Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: f_1814a

Commentary on the Court of Cassation's ruling of 2 December, 1814, on compilations

Frédéric Rideau

Faculty of Law, University of Poitiers, France

Please cite as:
Rideau, F. (2008) ‘Commentary on the Court of Cassation on compilations (1814)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 

1. Full title

2. Abstract

3. The revolutionary legislation and the object of literary property

4. The decisions of the judges of first instance

5. Merlin's conclusions

6. The Court of Cassation's ruling of 2 December, 1814: between an objective and subjective definition of the work

7. The implementation of the 1814 criteria

8. References

1. Full Title

Leclerc v. Villeprend and Brunet, Court of Cassation, Criminal Division, 2 December, 1814.

2. Abstract

On 2 December, 1814, the Court of Cassation, in view of the terseness of the seven articles that made up the legislation of 1793, was to make a positive pronouncement on the principle underpinning the protection of compilations, works of this type having still in theory to be the product of a conception proper to the author in order to be considered as "new" literary works. The judges of the supreme court thus undertook the difficult task of identifying once and for all the object of the most ‘sacred' right of property, the protection of which was at the same time required to apply legally to writings "of any kind".

3. The revolutionary legislation and the object of literary property

The legislation of 19-24 July, 1793, had consecrated by parliamentary law the author's right of property over his work, thus bringing to a close the long debates of the eighteenth century concerning booksellers' privileges. The tenor of these debates had principally concerned the duration of the royal grace, which was made perpetual in favour of the author by the rulings of 30 August 1777 for books of any kind.

Following on from and trying to reconcile different trends (see f_1793), the legislation of 1793 therefore declared the author's ownership of his work as the form of property which was least open to contestation, and acknowledged the fact that it would also be necessary to protect writings "of any kind" (les écrits en tout genre). 

A mere seven articles settled the matter. The definition of the work would henceforth be a jurisprudential matter, for writings of any kind, but equally for musical compositions, paintings, and designs.[2] Confronted with this singular and personal type of property - the latter qualifying adjective we have taken from Le Chapelier (f_1791a) - judges would essentially have to interpret the Revolutionary text, and consider throughout the nineteenth century what did and what didn't constitute "a work of literature or engraving, or of any other production of the mind or of genius".[3] The contrast with other national jurisdictions, such as that of the United Kingdom, is worth bearing in mind: in the realm of fine arts, for example,  judges in other countries had to be more strict in applying the explicit threshold of protection determined by statute.[4] In theory, common criteria for the definition of these works ought to have been applicable to works ranging from the most basic utilitarian products to the most emotive of works, or to works whose aesthetic vocation was beyond doubt. Concerning the minimum threshold of protection of these productions, was the work therefore supposed to represent a certain investment of labour on the part of the author, or should it mainly be his or "unique to him" (lui être proper)? Or, in other words, was the admissibility of the work to be measured objectively, as with patents, with novelty allowing a work to be presumed worthy of protection, and even in some sense objectively original (since novelty can imply labour, but also originality); or subjectively, that is, as deriving principally from the person of the author, insofar as the work reflected his personality?[5]

Before the decisive ruling of 2 December, 1814, the Court of Cassation took a first position on this question, on 3 Brumaire, Year 13. Judges established that "the advantages accorded to authors by the law of 19 July, 1793, may only be claimed by those who are genuinely authors; by those to whom belongs the first conception of a work, be it of literature, or of the arts, which the law takes to be as one in this respect".[6] It is this approach, which remains enigmatic as far as the phrase "first conception" is concerned, that had to be interpreted by the judges in the matter that interests us here.

4. The decisions of the first judges

The abbé Cardon had produced a manuscript entitled Christian Readings, in the form of Familiar Instructions on the Sunday Epistles and Gospels, and on the Principal Feast Days of the Year, and had transferred full ownership of it, very probably in exchange for a lump sum, to M. Leclerc, a Parisian printer and bookseller. This private contract of 19 Fructidor Year 10 contained other customary obligations, in particular the requirement that the publisher should provide Cardon with two hundred copies, and that he should not bring out any new editions without the prior consent of the author.[7] Merlin, the great jurist of the day, and Chief Prosecutor (procureur général) to the Court of Cassation in this matter, also drew attention to the fact that the first edition had appeared without the name of the author, and that in December 1807 the requirements for legal deposit with the Bibliothèque nationale were met in accordance with article 6 of the law of July 1793.[8] In 1811, Villeprend and Brunet, printers at Lyon, with the collaboration of the bookseller Savy, decided to produce a new edition of the work, the third. Consequently, in 1812, Leclerc, Cardon's transferee, had the two printers and the bookseller cited before the Correctional Tribunal of Lyon on a charge of reprinting.

A judgment of first instance was made on 10 August, 1812, nonsuiting Leclerc on the grounds that the deposit of two copies of the work at the library was insufficient; to benefit from the right of property guaranteed by the law of 19 July, 1793, it was necessary to be the "genuine" (véritable) author (or his transferee). In so ruling, the judges were doubtless applying the criterion adopted by the Court of Cassation in its decision of 3 Brumaire, Year 13, mentioned earlier: in particular, what was said there about the "first conception of the work". In this instance, indeed, Cardon had declared in a notice which he had intended to place at the beginning of the work that he had based the substance of his manuscript on the Prônes of Cochin, as well as on Bossuet, Bourdaloue, Fénelon, Massillon, and others. In examining the matter, the Tribunal thus came to the conclusion that, notwithstanding the few changes made by the author, the manuscript was an "almost word for word" copy of pieces contained in these various works, and which were thus "already part of the public domain" (formaient déjà une dépendance du domaine public).[9]

With regard to this composition, the selections made by Cardon in his presentation of works already within the public domain, his "hardly substantial" (peu considérables) changes and additions, did not make him a genuine (véritable) author. Thus, in the terms of the ruling of 10 August, 1812, "the major part of the work drew to itself the minor, following the legal maxim, pars major trahit ad se minorem; and since the former was already public property, the latter thus had the same status".[10] To escape this rule of accession (cette règle de l'accessoire)  and to constitute a private right on this kind of work, the judges claimed, the augmentations would have had to amount to "at least a quarter of the work". Here, the judges of first instance acted in conformity with article 2 of the Council of State's decree of 30 August, 1777 (f_1777), for the regulation of the book trade, even though this was theoretically obsolete. On the other hand, they were not simply taking an unprecedented initiative, since the Court of Cassation had itself relied on this condition some years earlier. That case had been rather different, though, and, strictly speaking, concerned only additions and supplements, where such an application was doubtless more apt.[11] The fact remains that in the first judges' opinion, it was not sufficient to "compose a work by means of the compilation of selections made from other works which have already been printed": consequently, Villeprend and Brunet were declared innocent of the crime of counterfeiting.[12]

Leclerc appealed against the decision. The court of appeal went on to confirm the original judgment by a ruling of 26 August, 1813. This stated first of all that the law of 19 July, 1793, was applicable only to those works which were "the fruit of the conceptions of genius, and not to those which were merely the copy of an older book". Productions "of the mind", as article 7 of the 1793 law put it, were not evoked alongside those of genius. Was this the manifestation of a willingness on the part of the judges to enhance, in the definition of the literary work, the threshold of protection towards a more subjective approach and requirement than the "first conception" referred to by the Court of Cassation on 3 Brumaire, Year 13 ? Were the works in question more likely to reveal the personal contribution of the author, or were they simply more "deserving", as a matter of principle, than mere compilations?

The series of legal reasons (attendus) subsequently given for the ruling did not provide convincing answers. The 1777 legislation was indeed invoked as a curious guideline in the conditional mode. If applied, its objective requirements concerning the augmentation of ancient books by a quarter would not simply have allowed Lerclerc, as Cardon's transferee, to obtain a prolongation of privilege. It remains that Cardon lacked the "genius" to go beyond the few "additions and changes" he had made, that is to produce something which could have been "regarded as a new work, in terms of its plan and of its object". In other words, a quantitative criterion of labour or investment seemed to constitute one proof of copyrightable productions of genius. This was a rather inconclusive ruling, which would obviously lead to further discussions in the following years. 

The Supreme Court would now have to settle the question, most probably having taken into consideration the conclusions of its Chief Prosecutor, Merlin.

5. Merlin's conclusions

The conclusions reached by Merlin, a prosecutor whose views carried much weight with the supreme judges, were presented on 1 December before the Criminal Division, and without a doubt proved decisive in the question of the protection of certain compilations.[13]

At the very beginning of his argument Merlin proposed the following principle. Article 1 of the 1793 law was absolute: authors could be authors of writings of any kind, and as a point of principle, this neither implied, on the one hand, that the works had to be written with aesthetic intentions alone, nor, on the other hand, did it exclude those works whose creative process paled when set alongside pure literary expression. Rather, it extended equally to all kinds of literary compositions. Thus, more specifically, the law could protect "writers who only compiled", just as it did those who "invented".[14] The rest of the Revolutionary legal mechanism flowed from this principle. Merlin recommended a similarly broad interpretation of article 7, the gist being that no one "may be considered an author, be it of a literary work or of an artistic work, if the production of the work is not due to his mind or his genius".[15]

Simultaneously setting aside in this instance the strictly quantitative article 2 of the rulings of 1777, which were deemed inappropriate - in any case, Cardon could no more claim to have ‘augmented' the work by a quarter than could Leclerc - Merlin concentrated on the issue of determining whether Cardon's act of composition had been sufficient to justify treating the work as a production of the mind. In other words, could the work of compilation undertaken by him for the Christian Readings constitute a work which was sufficiently "proper" to him?[16]

There was, in theory, no evidence to the contrary. In the attorney general's opinion, there certainly did exist "compilations of literary works which, by virtue of the immense research they presuppose, and of the discernment and taste they demand, may and must pass for genuine productions of the mind which it is no more permissible to counterfeit than if they were truly original compositions". On this showing, potentially, "to compile in this manner is not to copy, but to create; it is to act as would an architect if he were to demolish a gothic edifice and use all the material to erect a noble palace, a majestic temple".[17] In his final criticism of the Lyon court's reasoning, Merlin placed the emphasis on the composition of the compilation, which he characterized as "the fruit of taste, of intellect, of fine combinations, of ingenious juxtapositions". This was in no way comparable to "the compilation which requires only time, research, and the indefatigable patience required to copy word for word".[18]

In declaring that the law "deliberately juxtaposes with the productions of genius those works which are only productions of the mind',[19] the chief prosecutor seemed to suggest that only the productions of genius, which were "truly original", that is, stemming principally from the sole author's creativity, were susceptible to a more subjective definition of the literary work, even if intellectual labour was still sufficient to class compilations as literary works in the sense intended by the law of 1793.[20]

In reality, beyond such terms as originality, which was not conclusive per se,[21] the general and ambiguous demonstration of Merlin's argument did not allow for any single clear interpretation. Indeed, the unavoidably complex demonstration of the prosecutor and the many criteria invoked in order to draw a clear boundary between the compilation which resembled a copy, whatever "research" it might have required, and the compilation which was more "proper" to its author, sometimes indeed a genuine "creation", could not entirely exclude a more subjective approach to the conception of works, including  derivative works such as this.[22]

In any case, the important point was that it was wrong to place "all compilations on the same level" (sur la même ligne), as the Court of Lyon had done. It was necessary, that is, to take into account those compilations in which simple labour and investment of time remained intimately associated with other qualities more proper to the author: his taste, his intellect, all those criteria which seemed to make his compilation potentially more than just a series of copied passages, or which appeared to exhibit in their form and composition an arbitrary, authorial element.[23]

In this instance, then, taking into account the characteristics of Cardon's work, it would have been "a grave legal error" and a "manifest contravention" of articles 1 and 7 of the 1793 law to exclude compilations from the protection of the Revolutionary legislation.[24]

6. The Court of Cassation's ruling of 2 December, 1814: between an objective and subjective definition of the work

The judges of first instance (les juges du fond), who had excluded compilations as a matter of principle without deciding upon their character, saw their decision overruled by the Court of Cassation's ruling of 2 December. Beyond the establishment of the principle that a compilation as such could be protected, the least one may say of this ruling's definition of the work is that it was difficult to interpret. In the first of the grounds for their decision, the supreme judges thus formulated the legitimacy of applying the 1793 law's protection to collections, compilations and other works of this nature, in all instances where these works had required "in their execution discerning taste, learned selection, mental labour" and "intelligence" (dans leur exécution le discernement du goût, le choix de la science, le travail de l'esprit, [...] l'intelligence). In short, according to this series of criteria, which was doubtless not exhaustive, the work had to reveal in its form "conceptions proper to the author" (conceptions propres à l'auteur). In this type of production of the mind, more particularly, such conceptions were to be found associated with conceptions that were not his, but this did not indicate a merely quantitative criterion, such as that expressed by the royal regulations of 1777. The shared savoir-faire of a particular profession, a form dictated by necessity (the arrangement of extracts in chronological order, for instance, or in another order dictated by the nature of the texts), the mere activity of "research", though indispensable in all compilations, might thus prove insufficient. The influential chief prosecutor had indeed referred to compilations whose construction could resemble "noble palaces", genuine "creations"...

This specific labour thus allowed the Court of Cassation to sustain that the compilation could even satisfy, although based on "ancient" works, a novelty criterion. The latter had been particularly used, since a long time, in the field of privileges granted for inventions (see f_1762). In reality, this criterion could quite possibly appear in some instances as another consequence of "conceptions proper to the author", rather than as the decisive quality allowing a work to be considered a production of the mind. In other words, novelty could equally be seen as a tool, a clue[25] among others allowing for the identification not just of labour, but of that which is proper to the author in all works, regardless of what kind.

The fact remains that the criteria used to establish the principle of the protection of compilations as works of the mind, in particular novelty, were to provide general guidelines in subsequent cases in the application of the 1793 Act.

7. The implementation of the 1814 criteria

 Alongside all kinds of compilations which were potentially copyrightable, other derivative works, such as abridgements, could also qualify for protection under the law. This type of works, often made up from the substance of works already in the public domain, could indeed still bear a new form, and reveal a genuine author in the sense of the 1793 Act. As Gastambide put it, "the ordering of topics, the choice of extracts, the thought-process directing the composition, the transitions, the links, all these belong to the author of the abridgement and may not be taken from him; but the texts that he has copied or extracted from elsewhere cannot under any circumstances become his property".[26] Intellect (intelligence), a criterion already mentioned in 1814, frequently reappeared alongside the notion of labour, in order to allow derivative pieces to be considered genuine works.[27] In the same vein, the Correctional Tribunal of Paris, in a ruling that was subsequently approved by the Court of Cassation in 1845, decided that a piano playing manual, which was already in the public domain, had been reworked and augmented and was therefore "in large part the product of conceptions proper to the author, which required of him an understanding of the rules of his art".[28]

More generally, if writings of all kinds that required mental and intellectual labour or conceptions proper to their author could in principle constitute a right of property, the first judges preserved an important potential flexibility in the application of these requirements. Moreover, even if these criteria were often, at least for the first half of the nineteenth century, identical or close to the 1814 guidelines, some slight variations could occur: for example, the novelty criterion not always being explicit, or the requirement in some cases that the labour accomplished should be "personal".[29]

It remains that in practice, the legal requirement for the protection of literary productions of all kinds, which from 1814 onwards also included compilations, inevitably encouraged a relatively low general threshold of protection. 

In the round-up with which Pouillet opens his study, he indeed reports that the 1793 law's use of the phrase "writings of any kind" was to be extended to the effect that "all writings, whatever their purpose, whether it related to history, science, the arts, philosophy, business, are equally entitled to protection' (tout écrit, quel qu'en soit l'objet, qu'il ait trait à l'histoire, à la science, aux arts, à la philosophie, au commerce, est protégé au même titre). Not unlike what Linguet had claimed in 1777, and echoing English or American discussions regarding the "box office value" of a work (see, for example, us_1903), it is in some sense the public which really and solely acts as the judge of a work's merit by deciding whether to buy it or not. The legislator, Pouillet explains, has no conception of "the intrinsic value of the book" (la valeur intrinsèque du livre) and, consequently, "the author of la cuisinière bourgeoise has the same rights as Lamartine or Chateaubriand".[30] Thus, judges ultimately had to consider the protection of the "scrawniest" (chétives) productions of the mind, in Renouard's phrase, such as almanacs, address directories, price lists and other types of works including descriptive notices, commercial circulars, and so on; all literary productions which were not excluded on principle. A simple advertisement for a clysopump or even a flyer for a pharmaceutical product could be recognized as "literary works" under the terms of the 1793 Act.[31] Quoting Godson, Renouard observes that the same extendible character was attributed to the object of the right of authorship in England, and that protection was accorded to various types of compilations, guides, "collections of road and highway names, tables of logarithms, interest calculators, and other works of this sort, where they must have required a personal labour on the part of the author" (lorsqu'ils ont supposé un travail particulier de la part de leur auteur).[32]

However, in spite of the principle of their protection, compilations which seemed the least likely to reveal the labour and conceptions proper to their authors were obviously problematic:

"The same principle is still to be applied when the compilation produces an almanac or a directory, that is, one of those works whose merit lies in the arrangement of material that is already known. These certainly lie on the bottom rung of the ladder, which begins at ground level, as it were, rising up to those ethereal regions where genius soars; but we may not refuse the law's protection to these productions of the mind, however paltry, however pathetic they may seem to us. It is nevertheless understandable that contradictory decisions are to be found, one magistrate finding that quality of originality and of individuality necessary to create a right of authorship in a work where another magistrate sees no such thing. It would thus be unwise to conclude that, because judges in certain cases have refused legal protection, that protection is not provided by the law. It is in any case clear that the fact of having compiled a directory for a town or for a department which previously lacked one does not procure for the author the right to prevent another person from compiling a similar directory, from the same material, for the same locality; as always, the law concerns itself only with the form, the arrangement, the personal composition."[33]

It is true that when Pouillet was writing these lines on utilitarian compilations, at the end of the nineteenth century, the originality criterion was more often used by the judges. It remains that between an objective approach and a more subjective requirement for protection, the heterogeneous character of the object of a very specific property doubtless explains the numerous difficulties and hesitations of the judges, following Merlin, in their search for common criteria to define the work. In the awareness that the merit or aesthetic value of a work were not to be taken into account, evidence of intellectual labour and the absence of copying did of course remain, as in England, reassuring and traditional elements of the provision of legitimate protection, especially where works as compilations were concerned.[34] Deciding the true significance of, and identifying something "proper" to the author in some of these productions of the mind was in fact something of a gamble. Certainly, such a formula could suggest nothing more than that the author's contribution should be sufficiently identifiable in relation to the previous works, especially at a quantitative level.[35]

Even if in reality and practice works that represented "the mere product of labour and patience" (le simple produit du travail et de la patience) continued to be protected, from what we have seen it is quite likely that the appearance of the criterion of originality in the second half of the nineteenth century corresponded not so much to a subjective turn in jurisprudence, or to a reinforcement of the conditions of protection, as, rather, to a persistent search for a better definition of that subjective dimension as such.[36]

9. References 

Lucas, A. and H.-J., Traité de la propriété littéraire et artistique, 3rd ed. (Paris: Litec, 2006) 

Pfister, L., L'Auteur, propriétaire de son œuvre ? La formation du droit d'auteur du XVIe siècle à la loi de 1957 (Strasbourg: PhD thesis, 1999) 

Pouillet, E., Traité théorique et pratique de la propriété littéraire et artistique et du droit de représentation, 2nd ed. (Paris: Imprimerie et librairie générale de jurisprudence, 1894)

[1] E. Pouillet, in his Traité théorique et pratique de la propriété littéraire et artistique et du droit de représentation, 2nd ed. (Paris: Imprimerie et librairie générale de jurisprudence, 1894), 38, reminds us of this essential point, confirmed by the bulk of French jurisprudence: "We have established as a principle that the right of the author derives from creation; now there are certainly many different degrees of creation, and if the law only owed its protection to the Homers and the Phydiases, it might well be called a law of exception. The law does not, therefore, judge works: it weighs neither their merit, nor their importance; it protects them all, blindly; short or long, good or bad, useful or dangerous, fruit of genius or of the mind, simple product of labour or patience, every literary or artistic work is admitted and may benefit from the provisions of the law". [Nous avons posé en principe que le droit de l'auteur dérive de la création; certes il y a bien des degrés dans ce fait de création, et, si la loi ne devait sa protection qu'aux Homère ou aux Phidias, elle serait, on peut le dire, une loi d'exception. La loi ne juge donc pas les œuvres; elle n'en pèse ni le mérite ni l'importance; elle les protège toutes aveuglément; long ou court, bon ou mauvais, utile ou dangereux, fruit du génie ou de l'esprit, simple produit du travail ou de la patience, tout ouvrage littéraire ou artistique est admis bénéficier des dispositions de la loi.].

[2] For sculptures, it had been decided in the same year by the Court of Cassation (see f_1814) that they qualified for the protection of the 1793 legislation.

[3] Laurent Pfister rightly reminds us that in principle, the Court of Cassation held that it was the purview of judges of first instance "to declare by a sovereign decision whether the product brought to them for consideration could by its nature be considered as covered" by the definition of the works whose protection is guaranteed by the law of 19 July, 1793 (see the ruling of 16 May, 1862). L. Pfister, L'Auteur, propriétaire de son œuvre ? La formation du droit d'auteur du XVIe siècle à la loi de 1957 (Strasbourg: PhD thesis, 1999), 555. Magistrates were to play a particularly important role in the extension of the right of the author to cover new technologies, photography for instance: on this point, see f­_1862.

[4] For example in 1862, an "originality" criterion: see uk_1862.

[5] ["Les avantages accordés aux auteurs, par la loi du 19 juillet 1793, ne peuvent être réclamés que par ceux qui sont véritablement auteurs ; par ceux auxquels appartient la première conception d'un ouvrage, soit de littérature, soit des arts, que cette loi leur assimile à cet égard."] On this point, and on the classical French approach whereby originality was appreciated subjectively, that is, as the imprint or mark of the author's personality, see A. and H.-J. Lucas, Traité de la propriété littéraire et artistique, 3rd ed. (Paris: Litec, 2006), 72 ff; as well as our commentary on the decision of the Court of Cassation, 27 November 1869, which uses the term explicitly (f_1869).

[6] Cited by Merlin, Répertoire universel et raisonné de jurisprudence, 5th ed., (Paris: Tarlier, 1825), 5: 270 (see f_1825). See also Pouillet, 34. As Pouillet notes, "the deposit of a design of whatever kind [in this instance, the design for a bedspread] is not sufficient to give the depositor the legal standing to pursue a counterfeiting suit, if the design was merely the copy of subjects previously invented and executed by another artist" ["le dépôt d'un dessin quelconque ne suffit pas pour ouvrir au profit du déposant une action en contrefaçon, si d'ailleurs ce dessin n'est que la copie des sujets déjà inventés et exécutés par un autre artiste"].

[7] Merlin, 270. On publishing contracts, and the types of clauses that they had contained for many decades, see f_1759.

[8] Ibid. On the legislation of 19-24 July 1793, see f_1793.

[9] Reported by Merlin, ibid.

[10]This rule was criticized by legal doctrine throughout the nineteenth century. See for example A.-J. Gastambide, Traité théorique et pratique des contrefaçons en tous genres... (Paris: Legrand and Descauriet, 1837), cited in Pouillet, 62. On the subject of notes and commentaries, Gastambide explains: "There is no accession in matters of literary property. If in ordinary property the accessory follows the bulk, the accessory must still be paid for. Here, what reward can be offered to the commentator, if not an exclusive right to his work?" ["Il n'y a point d'accession en matière de propriété littéraire. Si l'accessoire suit le principal en matière de propriété ordinaire, c'est à charge de payer le prix de l'accessoire. Or, ici, quel est le prix que vous offrirez au commentateur, si ce n'est un droit exclusif sur la chose"]. Pouillet reminds us that it was accordingly judged by the Correctional Tribunal of The Seine, 13 January, 1837, that "the generality of the terms of the 1793 law implies that all works of annotation, ordering and classification, even those made to a work already in the public domain, nevertheless remain the property of the author" ["la généralité des termes de la loi de 1793 comprend tous les travaux d'annotation, d'ordre et de classification qui, bien que faits sur un ouvrage du domaine public, n'en sont pas moins la propriété de l'auteur"]. And concerning additions and supplements, the judgment of 27 February, 1845, recalled that, apart from the specific rules governing posthumous works, "the author of revisions carried out on a work which has entered the public domain is not obliged by any law to separate from the main text his own additions and changes, lest they should also become public property by some kind of accession" ["l'auteur de remaniements opérés à un ouvrage tombé dans le domaine public n'est obligé par aucune loi de séparer du texte ancien ses additions ou changements, sous peine de les voir, par une sorte d'accession, devenir propriété publique"] (Pouillet, 65).

[11] The ruling in question was made by the supreme judges on 23 October, 1806. Aside from the fact that this application bears witness precisely to the magistrates' hesitation regarding the criteria according to which the literary work might be classified, this jurisprudence was rapidly abandoned where this specific type of creation was concerned. Pouillet simply cites it, explaining in his paragraph on "additions and supplements" that "these restrictions, established, it is true, by the regulations of 30 August ,1777, have vanished with those same regulations" (Pouillet, 63).

[12] Reported by Merlin, 271.

[13] See in particular Merlin's work on counterfeiting, published in its fifth edition in 1825 (f_1825). On the man himself, Pfister recalls the powerful influence of this jurist upon the law of the period (557); cf. A.-J. Arnaud, Les Juristes face à la société du XIXe siècle à nos jours (Paris: PUF, 1975).

[14] Merlin, 272. It may be noted in passing that compilations could take on divergent intentions, including aesthetic ones, as was the case with certain anthologies.

[15] Ibid., 273. ["ne peut être réputé auteur, soit d'un ouvrage de littérature, soit d'un ouvrage d'arts, si ce n'est pas à son esprit ou à son génie qu'en est due la production"]. The nature of his composition does not necessarily make the author of a compilation a copyist, the copyist being clearly excluded as much from the traditional definition of an ‘author' (Merlin is referring to the dictionary of the Académie française) as, in a more technical sense, from the law of 1793.

[16] Ibid., 276.

[17] Ibid., 277. ["compilations d'ouvrages littéraires qui, par l'immensité des recherches qu'elles supposent, par le discernement et le goût qu'elles exigent, peuvent et doivent passer pour de véritables productions de l'esprit et qu'il n'est pas plus permis de contrefaire que si elles étaient des compositions réellement originals"].

[18] Ibid., 278. ["le fruit du goût, de l'intelligence, des combinaisons fines, de rapprochements ingénieux"], ["la compilation qui ne suppose que du temps, des recherches, et la patience infatigable de copier mot à mot"].

[19] Ibid.

[20] This is, for example, the interpretation given by Pfister, 560, to works of genius, and then to compilations: "While the former are 'truly original compositions', in that they borrow no elements from the public domain, the latter take their inspiration from pre-existing works" ["Tandis que les premières sont 'réellement des composition originales', en ce qu'elles n'empruntent aucun élément du domaine public, les secondes s'inspirent d'ouvrages antérieurs"]. Using, it seems, a more subjective approach of the "originality" criterion, Pfister then continues: "On the one hand, in the opinion of the prosecutor, protection is not conditional upon originality. Even lacking in originality, writings may still be made the objects of exclusive rights, if they are the result of intellectual labour" ["D'une part, aux yeux du procureur, l'originalité n'est pas une condition de protection. A défaut d'originalité, un écrit peut tout de même faire l'objet de droits exclusifs, dès lors qu'il est le résultat d'un travail intellectuel"].

[21] For some time during the nineteenth century, legal doctrine would get novelty and originality mixed up on several occasions (see. f_1869).

[22] Today, the originality of this sort of work, this time in the subjective sense, can be said to be incontestable: "The protection of anthologies, the express aim of articles L.112-3 (as well as of article 2.5 of the Bern Convention), is entirely consonant with the subjective approach to originality" ["La protection des anthologies, visées expressément par l'article L. 112-3 (ainsi que par l'article 2.5 de la Convention de Berne) s'inscrit parfaitement dans l'approche subjective de l'originalité"] (A. and H.-J. Lucas, 98).

[23] For this idea of the arbitrary element as a mark of originality or a more subjective definition of the literary work, see Lucas, 84-5.

[24] Merlin, 278. If this was the case, Merlin added, a compilation such as Pothier's edition of the Pandects of Justinian, could consequently have been "abandoned to the first occupier".

[25] This term is used by Lucas and Lucas in their treatise, with reference to musical works. The authors cite as an example a decision of the Tribunal de grande instance, 21 January 1977 ("a work of the mind must be original, that is, it must be distinguishable from earlier works and must bear the mark of its author's personality" ["une œuvre de l'esprit doit être originale, c'est-à-dire se différencier des œuvres antérieures et porter le sceau de la personnalité de son auteur"]) as a reminder that if in such matters the judges "reason in terms of anteriority" ["raisonnent en termes d'antériorité"], this should not be regarded as a turn towards an objective conception, but was "more of a terminological approximation, the supposed anteriority being adduced as a clue" ["plutôt une approximation terminologique, la prétendue antériorité n'étant retenue qu'à titre d'indice"] (Lucas, 121).

[26] Quoted by Pouillet, 50 ["L'ordre des matières, le choix des extraits, la pensée qui a dirigé la composition, les transitions, les soudures, voilà ce qui appartient à l'auteur de l'abrégé et ce qu'on ne peut lui prendre; mais les textes qu'il a copiés ou extraits ne peuvent devenir sa propriété en aucun cas."] Pouillet reminds us, however, that "one may not make an abridgement of a work which is not yet in the public domain without the permission of the author" ["on ne saurait faire l'abrégé d'un ouvrage non tombé dans le domaine public sans l'assentiment de l'auteur"]. (Cf. f_1845, on translations).

[27] On 22 March, 1834, for example, the Correctional Tribunal judged in relation to such derived works that "the abridgement of a work may, by virtue of its composition and the ordering of its contents, as well as the selection and nature of the extracts, constitute an act of the intellect and of industry" ["l'abréviation d'un ouvrage peut, par la composition et l'ordonnance des matières, le choix et la nature des extraits, constituer un acte d'intelligence et d'industrie"], and may thus also give rise to a right of property. In this instance, the case concerned an abridged geography textbook; the decision is reported by Pouillet, 50. As for the specific application of "additions" and "supplements", "it is sufficient that they exhibit that quality of originality, of novelty, which is the foundation of the law itself" ["il suffit qu'ils présentent ce caractère d'originalité, de nouveauté, qui est le fondement du droit lui-même"] in order for them to be considered a property belonging to their author (Pouillet, 63-4). It has been noted above that the Court of Cassation did for a time rely on a strictly and clear  quantitative criterion in this respect, that of the augmentation of the text by a quarter established in article 2 of the 1777 legislation, revealing once again a hesitation between the various criteria allowing for the identification of the authorial contribution.

[28] Correctional Tribunal of Paris, 24 April and 23 August, 1844, upheld by the Court of Cassation on 27 February, 1845. Case reported by Pfister, 564, who also draws attention to other uses of the phrase "proper conceptions", referring, for instance, to an annotated version of the works of Voltaire made by Beuchot (565, quoting Tribunal of Seine, 4 July 1835, also mentioned by Pouillet, 81-2).

[29] In particular, in the field of sculptures, from the 1830s onwards it seems (see f_1814a). See also Pouillet, 45, and some uses of this criterion, for example by the Civil Tribunal of Rouen (19 January, 1868), which referred to notes and descriptions added to pre-existing historical and scientific remarks in a travel guide which had entered the public domain. See also the ruling of the Court of Paris, 3 December, 1867 (Pataille, 1867. 404), which, having reiterated in its first consideration the notion of "a labour of the mind and of the intellect" ["un travail de l'esprit et de l'intelligence"], explained that it is "personal labour alone which may give rise to a right of property, and that it is this right so acquired that the law intends to protect, regardless of the value and scope of the text to which it applies" ["travail personnel qui seul peut donner naissance au droit de propriété, et que c'est ce droit acquis ainsi que la loi a entendu protéger, indépendamment de la valeur et de l'étendue de l'écrit auquel il s'applique"].

[30] Pouillet, 42. This rule - indifference to the merit of the work - is still applied today, despite a more explicit subjective criterion: the originality requirement. See f_1869. ["l'auteur de la Cuisinière bourgeoise n'a pas moins le droit que Lamartine ou Chateaubriand."]

[31] Correctional Tribunal of the Seine, 29 January, 1836, and 14 January, 1889, reported by Pouillet, 51. See also page 43, which cites a judgement of 10 March, 1886, where it was decided that "if the author of a manual containing the theories, commands and instructions for a mechanism (that of a fire pump) cannot prevent others from drawing inspiration from his ideas, he at least has a right of property over the form he has given them, and may forbid their reproduction in that same form" ["si l'auteur d'un manuel contenant des théories, des commandements, et des instructions pour une manœuvre, ne peut empêcher qu'on s'inspire de ses idées, il a du moins un droit de propriété sur la forme qu'il leur a donnée et peut en interdire la reproduction sous cette forme"].

[32] Renouard, 114, quoting R. Godson, A Practical Treatise on the Law of Patents for Inventions and of Copyright; with an Introductory Book on Monopolies, Illustrated with Notes on the Principal Cases (London, 1823). See also the list supplied by E. S. Drone, in A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States (Boston: Little and Brown, 1879), 153; general miscellaneous compilations (Jarrold v. Houlston, 3 Kay & J. 708), road and guide books (Cary v. Faden, 5 Ves. 24; Murray v. Bogue, 1 Drew. 353), directories (Kelly v. Hooper, 4 Jur. 21; Kelly v. Morris, Law Rep. 1 Eq. 697; Morris v. Ashbee, 7 Id. 34; etc.), catalogues (Wilkins v. Aikin, 17 Ves. 422; Hotten v. Arthur (1863), 1 H. & M. 603; Hogg v. Scott, Law Rep. 18 Eq. 444).

[33] Pouillet, 47. ["Le même principe reçoit encore son application, lorsque la compilation produit un almanach, un annuaire, c'est-à-dire un de ces ouvrages où le mérite réside uniquement dans l'arrangement de matériaux tous connus. C'est assurément le dernier degré de cette échelle, qui commence en quelque sorte au ras de terre pour se perdre au plus haut des régions éthérées ou place le génie ; mais nous ne saurions refuser la protection de la loi à ces production de l'esprit, si infimes, si misérables qu'elles nous paraissent. On comprend toutefois qu'il se rencontre des décisions contradictoires, tel magistrat trouvant à l'ouvrage ce caractère d'originalité et d'individualité nécessaire pour constituer le droit de l'auteur, que tel autre magistrat n'aperçoit pas. Il ne serait donc pas sage de conclure du refus de protection de la part du juge dans certains cas à l'absence de protection de la part de la loi. Il est bien clair au surplus que le fait de composer un annuaire pour une ville, pour un département qui n'en avait jamais eu, n'emporte pas au profit de l'auteur le droit d'empêcher une autre personne de composer avec les mêmes matériaux et pour la même localité un annuaire analogue; le droit comme toujours, ne peut porter que sur la forme, l'arrangement, la composition personnelle."]

[34] See for example Scrutton on advertising posters, directories, and compilations, in which the author who "has bestowed some brainwork" creates for himself an exclusive right of property over the product of that work (opinion of Judge Linley in the matter of Trade Co. v. Middlesborough, etc, Association (1889), 40 Ch. D., cited in T. E. Scrutton, The Law of Copyright (London: William Clowes, 1903), 116.

[35] See the reflections of Lucas and Lucas with regard to the expression "proper to its author" ["propre à son auteur"], a "handy" ["habile"] formula occasionally used by modern jurisprudence (the decision referred to is that of the Tribunal de grande instance of Créteil, First Chamber, 13 January, 1998), in particular when dealing with "small fry" ["la petite monnaie"], since "it may refer both to the absence of copying and to the mark of personality" ["elle peut renvoyer aussi bien à l'absence de copie qu'à l'empreinte de la personnalité"].

[36] For a more reserved account, however, see Pfister, who appears to make a more direct connection between the appearance of the term ‘originality' and a genuine increase in subjective thinking in jurisprudence (Pfister, 561 ff). On the appearance of the notion of originality, see f_1869.