughout the nineteenth century, notarial activity was used to produce a variety of copyright dealings.[12] Notaries became even more used to doing this type of inclusions after copyright regulations (1880) required copyright transactions to be made on a public document.[13]

 The will finally produced by Núñez de Arce ran to seven pages. The preamble contained a common Catholic statement and the body was structured around six different parts. The one that interests us here is the provision for the widow. Not only was this the most substantial and elaborated stipulation, but it was also the one concerning copyright. In bequeathing his estate to his wife, Núñez de Arce disposed of a very specific form of holding the property (usufruct) that was going to last for her lifetime.[14] The usufruct consisted of all the goods he possessed and those that he could possess in the future and, among other things, the copyright subsisting in his literary works. The manner in which the transaction was arranged is indicative of his awareness of the distinction between tangible and intangible property. He specifically differentiated between books and copyright in literary works. And the scope of the transaction did not end here. By this legal means, at his wife’s death, the estate, including the copyright in his literary works, was going to descend to his heirs.

Although Isidora was granted the enjoyment of the copyright, she was not free to dispose of it according to her will. Neither was she allowed to transfer it before her death. Hence, and at her death, copyright and the property comprised therein were going to pass on again to some nephews. Since Núñez de Arce did not have any children of his own, several nephews were named as the main beneficiaries who were going to take the copyright and the rest of the property in common, although one of these nephews was granted a greater legal share.[15] So that was the main content of the will. Although not relevant for copyright, the rest of the document is still interesting to appreciate the whole structure of the transaction: a clause bequeathing a sum of money to named beneficiaries, a recommendation for a small bequest to loyal servants and the burial clause. It was also an excellent example of a document in which the requirements for validity were met.[16]  The document was legible and easily understood; the date, place and time were written down and, after the drawing up of the will, the document was read aloud. Capacity was also fulfilled since Núñez de Arce was declared able to make the will. And perhaps more importantly, three people (Serafín Rodríguez, Isidro Urbano, and Cristóbal Hernández) witnessed the signing of the will.[17]  On June 1903, Núñez de Arce died.[18]  He was then survived by his wife who died two years later.[19]  

6.  References

 Archival references

 Archivo del Senado, Madrid, Spain

Archivo de la Asociación de Escritores y Artistas, Madrid, Spain

Biblioteca Nacional de España,MSS14001/6 (Barbieri), Madrid, Spain

Bibliographic references

Bellido, J. Copyright in Latin America. Experiences of the Making (1880-1910) (PhD Thesis,University ofLondon, 2009) 

Castillo y Soriano, J. Núñez de Arce. Apuntes para su biografía (Madrid: Imprenta de José de Góngora, 1904) 

Castillo y Soriano, J. De mi paso por la vida. Notas varias (Madrid: Imprenta de Angel Alcoy, 1923) 

C.C. “Algunas disposiciones de las leyes de Propiedad intelectual y Propiedad industrial relacionadas con el oficio del Notario”  La Notaría, July 9, 1883, pp. 10311-10316