Primary Sources on Copyright (1450-1900)
Commentary on the Rouen Court of Appeal's decision of 7 November, 1845, on translations
Faculty of Law, University of Poitiers, France
Please cite as:
Rideau, F. (2008) ‘Commentary on the Rouen Court of Appeal on translations (1845)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
1. Full title
3. Translations and other derivative works
4. The acknowledgement of the original author's interests in translations of his works
5. The idea/form distinction put to the test by translations
1. Full title
Rosa v. Girardin, Rouen Court of Appeal. 7 November, 1845
The Girardin case of 1845 enshrined the author's right to control whether and by whom a translation of his work was to be carried out. However, in condemning the translator who had published the work without the agreement of the original author, the judges remained somewhat ambiguous about the precise grounds for establishing this counterfeit - it was as if their decision to punish this offence stemmed as much from the real fact of identifiable damages, as from the infringement of the property right itself. The court's sentence also raised more theoretical questions about the nature of the permanent bond between the original work and its translation, and ultimately also about the further evolution of the idea/form distinction that had already been established in the eighteenth century.
3. Translations and other derivative works
Of all derivative works - that is, those which are based on original works - translations undoubtedly caused the most controversies. The protection of abridgments, for example, did not encounter that much opposition. When the original (or originating) work had fallen into the public domain an abridgement of it could enjoy protection insofar as, like compilations ever since 1814 (see f_1814a), it was "proper" to its author. Moreover, most legal theorists writing on the subject agreed that this type of creation was not to be undertaken without the approval of the original or originating author. This convergence of opinions was not something that one could take for granted, though, given that, as in the case of translations, the 1793 Act had remained silent about this type of intellectual product. Thus, Pouillet, a famous specialist in the field of intellectual property, argued in his treatise, agreeing fully with such influential jurists as Renouard, that there was no doubt that "the act of publishing an abridgement without the author's consent" consisted a case of counterfeit, for the simple and good reason that it "is obvious that the abridgement discloses the plan and the most important details of the work of which it is the reflection and consequently renders it almost useless or at least allows readers on the whole to do without it."  Not only was the economic loss suffered by the author as a result of this type of publication completely self-evident and permanent, but, in addition to that, the latter also entailed a clear infringement of the property right to the original work, insofar as abridgments consisted to a certain extent of basic copies of the most important elements of that work.
To return more specifically to translations, one can observe that under the privilege system of the ancien régime they were protected by royal favours, to the benefit mainly of the booksellers, since the interests of the authors of these translations could very easily be impaired by the practices of the Parisian guild of booksellers. Blondel, for example, recalled in 1725 the shameful exploitation by certain booksellers of translations carried out by Pierre du Ryer, member of the Académie française (cf f_1725). The real nature of the translation, however, was not at all to be determined easily. In connection with two privileges granted at the same time for the following two works: Nouveau Don Quichotte traduit d'Avellaneda, Auteur Espagnol, and Suite de l'Histoire de Don Quichotte, traduite de Cide-Hamet Benengeli, autre Auteur Espagnol, Pierre Huet, a Parisian bookseller, asserted, in defiance of his colleague Michel-Etienne David, his liberty to publish new translations of the same works. He accused his adversary of wanting to preserve a monopoly on the work of Avellaneda: "he could not have prevented him or any other bookseller from obtaining [a new privilege] for printing Avellaneda's translation, as long as this translation was different from that already printed by him [David]". Although the bookseller Huet acknowledged the principle that a translation could be protected by privilege, he nevertheless pointed out that the royal favours "are of narrow legal application" (sont de Droit Etroit) and "are valid only for those books for which they have been granted". In other words, under the ancien régime translations essentially belonged to the sphere of common law right, and everyone was entitled to undertake new ones from the same book, which might potentially prove to be better than existing translations, thus benefiting greatly the public and those "curious people" who enjoy reading "so many beautiful different translations of the same works." In the majority of these cases, therefore, one could deduce at most the possibility of different translations of the same work being protected, that is, recognized as independent creations worthy of protection. However, bearing in mind the enigmatic history of Avellaneda's edition - an original work that was, moreover, also frequently republished abroad - one can see that more theoretical discussions on the nature of the translation, or on broader potential interests of the original author, hadn't really been broached yet. More generally, the nature of royal privileges allowed an empiricist protection of translations, provided they bore evidence of a significant investment and labor, and that they were useful to the public interest. In this respect the debates in England would go considerably further and deeper - already from the 1720s onwards, starting with Burnett v. Chetwood (uk_1721), in which the interest of the originating author was directly discussed at the trial, forcing the parties to ask themselves with greater clarity what the distinction was between original work and translation.
It remains a fact, though, that the question as to whether a translation constituted, within the meaning of the 1793 Act, a work that could be accused of being a counterfeit of the original - that is, whether its publication amounted to an infringement of the property right of the original author or of his assignee - was one that had still to be solved in the nineteenth century. This was achieved thanks to the judges of the Court of Appeal in 1845, at a time when the theorists in this matter often contradicted themselves.
4. The acknowledgement of the original author's interests in translations of his works
The translation of a foreign work was clearly regarded as the translator's rightful literary property. The issue at hand in 1845 was, however, slightly more complicated. The judges had to determine whether the Spanish translation of a chemistry text-book that had been written in France, and published originally in Paris constituted, by virtue of its publication in France, an act of counterfeit in the sense of the 1793 Act. The Royal Court of Appeal of Rouen, quoting the revolutionary legislation and confirming fully the arguments advanced by the first judges, ultimately condemned the publisher Rosa for having published the translated edition of Girardin's work without his consent. In doing this - as the councillor Hardoin would later emphasize in his report in the Court of Cassation ruling of 12 January 1853, (f_1853) - the Court of Rouen was enshrining as a principle "that if the author is injured, the translator is responsible; that the damage suffered by the former is the reason and criterion for the latter's indictment". The judges of Rouen, in this instance, by reproducing the considerations of the first judges, did initially seem to be basing their ruling first and foremost on the reality of the damage suffered, "an encroachment by a rival" (une atteinte de concurrence). It was, however, symptomatic that the judges, though unable to deny it, did not try to truly identify the damage suffered: were there after all that many readers in France who could understand Spanish? Which part of the public was really going to be concerned by this publication to the detriment of the French edition? etc.
In fact, the magistrates themselves admitted that the potential loss of readers would probably not have amounted to very much. It seemed consequently that the objective fact of someone having seized the property of another - an infringement which in itself remained reprehensible - that was clearly also at stake here. In other words, beyond the damage caused, the very fact that this Spanish translation, a "copy", existed of the original work could be sufficient to justify the indictment of the counterfeiter on the basis of the 1793 Act. 
It was in any case this ‘translation-copy' published without the original author's consent that would again be condemned on 17 July, 1847, by the Court of Paris. Elaborating on what they understood by "copy", the judges there specified that "the translation of a French book into a foreign language necessarily means reproducing the original work, since the translator borrows the title, the subject, the ideas, the arguments, and the sentences - everything, in short, except for the language; and that it is obvious that what constitutes a work are the ideas, the order in which they are presented and their development, and not the language in which it has been written...".  Yet on the other hand, the invocation of damages caused as significant grounds for the ruling played a particularly important role in this case: "That if it is true that the translation is not intended for the same part of the public as the original work, it is no less certain than it takes away from the author, without even having sought his approval beforehand, a class of readers to whom he could have addressed himself, and that it deprives him of the profit on which he could legitimately count, either by translating the work himself, or by ceding to someone else the right of translation in exchange for suitable remuneration." As some commentators, for example Etienne Blanc in his treatise on what constituted a reprint, would specify: "there is reproduction [of the original work], and that is sufficient; but if on top of that damages have also been caused, then those damages are just not contestable. Indeed, it is obvious that the translation will divert a great number of purchasers from the sales of the original work". It remains that this persistent emphasis on the link between damages that had to be demonstrated (but were more difficult to quantify specifically than was the case with abridgements) and the principle of punishing this perceived act of counterfeit, necessarily gave rise to further theoretical discussions.
In fact, Renouard rejected any application of the 1793 Act (and of Articles 425 and 427 of the Code Pénal) to translations. Indeed, firstly, the law was silent with regard to this type of works. Secondly, as far as the damage actually suffered by the original author was concerned, "the difference in the external linguistic form [between the original work and translations] meant that no confusion or rivalry could arise". Renouard added: "The readers will probably not be the same ones. Whoever is able to understand the original is certain to prefer reading that to a more or less imperfect translation. The glory of the author and the propagation of his ideas, the popularity of his works and their prospects on the market have very much to gain by the existence of translations and nothing whatsoever to lose." For Pouillet, however, who based his arguments on the court decisions of 1845 and 1847, the silence of the law "does not prove anything": first of all, did not Renouard himself admitted without any hesitation the need for abridgments to be protected, in spite of the silence of the revolutionary legislation on that matter? As for the second reason for rejecting an indictment of counterfeit, it was simply not legally sufficient to say laconically that "the translation does not cause any damage to the author of the original work". In reality, it was not necessary to prove that damages had occurred in order to establish an offence of counterfeit, since the latter could very well exist "even in the absence of appreciable, material damages". He then continued: "Indeed, counterfeit in our view is an infringement made on the right to exclusivity (droit privatif), a usurpation of property; it is the act of seizing something, in order to profit from others' work, without their previous authorization. Counterfeiting occurs each time one uses a work that one has not made oneself, and which, without permission of the author, one seeks to turn to one's own advantage. If that is the case, then isn't it clear that the translation is a counterfeit? Isn't it the original work itself?"  Lastly, from an "extra-patrimonial" point of view, it had not been forgotten that the original author's control over the translation could be legitimately derived from "his moral interest, the care he takes in his own reputation and glory". In short, since it was a violation of property that was first and foremost at issue here, the question of damages and their evaluation was no more than a simple matter of fact, not of principle.
Taking into account these theoretical confrontations, the ambiguous formulation of the judges in 1845 becomes all the more comprehensible, although, by only explicitly recognizing a not very significant damage, they seem to have already been heading in the direction pointed to by Pouillet's analysis. In remains that acknowledging in practice the reality of an infringement or of the damages caused to the author's property, as a result of the non-authorized translation of his work, meant going beyond the more traditional eighteenth-century approach to the crucial distinction between idea and form.
5. The idea/form distinction put to the test by translations
As we have seen, the Rouen judges of 1845 described the translation as a kind of ‘copy' of the original work. The latter, to use the more explicit terms invoked by the judges in July 1847, consisted of the author's ideas, "the order in which they are presented" and not the language. For this very reason, and also because the damage suffered was clearly quantifiable in this instance, it was determined in 1853 that the staging of a French opera, translated into a foreign language without the authorization of the author of the original libretto and the composer, constituted an act of counterfeit unless it took place with the approval of the authors. Significantly in this case, the arguments invoked by the lawyers in their appeal ["pourvoi"] against this judgment of the Court of Appeal, in order to defend their clients, revolved around the idea that the 1793 Act supposedly "protected only the writing itself" and not "a more or less accurate translation of a literary work". This way of arguing was characteristic of the earlier definition of a literary work which went back to eighteenth-century concepts. The idea/form distinction, so appropriate for defending the incorporeal dimension of the object of the literary property, was to be applied particularly rigorously at the time, in the context of the battle waged between the Parisian and the provincial booksellers. Its strict application made it possible not only to regard the translation as worthy of protection, but also to perceive it as technically different and independent of the original work. Indeed, who could have denied, even at that time, that every author has his own particular style, insofar as the structuring of his words, sentences, expressions, their sequence, and the choice of their arrangement are inevitably - even "mathematically", so to speak - most definitely personal and original. But on the other hand, looking for a work's distinguishing features in its "substance", in its "essence" or "intellectual contents", rather than in its direct formal incarnation, without, though, defending any sort of monopoly on ideas, would give rise to even more complicated theoretical questions. From this point of view, the ‘traditional' distinction between idea and form was marred by certain flaws, insofar as it did not allow the interests of the original author to be recognized fully. As B. Sherman and L. Bently have argued, it depended on the goodwill of the law to extend the "ambiguous" and "enigmatic" nature of the intangible object of intellectual property beyond the directly specific form in which the work (and the invention) manifested itself.  In order for the right of exclusivity to be more profitable economically to the original author, especially when it could not be denied that he would suffer damages, it seemed essential not to restrict this right to the mere prohibition of publishing an identical copy, but to recognize more broadly the range of interests of the creator, as well as those of the investor in the original edition: "Rather, what was needed was that protection also be given over non-identical copies, to copies that were in some sense similar".
In 1853 the Court of Cassation rejected finally, very much in the sense of the 1845 Girardin decision, the appeal mentioned earlier ["pourvoi"], for the reason that, in addition to the importance of music in the given case, "the translation of French into Italian puts but a negligible difference between the two works". Similarly, in 1862 the Court of Paris would recall that the "general characters" which make it possible to identify a counterfeit by comparison to the original work are "the identity or the similarity of the subject, of the thoughts and the expression". Thus, as soon as the legal protection of works was extended to include abridgments and translations, the very nature of the incorporeal object of literary property could develop further in significant ways.
Blanc, E., Traité de la Contrefaçon en tous genres et de sa poursuite en justice (Paris: Henri Plon et Cosse, 1855)
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)
Renouard, A.-C., Traité des droits d'auteurs, dans la littérature, les sciences et les Beaux-Arts, vol. 2 (Paris: Jules Renouard & Co., 1838)
Sherman, B. and L. Bently, The Making of Modern Intellectual Property Law (Cambridge: Cambridge U. P.,1999)
 E. Pouillet, 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), 506 and in the same sense A.-C. Renouard, Traité des droits d'auteurs, dans la littérature, les sciences et les Beaux-Arts, vol. 2 (Paris: Jules Renouard & Co., 1838), 30. ["dans le fait de publier un abrégé sans le consentement de l'auteur", pour la simple et bonne raison qu'il "est évident que l'abrégé fait connaître le plan et les détails les plus importants de l'œuvre dont il est le reflet et par suite le rend à peu près inutile ou tout au moins permet, dans une large mesure, de s'en passer."]
 Losses suffered on literary works as a result of additions, corrections, or notes were supposed to be as obvious as in the case of abridgments: E. Blanc, Traité de la Contrefaçon en tous genres et de sa poursuite en justice (Paris: Henri Plon et Cosse, 1855), 175. In his discussion of abridgements this same author also says (176): "Abridgments must be proscribed by the courts with all the more severity, given that they establish a more frightening competition for the author, since they reproduce the essential part of his work and sell more readily". ["Les abrégés doivent être proscrits par les tribunaux avec d'autant plus de sévérité, qu'ils établissent une concurrence plus redoutable pour l'auteur, puisqu'ils reproduisent la partie essentielle de son œuvre, et qu'ils se vendent à meilleur marché."].
 Pierre Du Ryer (1606-1658) was the author of a number of plays and comedies.
 Mss. Fr. 22072, n° 39, fol. 119: "Mémoire pour Pierre Huet, Libraire à Paris contre Michel-Etienne David, aussi Libraire à Paris."
 Ibid. ["il n'auroit pû l'empêcher ni lui ni tout autre Libraire d'en obtenir un [un nouveau privilège] pour l'impression de la traduction d'Avellaneda même, pourvû que cette traduction eût esté differente de celle qu'il a imprimée"].
 Ibid. ["sont de Droit Etroit" et "n'ont d'effet précisément que pour les Livres pour lesquels ils ont esté accordez"]
 Ibid. On this question, see also f_1690s.
 2 Mer. 442. Like the bookseller Huet with his invocation of the freedom of translation to the benefit of the public, the defence in Burnett v. Chetwood insisted on the fact that the Statute of Anne (uk_1710), whose overall purpose was to encourage the diffusion of knowledge, applied to the mechanical reproduction of works, but could not serve as an obstacle to the distribution of a translation of an original work. The arguments regarding the nature of the translation went even further here: the latter was a different work, "which in some respect may be called a different book, and the translator may be said to be the author, in as much as some skill in language is requisite thereto, and not barely a mechanic art, as in the case of reprinting in the same language; that the translator dresses up and clothes the sense in his own style and expressions, and at least put it into a different form from the original..."
 See the Court of Paris, 30 April 1824, reported by Pouillet, 518.
 Dalloz 1853.1.83 (f_1853). ["que si l'auteur est lésé, le traducteur est responsable ; que le préjudice éprouvé par l'un est la raison et la mesure de la condamnation de l'autre"]
 f_1845a (Dalloz 1846.2.212) ["...quoique dans une proportion peu importante..."]
 Ibid. : "et étant la traduction ou la copie des Leçons de chimie élémentaire".
 Decision reported by E. Blanc, 177. ["la traduction d'un livre français en langue étrangère reproduit nécessairement l'ouvrage original, puisque le traducteur en prend le titre, le sujet, les idées, les arguments et les phrases, tout, en un mot, excepté la langue, et qu'il est évident que ce qui constitue un ouvrage, ce sont les idées, l'ordre dans lequel elle sont présentées et leur développement, et non l'idiome dans lequel il est écrit..."]
 Ibid. ["Que s'il est vrai que la traduction n'est pas destinée à la même partie du public que l'ouvrage original, il n'en est pas moins certain qu'elle enlève à l'auteur, sans l'assentiment duquel elle a lieu, une classe de lecteurs à laquelle il aurait pu s'adresser, et qu'elle le prive de bénéfices sur lesquels il pouvait légitimement compter, soit en traduisant lui-même son ouvrage, soit en cédant, moyennant rétribution, le droit de le traduire."]
 Ibid. ["il y a reproduction, cela suffit, s'il y a, d'ailleurs, préjudice causé: or le préjudice n'est pas contestable. En effet, il est évident que la traduction enlèvera au débit de l'œuvre originale un grand nombre d'acheteur"]. In their decision of 7 November, 1845, the judges clearly assumed the contrary.
 Renouard, 38, extract reported by Pouillet, 516. ["la différence de forme extérieure du langage empêche qu'il ne s'établisse ni confusion ni rivalité."] ["Les lecteurs ne seront probablement pas les mêmes. Quiconque sera capable de comprendre l'original ne manquera pas de le préférer à une traduction plus ou moins imparfaite. La gloire de l'auteur et la propagation de ses idées, la popularité de ses productions et leurs chances de débit ont tout à gagner par l'existence des traductions et n'ont rien à y perdre"]
 Pouillet, 516. ["la traduction ne cause pas de préjudice à l'auteur de l'œuvre originale"]
 Ibid. ["même en dehors d'un dommage matériel, appréciable."] ["La contrefaçon, en effet, est pour nous l'atteinte portée au droit privatif, l'usurpation de la propriété ; c'est le fait de s'en emparer, de profiter du travail d'autrui, sans son autorisation. Il y a contrefaçon, toutes les fois qu'on prend une œuvre qu'on a point faite soi-même, et que, sans permission de l'auteur, on la fait tourner à son propre profit. Si cela est, n'est-il pas certain que la traduction est une contrefaçon ? N'est-ce pas l'œuvre originale elle-même?"]
 ["son intérêt moral, le soin de sa réputation et de sa gloire"] Pouillet, 517-18, who noted, thereby concluding somewhat paradoxically his demonstration on the ground of damages, that Renouard himself acknowledged the weaknesses of his position with regard to certain types of works, namely purely scientific works, especially those whose value lay in their contribution to knowledge rather than in their ‘language'.
 Cf. f_1853 (D. 1853.1.82). This decision is sometimes quoted as recognizing the translation without the approval of the author as a counterfeit. G. Massé in the footnotes of the Dalloz edition referred to here argues, however, that the production of a work on the stage posed more specific problems. Indeed, the stage performance itself, the additional personal work that it involved in comparison to the original work, the "scenic effects", justified even more, to some extent, the need to obtain the authors' approval. These choices, which were effectively of a moral nature because they impinged on the presentation of the written work, had to be made by the original creator, and not by the translator.
 f_1853 (D. 1853.1.83). ["protège que l'écrit lui-même"] ["une traduction plus ou moins fidèle d'une œuvre littéraire"]. We can recall the intervention of judge Willes in Millar v. Taylor, who seemed to confirm the total autonomy of the translated work: "Certainly bona fide imitations, translations, and abridgments are different; and in respect of the property, may be considered as new works: but colourably and fraudulent variations will not do" (Millar v. Taylor (1769), 4 Burr. 2310).
 This coherence was fundamental, in particular for the booksellers of the capitals when defending their monopoly on the works. Let us indeed recall that without this, it was in fact the ideas, as in matters regarding inventions, which were in danger of being monopolized to an even greater extent (cf. f_1776 and f_1778). As the French jurists were well aware, the English were very much more advanced in regard to this question (cf. Hargrave's Argument in Defence of Literary Property, uk_1774a).
 B. Sherman and L. Bently, The Making of Modern Intellectual Property Law (Cambridge: Cambridge U. P.,1999), 55.
 Ibid. In England, therefore, this increased dematerialization of the copyright subject matter called for a broader designation: from the traditional, statutory "books" to "literary works" (a shift which was obviously difficult to translate as strictly in French, especially in view of the common use of 'oeuvre').
 ["la traduction du français en italien ne met entre les deux pièces qu'une différence insignifiante"]
 Pouillet, 522, reporting on the judgment of the Court of Paris of 17 June 1862. ["caractères généraux" qui permettent d'identifier une contrefaçon par rapport à une œuvre originale" sont "l'identité ou la similitude du sujet, des pensées et de l'expression"] In this case, it concerned an examination of the question of counterfeiting one translation by another. This identity or the similarity of the subject, the thoughts and the expression could thus "when it concerned a translation not be taken into consideration to the same degree, since between two translations there will be inevitable resemblances, both being reproductions of the same text and presenting the same ideas in the same order and often rendered with the same expressions; it consequently follows that a second translation can only be considered to be a counterfeit of the first if it displays something else apart from the forced resemblances which are the essence itself of the subject on which the two translators worked: in particular, the fact that the second translator took the first translation as a starting point does not imply a counterfeit when the borrowed parts are besides very few and of little importance". ["quand il s'agit d'une traduction, être pris au même degré en considération, puisque entre deux traductions il y a des ressemblances nécessaires, l'une et l'autre étant la reproduction du même texte et présentant les mêmes idées dans le même ordre et souvent rendues avec les mêmes expressions ; il suit de là que, pour qu'une deuxième traduction soit une contrefaçon de la première, il faut qu'elle présente autre chose que les ressemblances forcées qui sont de l'essence même du sujet auquel ont travaillé les deux traducteurs : spécialement, le fait que le second traducteur se soit inspiré de la première traduction n'implique pas la contrefaçon quand les emprunts sont d'ailleurs peu nombreux et peut importants"].