Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: d_1840

Bilateral Treaty between Austria and Sardinia, Vienna (1840)

Friedemann Kawohl

School of Finance & Law, Bournemouth University, UK

Please cite as:
Kawohl, F. (2008) ‘Commentary on the Bilateral Treaty between Austria and Sardinia (1840)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. References

1. Full title

Bilateral Treaty between His Majesty, the Emperor of Austria, and His Majesty, the King of Sardina, for the safeguarding of property rights with regard to the literary and artistic works that appear in their respective States; sealed in Vienna, on 22 May 1840; communicated to all courts of appeal by an Imperial decree of 14 July 1840

2. Abstract

This first international copyright treaty involving one of the German-speaking countries[1] was of major importance within Austria and Italy. The initial impetus for the treaty came from the Sardinian ambassador in Vienna,[2] and it was intended to resolve reprinting conflicts between, for example, 'Sardinian'[3] publishers from Turin and 'Austrian'[4] publishers from Milan and Venice, as well as to ban the importing of unlicensed reprints into Lombardy.[5] Elements of modern copyright theory, such as a general, abstract concept of the protected 'work'[6] and a post mortem auctoris term were implemented.[7] The treaty went on to form a major part of the Austrian Copyright Act of 1846,[8] and was incorporated into the domestic legislation of the Kingdom of Sardinia[9] and soon acceded to by other Italian states.[10] From the Italian authors' perspective, however, the treaty failed to set standards for copyright contracts, and remained "half-finished and incomplete"[11] in its professed aim of creating beneficial conditions for the Italian book market.

3. References

Books and articles [in alphabetical order]

Borghi, M., La Manifattura del Pensiero: Diritti d'autore e mercato delle lettere in Italia (1801-1865) (Milan: Franco Angeli, 2003)

Mittermaier, K.., "Neueste Gesetzgebung in Italien", Kritische Zeitschrift für Rechtswissenschaft und Gesetzgebung des Auslandes 12 (1840): 461-467. Available online at: <http://dlib-zs.mpier.mpg.de/>

Schuster, H. M., "Die Entstehung des Urheberrechtspatentes vom 19. October 1846", Juristische Blätter 20 (1891): 279-280, 291-294, 303-318, 327-331, 339-341

[1] It was preceded only by the Prussian treaties with other German States from 1827-1829 (d_1827a) which were all members of the German Confederation anyway.

[2] According to Heinrich M. Schuster, "Die Entstehung des Urheberrechtspatentes vom 19. October 1846", Juristische Blätter 20 (1891): 279-280, 291-294, 303-318, 327-331, 339-341 the initiative to enter into a treaty came from the Sardinian Ambassador in Vienna, who submitted a first draft. Austria then asked the governors of Milan and Venice for an opinion. While the report from Venice was quite short, the governor of Milan (which at the time had already become a centre of Italian publishing) sent in an amended draft after consultations in Milan on 22 March 1839 which were attended by the publisher and bookseller Francesco Artaria; the publisher Francesco Fusi; the music publisher Giovanni Ricordi; the censorship official for Lombardy, Pietro Lichtenthal; and the Chief Constable Carlo Giusto Torresani (dates and names are quoted from Maurizio Borghi, La Manifattura del Pensiero (Milan: Franco Angeli, 2003). The Milan draft was used as the basis for further negotiations between the Austrian official Johann Vesque von Püttlingen and the Sardinian Ambassador. A new draft was then circulated within the organs of the Vienna government and received without any objections by the State Chancellery (Staatskanzlei) and the Court Chancellery (Hofkanzlei). The Imperial Commission of Justice (Hofkommission in Justizsachen), however, took offence at the fact that the treaty would have gone further than the measures then in force in Austria to prohibit reprinting ("als gegenwärtig in Österreich der Nachdruck verboten ist" - Schuster, 328).

[3] After the Congress of Vienna in 1814, the Kingdom of Sardinia under Victor Emmanual I was reconstituted and enlarged by the incorporation of the former Republic of Genoa. As a result the King of Sardinia now ruled not only over the Island of Sardinia but also over some north-western parts of mainland Italy, including Piedmont and the major cities of Annecy, Chambery, Nice, Turin and Genoa. Between 1831 and 1849 Charles Albert was King of Sardinia, and by and large he continued the conservative, monarchist policies of his predecessors. However, in response to the revolutionary insurrections of 1848, he granted his subjects a constitution which was later to be adopted by the unified Kingdom of Italy in 1861 and formally remained in force until 1946, when the Italian Republic was established.

[4] The north-eastern regions of Italy which were under Austrian rule from 1804 until 1861 (Lombardy) and 1866 (Venetia) respectively.

[5] E.g. those produced by the publisher Annesio Nobili from Pesaro, which at that time was under Papal rule, cf. Borghi, Manifattura del Pensiero, 42.

[6] The protected subject matter was defined generally as "works and products of the intellect or the arts" (p.1). Explicitly included were "dramatic works" (p.2) and "engravings, lithographic prints, medals and sculptures" (p.12). Translations of foreign works were protected as original works within the signatory states (p.3).

[7] The copyright was awarded for the author's lifetime plus 30 years in favour of his heirs (p.18).

[8] d_1846 With regard to Austrian legislation, the treaty was regarded as having "fundamentally accelerated" (Schuster, 327) the completion of the Austrian Copyright Act of 1846. Schuster even came to the conclusion that the detailed provisions of this Copyright Act (d_1846b) were the direct result of Italian influence and of the need to prescribe in domestic law details that had already been worked out on a bilateral level, rather than any perceived need as such of addressing copyright issues within Austria. (Schuster, 328: "Die Bedeutung dieser Convention, also des italienischen Urheberrechts offenbarte sich nun dahin, daß sie für dieses interne Recht die urheberrechtlichen Probleme, und zwar mit einer Nothwendigkeit feststellte, die nicht aus der Sache selbst, sondern aus dem Gebote der legislativen Politik hervorging, die im internationalen Recht ausdrücklich bestimmten Einzelheiten auch im internen Rechte nicht unbestimmt zu lassen").

[9] On 30 May 1840, see Karl Mittermaier, "Neueste Gesetzgebung in Italien", Kritische Zeitschrift für Rechtswissenschaft und Gesetzgebung des Auslandes, 12 (1840): 461-467, here 461. Available online at: http://dlib-zs.mpier.mpg.de.

[10] The Vatican on 20 November 1840; the Grand Duchy of Tuscany on 10 December 1840; the Duchies of Parma (11 December 1840), Modena (19 December 1840), Lucca (7 January 1841), Ticino (15 March 1841). Cf. Borghi, La Manifattura del Pensiero (Milan: Franco Angeli, 2003), 49.

[11] ibid. 54.