Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: d_1832

Commentary on Eduard Gans's article "On the right to perform already published stage plays" (1832)

Friedemann Kawohl

Centre for Intellectual Property Policy & Management, Bournemouth University, UK

Please cite as:
Kawohl, F. (2008) ‘Commentary on Eduard Gans's article On the right to perform already published stage plays (1832)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Eduard Gans's conversion to Christianity and his academic career

4. On the foundation of property and individual authors' rights - Gans v. Savigny

5. Gans's arguments for an exclusive right to the performances of already published stage plays and the details of his draft law

6. The discussion on performing rights within the context of the revision of the Prussian Statute Book in 1832 ('Gesetzrevision')

7. References

1. Full title
Eduard Gans: "On the right to perform already published stage plays"

2. Abstract
This article by Eduard Gans was published in 1832 as part of a collection entitled Contributions to the Revision of Prussian Legislation (Beiträge zur Revision der preußischen Gesetzgebung). Gans presents a draft for a future law to protect the rights of authors of plays even after these have appeared in print. It is one of the first German documents to explicitly justify an author's rights in performances of his work by reference to an individual right vested in the author's person. Even if unrestricted performance rights were not to be granted before 1901 in Germany, this article did at least help to pave the way for the implementation of restricted performance rights through the Prussian Copyright Act of 1837 (d_1837a). This commentary will look at Gans's intellectual development from a "Hegelian un-baptised Christian" to a converted Protestant professor of law; at Gans's and Savigny's theories of property/ ownership and authors' rights; and at Gans's interesting contribution to the discussion which started around 1832 about possible amendments to Prussian copyright legislation.

3. Eduard Gans's conversion to Christianity and his academic career
Eduard Gans (1798-1839) was born into a wealthy Jewish family in Berlin which was, however, left impoverished as a result of the French occupation.[1] He studied law in Berlin, Göttingen, and Heidelberg where he was taught by Justus Thibaut (1772-1840) and obtained his doctorate in 1819 "with the highest honours" ("summis honoribus"). In Heidelberg he also met Hegel, who helped him to secure a post as a lecturer at Berlin University. After returning to his native city, Gans became one of the co-founders of the "Association for the improvement of conditions for Jews within the German Confederation" ("Verein zur Verbesserung des Zustandes der Juden im Deutschen Bundesstaate"), a lobby-group founded in reaction to the anti-Jewish Hep-Hep riots that had swept through a number of German cities in the summer of 1819, having been instigated mainly by members of guilds who had been frustrated in their hopes that after the French occupation their old privileges would be restored. Following long discussions about what name it should adopt and which objectives it was to pursue, the Society was officially established in 1821, calling itself the "Association for Culture and Science of the Jews" ("Verein für Cultur und Wissenschaft der Juden"), and was more of a scholarly than a political organisation.[2] Gans was appointed its president, but he soon had to resign as a result of internal disputes. The members, who numbered around 50 young Jewish scholars, sought to arrive at a modern view on Jewish history, based on a critical reading of the historical sources rather than on a strict interpretation of the Bible. Because of their rational approach the Association was rejected by conservative Jews. Gans, influenced as he was by Hegel's concept of Judaism in the philosophy of history, put forward some quite radical views within the Association, as, for example, when he declared that the Jewish idea of "oneness" had to be adapted to a modern European plurality,[3] or when he explicitly called for the "destruction of rabbinism and restoration of a pure Mosaism".[4] In the eyes of Leopold Zunz (1794-1886), also a member of the Association and the founder of what later came to be termed the "Science of Judaism", Gans at that time was an "un-babtised Hegelian Christian".[5]

The 1812 "edict concerning the civil status of Jews within the Prussian state" ("Edikt betreffend die bürgerlichen Verhältnisse der Juden in dem Preußischen Staate") achieved a lot towards the emancipation of the Jews in Prussia, but was nevertheless incomplete. As Christopher Clark has described the situation:

"The edict freed Jews from the special taxes and restrictions on movement and marriage that had encumbered Jewish life in the kingdom of Prussia, and it stated that Jews were "nationals and citizens of Prussia" who shared the rights and obligations of their Christian fellows, but it left open the crucial issue of whether Jews should be admitted to state employments. Paragraph 9 of the edict stated: "We reserve the right to determine in the course of time the extent to which Jews can be admitted to public service and state offices". The importance of this omission should not be underestimated. "Öffentliche Bedienungen und Staatsämter" included a spectrum of employments embracing all the activities of Prussia's large and ramified national and provincial bureaucracies, offices in local and municipal administration and teaching positions at schools and universities. More importantly, perhaps, the ethos of public service in Prussia meant that the categorical exclusion from public office carried much discriminatory symbolic weight. Prussian Jews were free to live and to conduct commerce wherever and with whatever goods they wished, but they remained excluded from positions of political authority and prestige."[6]

Many Jews who had received a higher education converted to Protestantism in those years, partly because of these restrictions, and partly because they sensed a contradiction between their Jewishness and the currents then prevailing in university circles ( e.g. Romanticism, German Idealism, historical criticism). This notwithstanding, the members of the Association set up by Zunz and Gans were prepared to try to square modern scholarship with Jewish identity. Their new Journal for the Science of Judaism (Zeitschrift für die Wissenschaft des Judenthums), to which Gans contributed the most articles, appeared in only three issues in 1822-23, and already in 1824 the Association was clearly falling apart. Thanks to a grant from the Prussian government in 1825, Gans was able to travel to Paris, where he made the acquaintance of Athanase Jourdan (1791-1826), the founder of the journal Themis, the future politician Saint-Marc Girardin (1801-1873), and Eugène Lerminier (1803-1857), who was appointed a professor at the Collège de France in 1831 and played a significant role in the dispute between the historical and philosophical schools of law.[7] During his stay in Paris, in December, Gans was baptised, and after his return to Berlin in 1826 he was appointed an assistant professor of law, obtaining a full professorship in 1828.[8]

4. On the foundation of property and individual authors' rights - Gans v. Savigny
In Germany it was Immanuel Kant who first popularised the idea of individual rights or ‘Persönlichkeitsrechte'. Generally speaking, in the definition of these rights the idea of freedom was closely connected with the concept of property. The right to one's own person, specifically the right to use one's own body and mind, served as the stimulus behind the movement for civil rights and liberties. The concept of personal freedom was elaborated further in Hegel's Berlin lectures on the philosophy of law, which had at their core the conviction that "the individual has to grant himself an external sphere of freedom, in order to be able to exist ideally."[9] This external sphere covered possession and property. Possession and property are manifestations of a person's free will. As Hegel puts it, "the form itself is precisely a sign that the thing is to be mine."[10] Conceived in such terms, property exists irrespective of whether or not it is acknowledged as belonging to a person. The Hegelian school was not without its critics. In the 1830s, a debate arose concerning the fundamental principles of private law. The opposing schools of thought were spearheaded by two professors of law at Berlin University, Eduard Gans and Friedrich Carl von Savigny. During those years Gans was lecturing mainly on legal philosophy and natural law. He openly supported democratic and republican ideas.[11] This, together with his rhetoric skills, made him very popular with his students,[12] amongst whom, from the late 1820s onwards, were not just law students but also musicians like Felix Mendelssohn-Bartholdy and Adolph Bernard Marx.

Gans' s opponent and arch-rival was Friedrich Carl von Savigny. After failing to prevent the appointment of Gans, Savigny avoided personal contact with him and abstained from meetings of the law faculty. Savigny was the principal exponent of the German Historical School of Law (‘Historische Rechtsschule') and is still regarded as the most influential legal theorist in nineteenth-century Germany. His work focused on attempts to derive sets of legal principles drawn from history, based on the assumption that popular consciousness (‘Volksgeist') shaped a nation's laws. As a result of his opposition to the French Napoleonic Code, and indeed to any form of constitution, Savigny was considered to be anti-republican.

The dispute started over a key assumption, made in Savigny's principal work, The Law of Property (Das Recht des Besitzes), that "possession as such is not a legal relationship, but a mere fact."[13] Savigny could derive a concept of property only from pre-existing rules. Possession alone, before its external acceptance, could not be considered a given right. Gans, on the other hand, drew on Hegel to refute this standpoint. Through property a person is connected with his external sphere of freedom: without property, a person is not conceivable at all. For Gans, possession of property was the physical expression of the individual will, and such possession was an inherent right.[14]

Unlike most disputes in the philosophy of law, this quarrel attracted considerable public attention. The Berlin wine merchant Louis Drucker, who was well-known for his witty slogans, placed an advertisement in a newspaper with a request to the 'conflicting schools of scholars' to decide whether Amalie Rindfleisch, a famous prima donna of the time, was "in real possession of a voice, and whether this voice is a right or a fact."[15]

In his assessment of G. F. Puchta (who defended Savigny against Gans's attacks) Johann Braun summed up the debate as follows:

"The heart of the matter was the question as to whether the system of private law can ultimately be regarded as a system of subjective rights or just as a system of general norms [...] If nowhere else, the answer to this was to be found in the further question as to why unlawful possession is also protected against infringements: is it because the unauthorized possessor, too, thereby suffers an encroachment on an inalienable right, or, rather, because norms which are in the public interest forbid such a violation of anyone's property right?"[16]

The differences of opinion between the two men also manifested themselves in the views they expressed on copyright issues. Both of them find two reasons which speak in favour of copyright protection, one being the author's complete lack of income. But thereafter their views diverge for, as Savigny says, if there is no protection,

"the author does not have control over his work, he cannot buy up all the copies of a work that he perhaps wishes to suppress [...] he cannot even withdraw his name and the weight it carries from the work."[17]

For Gans, however, the crux of the problem lies in the presumption of the person who decides to reprint and publish the work. He points out:

"Regarding reprint, the consensus is to call it a reprehensible act because there is an incontestable right of a person to express and to communicate his thoughts. This right most certainly also includes the free and exclusive choice of the manner in which these thoughts are expressed. In the case of utterances made in passing, custom and morality set the limits [of this right], whereas with utterances which are meant to have a lasting existence, it depends on whether there is a continuous association between the author and what he has expressed. There is such an association in works of the intellect"[18]

In Savigny's opinion the work is completely removed from its author and becomes a commodity. The only connection that persists is merely the author's name, stuck like a label to each copy of the book. But Gans sees the intellectual work as a special case of personal expression. Here the relationship between an author and his or her work of art is stronger than the relationship between the proprietor and property: the work is considered to be a permanent expression of the author's will. As we have seen, this was enough for Hegel and Gans to justify an independent right. In the end both Gans and Savigny left their mark on the Prussian Copyright Act of 1837. Gans's theory paved the way for subsequent legislation on the publishing right, whilst Savigny, as a member of the department of justice in the Prussian State Council (Staatsrat), was directly involved in the law-making process. It was probably thanks to his initiative that the title of the law refers to the traditional concept of 'reprinting'.

5. Gans's arguments for an exclusive right to the performances of already published stage plays and the details of his draft
Gans's monograph "On the right to the performance of published stage plays" was included in an 1832 collection of articles concerning the revision of the Prussian Statute Book. In that same year, a special department of the Prussian Ministry of Justice had been set up by Karl Albert von Kamptz (1769-1849) to coordinate the amendments made to the Prussian Statute Book and to harmonise legislation in the Rhine Provinces, in some areas of which French law had been in force ever since their occupation by French revolutionary troops in the 1790s. Kamptz was a self-avowed conservative and monarchist, and within the Prussian administration he was therefore the antipode, in political views, of the republican Gans. In 1819, his position in the Ministry of Interior became unsustainable after he undertook a desperate and failed attempt to ban a book by the Romantic author and Prussian Supreme Court judge E.T.A. Hoffmann, who had satirised Kamptz in his novella Meister Floh as the "police spy" and Privy Councillor Knarrpanti who says such things as: "once the delinquent has been identified, the crime committed will automatically be found."[19]

At the beginning of his article Gans laments that the "intellectual property of the German nation has been left unprotected and unsecured" (377) over the territories of the German federation. Here the term "intellectual property" is employed, however, not to substantiate a private claim to property, but rather to emphasise a problem of national importance. He then goes on to refer to the contradiction between the definition of property in Roman law, on the one hand, and intellectual property, on the other, and he invalidates the classical argument of orthodox Roman jurisprudence by asking ironically if the reprinter has a legitimate right to his reprint copies provided that he had actually purchased the original copy, rather than just borrowed it. He does, however, agree with the general Enlightenment view (sometimes invoked by reprinters) that "nobody can be the [sole] proprietor of his thoughts and intellectual utterances", without, that is, defending it as a justification for reprinting.

Gans describes the practice of German theatres with regard to performance rights as follows:

"It would be regarded as theft if the director of a theatre, without asking the author or coming to an agreement with him about the price of the manuscript, were to allow himself to stage such a work. However, as soon as a play has been published, the view is that the author has given his consent for its performance and, what is more, without this requiring any further contract. Neither is it necessary, according to this view, to offer the author any kind of remuneration, since having purchased a copy of a play surely gives a right to undertake its production on the stage."[20]

Here both aspects of Gans's theory are clearly outlined: the author's consent and the remuneration which he is due. The following justification of the author's exclusive right to allow or forbid a public performance is, however, solely based on his personal right to his expression:

"He who has handed over a play for publication will have to concede the buyer of a copy all the rights which an individual is entitled to exercise with regard to a single object. The buyer can destroy, abandon, sell, or use the book himself. As part of this utilization, he may also allow others to use it [in such ways]. But he is not allowed to do anything which would turn this utilization into a different, more general, kind of manifestation that has not been permitted by the author, who is alone entitled to it, and as a result of which we would not be dealing with the private utilisation of the object any more, but rather the ownership of this object is merely used as the opportunity to carry out something which has nothing whatsoever to do with this ownership."[21]

The permitted ‘private utilization of a single object' is contrasted here with 'a more general kind of manifestation', to which no one but the author (or his appointed publisher) is rightfully entitled. The grade of publicity is thus established as the real basis for claims to author's rights. He continues in this vein by noting how

"Through its performance a play makes its appearance before an audience: moreover, it is handed over to the public in a rather different and more intensive way than is the case with mere printing."[22]

After a reference to Leopold Neustetel's (1798-1825) book (d_1824) he continues to describe the double injustice of reprinting, which is both an offence against the author's person (injuria) and an appropriation of the profit which is rightfully his. Gans comes to the following conclusion:

"The view that any theatre can stage a published play just like that, simply because it has been published, is therefore wrong for two reasons: firstly, it allows one to enrich oneself with another's property, and, secondly, it means exposing someone else to a risk which that person may not want to incur in the first place. These two disparate reasons, however, come down to the same thing precisely because given that at every performance the author is exposed to the risk of provoking displeasure, he is all the more entitled to a compensation which is just as much a reward for his labour as a benefit [in the sense of insurance] for the risk to which he is exposing himself."[23]

On the basis of the arguments put forward Gans then proposes a full draft for an act of legislation on performance rights, giving the author the entitlement, for a period of ten years, to a fixed share (royalty) of 10% of the gross takings after each performance, as well as the exclusive right to allow or forbid productions using an adapted version of the original play.

6. The discussion on performing rights within the context of the revision of the Prussian Statute Book in 1832 ('Gesetzrevision')
In Germany it was not before 1901 that the author's performance rights were guaranteed even after the work had been published in print. Gans's proposal, however, did help to establish a limited performing right to unprinted works in the framework of the Prussian Copyright Act of 1837 (d_1837a). A major impetus towards a new statute was provided by the discussion on copyright overseen by the Ministry for the Revision of the Laws (Ministerium für Gesetzrevision), which had only recently been established (in 1832).

A first proposal to "impose a penalty for unlicensed performances of dramatic works without the playwright's consent or unauthorised adaptations" was already made by the Provincial Court of Appeal (Oberlandesgericht) in Frankfurt-on-the-Oder in 1828.[24] The proposal was dismissed, however, with a reference to § 428 of the French Code pénal of 1810 which, in the view of the Ministry for the Revision of the Laws, was not to be adopted. In 1832, as part of the continuous process of revision of the Prussian Statute Book of 1794, those provisions in the latter which were concerned with copyright (d_1794) were re-examined, and the proposal of the Frankfurt-on-the-Oder court was again discussed and dismissed. The printed document gives the reasons in plain words, but much more plausible is the hand-written comment by the Minister of Justice von Kamptz:

"In my view, a playwright has no right whatsoever to object to any performance of a work of his that has entered the realm of the book trade. The publishing contract means that he has forfeited his intellectual property, however much the latter may have extended before that. The publisher only has a right protecting him against reprinting. The buyer of a copy of a work which has been published and is on sale can do whatever he wants with it: he can read it aloud and act it out to himself or in front of a large gathering of people, irrespective of whether he does so for free or charges for it. The sculptor who has sold his statue has no right to demand of its owner a share of the entrance ticket revenues if the latter is exhibiting it for money. He who submits sermons, medical prescriptions, templates for agronomic accounts, etc. for publication and printing has no right to forbid a preacher from giving those sermons, or a doctor or agronomist from making use of his work. If a playwright does not want this to happen, then he must sell the product of his intellect in manuscript form to the theatre directors: there is no way that he can use it as a manuscript and as an article of the book trade at the same time."[25]

Kamptz explicitly refuses any right on the author's part once he has sold his manuscript to the publisher in order to have it published. In Kamptz's view, the author has thereby sold his "intellectual property": from the handwritten comment it appears that Kamptz's notion of "intellectual property" was restricted to the material aspects of printing and reprinting, whereas the (albeit acknowledged) right of the author to hire or sell unpublished manuscripts did not fall within the scope of "intellectual property".

This narrow concept of "intellectual property", however, was apparently not shared by all the members of the Revision Committee. As part of the general remarks on the reprinting paragraphs in the 1794 Statute Book, it is first affirmed that the sections dealing with author-publisher relations are rightly included in the part on "Contracts concerning actions done to things" ("Von Verträgen über Handlungen gegen Sachen"), before the discussion is expanded to consider the special quality of author's rights:

"It is certainly true that a writer's right to his work must be regarded as a property, but it is a special kind of property, and, what is more, in a completely different sense to that implied by Suarez [the editor of the 1794 Statute Book] when he argued that ‘one couldn't say anything specific' about a writer's property in his work until he has submitted it for publication. For one must, in fact, think of property in a product of the human intellect in the sense that the author has an exclusive right to its reproduction and communication to the public. [At this point a footnote refers to Kramer's book, d_1827b] This property in a work of the intellect is different to all other known forms of property, and, depending on whether the author prints his work at his own expense or whether he entrusts a publisher with this task, it is exerted either by him personally or by someone else [...] This intellectual ownership, which is exerted through exclusive reproduction, is present insofar as it is recognised as present. In Prussia it is recognised, so therefore it exists [here]"[26]

Here a step towards a modern concept of copyright is clearly marked out. Under the terms of the 1794 Statute Book, the author's property in his unpublished work was irrelevant and in no theoretically defined relation to the publisher's property, which alone was statutorily specified and recognised as originating with the sales contract for the manuscript. Now, in 1832, the "author's property in the product of the human intellect" is acknowledged as a twofold exclusive right covering both "reproduction" and "communication to the public". Looking ahead to the later categories of ‘dualistic' (i.e. treating author's rights as a conglomerate of commercial and moral rights - cf. Kohler, d_1880) and ‘monistic' theories (i.e. these commercial and moral rights having a common root in an individual right to which every person is entitled - cf. Gareis d_1877), what we are dealing with in the Revision Committee's observations is effectively a precursor of a dualistic theory, whereas Gans's primary emphasis on the publication of a personal expression by the author adumbrates the monistic view.

Kamptz's annotations, on the other hand, can be taken to represent what we might call an "either - or else" theory. Whereas monistic and dualistic theories converge in their general recognition of the author's claim to both individual and commercial rights, Kamptz instead puts forward an alternative view (albeit not one that can be matched exactly to the later conceptual divide): either the author holds a right to his unpublished manuscript and can thus decide whom he authorises to perform his play, or he can decide to have it published, as a result of which not he himself, but the publisher, if he has transferred it to him, holds a reprinting right to the work.

The differences between Gans and Kamptz in the process of the revision of Prussian copyright legislation around 1832 can be traced back to their belonging to different generations and philosophical schools. Kamptz (b. 1769), who had studied in Göttingen under Pütter (cf. d_1774) remained rooted in Enlightenment notions of reprinting right (cf. d_1785), and, belonging to a generation which had had first-hand experience of the wars with France, he stuck to an anti-French and anti-republican attitude throughout the rest of his life; whereas Gans (b. 1797) belonged to a generation of Hegel adepts and fervently upheld a pro-French and pro-republican stance.

Gans, as a follower of Hegel and as one of the main proponents of the Haskalah (Jewish Enlightenment) movement (if only for a couple of years), had a particular awareness to adequate measures for dealing with conflicts in public. On the one hand, his concept of author's rights focussed on the repercussions which publication of the author's ‘expression' might have on his person, and, on the other hand, he insisted on several occasions that readers should be able to relate public expressions to their authors. As editor of the leading Hegelian journal Jahrbücher für wissenschaftliche Kritik, Gans promised, in 1827, to combat the "brigandage of anonymity" ("Banditenwesen der Anonymität"), and in 1817, aged just 19, he had had to defend his late father Abraham Gans - who as a banker had played an important role in Prussian public finances during the war - against anti-Jewish accusations. In an open letter to the editor of the Oppositionsblatt oder Weimarische Zeitung, the journal that had published the incriminating article, Gans claimed the right to demand that the publisher release the name of the anonymous author - probably Friedrich Rühs (1781-1820), a professor of history at Berlin - and insisted that the veil of anonymity be raised so that he could sue the author for slander.[27] The notion of 'Injurie' - the German term which is equivalent to 'slander‘ in modern English law - is precisely that on which Neustetel (d_1824) and, less explicitly, Gans based their concepts of author's rights.

7. References

Books and articles [in alphabetical order]

Blänkner, Reinhard, Norbert Göhler, and Norbert Waszek, introduction to Eduard Gans (1797-1839): Politischer Professor zwischen Restauration und Vormärz (Leizig: Leipziger Universitätsverlag, 2002), 9-19

Blänkner, Reinhard, Eduard Gans (1797-1839): Politischer Professor zwischen Restauration und Vormärz (Leipzig: Leipziger Universitäts-Verlag, 2002)

Braun, Johann, Judentum, Jurisprudenz und Philosophie: Bilder aus dem Leben des Juristen Eduard Gans (1797-1839) (Baden-Baden: Nomos 1997)

Clark, Christopher "The limits of the confessional state: conversions to Judaism in Prussia 1814-1843", Past & Present 147 (1995): 159-79

Gans, Eduard, "Der Büchernachdruck nach Römischem Recht betrachtet von Dr. Leopold Neustetl", in his Vermischte Schriften juristischen, historischen, staatswissenschaftlichen und ästhetischen Inhalts (Berlin, 1834)

Geiger, Ludwig, "Aus Eduard Gans' Frühzeit (1817)", Zeitschrift für die Geschichte der Juden in Deutschland 1 (1892): 91-99. Available online at: <http://www.djl.de/start.aspx>

Hegel, G.W.F., Elements of the Philosophy of Right, ed. by. Allan W. Wood (Cambridge: C.U.P., 1991)

Hegel, Georg Wilhelm Friedrich, Die 'Rechtsphilosophie' von 1820 (=Vorlesungen über Rechtsphilosophie 1818-1831, vol.2), ed. by Karl-Heinz Ilting (Stuttgart: Frommann-Holzboog, 1974)

Hoffmann, E.T.A., Meister Floh (Frankfurt: Wilmans, 1822). There is an online edition at: <http://www.elibron.com/english/>

Regge, Jürgen (ed.) Gesetzrevision (1825-1848), 2 vols, vol.1 [ reprint edition (Vaduz: Topos, 1982)]

Schoeps, Hans-Joachim, "Über die Berufung von Edard Gans", Zeitschrift für Religions- und Geistesgeschichte 14 (1962): 279-281

Wadle, Elmar, Geistiges Eigentum: Bausteine zur Rechtsgeschichte (Weinheim: VCH, 1996)

Wadle, Elmar, "Die Anfänge des Aufführungsrechts in Preußen und im Deutschen Bund", Festschrift für Alfons Kraft zum 70. Geburtstag (Neuwied: Luchterhand 1998)

Waszek, Norbert, introduction to a reprint edition of Eduard Gans, Rückblicke auf Personen und Zustände [1836] (Stuttgart: Fropmman-Holzboog, 1995), xiii-lxxvi

Waszek, Norbert, "Eduard Gans on Poverty and on the Constitutional Debate", in The New Hegelians: Politics and Philosophy in the Hegelian School, ed. by Douglas Moggach (Cambridge: C.U.P., 2006), 24-49

[1] Reinhard Blänkner, Norbert Göhler, and Norbert Waszek, Introduction to their book Eduard Gans (1797-1839): politischer Professor zwischen Restauration und Vormärz (Leizig: Leipziger Universitätsverlag 2002).

[2] On the early years of the Association see Johann Braun: Judentum, Jurisprudenz und Philosophie: Bilder aus dem Leben des Juristen Eduard Gans (1797-1839) (Baden- Baden 1997), 9-50.

[3] See Gans's lecture of 28 April 1822, quoted in Braun, 32.

[4] From Gans's lecture of 7 November 1819, quoted in Braun, 13.

[5] Quoted in Braun, 141.

[6] Christopher Clark, "The limits of the confessional state: conversions to Judaism in Prussia 1814-1843", Past & Present 147 (1995): 159-79.

[7] Blänkner, Göhler, Waszek, Introduction.

[8] Hans-Joachim Schoeps, "Über die Berufung von Eduard Gans", Zeitschrift für Religions- und Geistesgeschichte 14 (1962): 279-281.

[9] Georg Wilhelm Friedrich Hegel, Die 'Rechtsphilosophie' von 1820 (=Vorlesungen über Rechtsphilosophie 1818-1831, vol.2), ed. by Karl-Heinz Ilting (Stuttgart: Frommann-Holzboog 1974), 206 ( §41): "Die Person muß sich eine äußere Sphäre ihrer Freiheit geben, um als Idee zu seyn."

[10] G. W. F. Hegel, Elements of the Philosophy of Right, ed. by. Allan W. Wood (Cambridge: C.U.P, 1991), 83 (annotations to § 52). "Form [...] ist [...] eben ein Zeichen, daß die Sache mein sein soll."

[11] On a trip to Dresden in 1820, Gans and Hegel celebrated the Fourteenth of July with champagne. The relationship between the two men is explored by Norbert Waszek, Introduction to Eduard Gans, Rückblicke auf Personen und Zustände [1836] (Stuttgart / Bad Cannstatt: n.p. 1995), xiii - lxxvi.

[12] Around 1830, Gans' lectures attracted an audience of about a thousand, half the total number of students at the university. Waszek (ed.), Rückblicke, xxxiv, f.n. 79.

[13] Friedrich Carl von Savigny, Das Recht des Besitzes (4th ed. Gießen): "[...] der Besitz an sich kein Rechtsverhältnis ist, [...]" (p.6.); "An sich, seinem ursprünglichen Begriffe nach" sei der Besitz "ein bloßes Faktum" (p.21), quoted in Braun, 93.

[14] Eduard Gans, System des römischen Civilrechts im Grundrisse (Berlin, 1827), quoted in Braun, 96: "Der Rechtsgrund des Besitzes liegt darin, daß schon der besondere Wille der Person, wo er sich in den Sachen äußert, ein Recht (sei) und als solches behandelt werden (müsse)."

[15] Zeitung für die elegante Welt (1839): 318, quoted in Braun, 91: "Die 'zwiespältigen Gelehrtenschulen' solten entscheiden, ob Achmalia Rindfleisch im wirklichen Besitz einer Stimme und ob demnach diese Stimme ein Recht oder ein Faktum sei".

[16] Braun, 115: "Für den Systematiker Puchta ging es im Kern vielmehr darum, ob das Sytem des Privatrechts in letzter Konsequenz als ein System subjektiver Rechte begriffen werden konnte oder nur als ein System allgemeiner Normen [...]. Wenn überhaupt irgendwo, mußte sich dies bei der Frage entscheiden, warum der unberechtigte Besitz gegen Verletzung geschützt war: weil auch der unberechtigte Besitzer dabei immer noch in einem Recht verletzt wurde oder weil im allgemeinen Interesse liegende Normen eine Besitzrechtsverletzung eben verboten?"

[17] Carl Friedrich von Savigny, Notizen zum Gesetz über den Nachdruck (Faszikel: Sicherung gegen Nachdruck und Verlagsverhältnis betreffen. Materialien zu einem künftigen Verlagskontract, BI. pp. 35-36), included as Appendix 2 in the chapter "Carl von Savignys Beitrag zum Urheberrecht" of Elmar Wadle, Geistiges Eigentum: Bausteine zur Rechtsgeschichte. (Weinheim: VCH, 1996), 267-308. "Dem Verfasser wird die Beherrschung seines Werks erschwert oder verhindert - er kann nun nicht das von ihm vielleicht verworfene Werk aufkaufen, unterdrücken, in Vergessenheit gerathen lassen, ja ihm nicht einmal das Gewicht seines gegenwärtigen Namens entziehen."

[18] (d_1834_im_001_0006) p. 315 f. Eduard Gans, Der Büchernachdruck nach Römischem Recht betrachtet von Dr. Leopold Neustetl, in Vermischte Schriften juristischen, historischen, staatswissenschaftlichen und ästhetischen Inhalts (Berlin 1834) p.315f: "Auf den Nachdruck angewandt, kommen Alle darin überein, ihn eine anmaßende, verwerfliche Handlung zu nennen, denn es ist ein unbestreitbares Recht der Person, ihre Gedanken überhaupt zu äußern und mitzutheilen, wozu auch unbedingt die freie ausschließliche Wahl des Weges dieser Aeußerung gehört. Bei vorübergehenden Aeußerungen, bestimmt die Sitte und Sittlichkeit die Gränze, bei Aeußerungen, die eine bleibende Existenz haben sollen, kommt es darauf an, ob ein Zusammehang mit der Person des Urhebers erhalten ist, oder nicht; bei Geisteswerken besteht dieser Zusammenhang [...]"

[19] E.T.A. Hoffmann, Meister Floh: "dass, sei erst der Verbrecher ausgemittelt, sich das begangene Verbrechen von selbst finde" (quoted from an online version at: elibron.com, p.66).

[20] See d_1832_im_001_0004 (p.380). Translation by Luis A. Sundkvist.

[21] Ibid.

[22] Ibid. d_1832_im_001_0005 (381).

[23] Ibid. d_1832_im_001_0007 (383).

[24] Jürgen Regge (ed.) Gesetzrevision (1825-1848), 2 vols, vol. 1 [reprint edition (Vaduz: Topos 1982), quoted here from Wadle, "Die Anfänge des Aufführungsrechts in Preußen und im Deutschen Bund", in Festschrift für Alfons Kraft zum 70. Geburtstag (Neuwied: Luchterhand 1998), 40.

[25] "Ein dramatischer Schriftsteller hat m.E. überall kein Recht, der Darstellung seines in den Buchhandel gekommenen Werks zu widersprechen. Er hat durch den Verlagscontract das geistige Eigentum verloren und würde dasselbe sich auch nicht so weit erstreckt haben. Der Verleger hat nur ein Recht wegen Nachdruck. Der Käufer eines in den Buchhandel gekommenen Exemplars kann mit demselben machen, was er will, es für sich allein und in großer Gesellschaft gratis oder gegen Honorar vorlesen und mimisch darstellen. Der Bildhauer, der seine Statue verkauft hat, hat kein Recht, von demjenigen, der sie für Geld sehen läßt, einen Theil der Entrèe-Gelder zu fordern. Wer Predigten, ärztliche Rezepte, Muster landwirtschaftlicher Rechnungen etc. in den Buchhandel gibt, ist nicht berechtigt, zu untersagen, daß ein Prediger sie hält, ein Arzt oder ein Landwirt seine Arbeit braucht. Will ein Bühnendichter das nicht, so muß er sein Geistesproduct als Manuscript an Theaterdirektoren verkaufen; als Manuscript und öffentlichen Buchhandelsartikel gleichzeitig kann er sie unmöglich benutzen." Quoted from the archives by Wadle, "Die Anfänge des Aufführungsrechts", 41.

[26] "Allerdings muß das Recht des Schriftstellers an seinem Werke als ein Eigenthum angesehen werden, aber als eine besonder Art von Eigenthum, und in einem ganz anderen Sinne, als in welchem Suarez sich dahin äußerte, über das Eigenthum des Schriftstellers an seinem Werke, solange er es nicht in Verlag gegeben, "sey nichts Besonderes zu sagen". Man muß nämlich ein Eigenthum an dem Erzeugnisse des menschlichen Geistes in der Weise denken, daß dem Autor ein ausschließliches Recht auf Vervielfältigung und Mittheilung desselben an das Publikum zusteht. Dieses Eigenthum an dem Geisteswerke ist von allen anderen bekannten Formen des Eigenthums verschieden, und wird von dem Schriftsteller, je nachdem er sein Werk für eigene Rechnung drucken läßt oder in Verlag gibt,entweder in eigener Person oder durch enen Anderen ausgeübt [...] Jenes geistige Eigenthum , welches durch ausschließliche Vervielfältigung ausgeübt wird, ist vorhanden, sofern es als vorhanden anerkannt wird. In unserem Staate wird es anerkannzt, und deswegen existirt es." - from "Motive zu dem von der Deputation vorgelegten Entwurf der Titel 11. u. 13 des ersten Theils des Allgemeinen Landrechts", in Jürgen Regge (ed.) Gesetzrevision (1825-1848), 2 vols, vol. 1 [reprint edition (Vaduz: Topos 1982)], 169 [565 of the reprint edition]. Translation by Luis A. Sundkvist.

[27] Ludwig Geiger, "Aus Eduard Gans' Frühzeit (1817)", Zeitschrift für die Geschichte der Juden in Deutschland 1 (1892): 91-99. Available online at: http://www.djl.de/start.aspx