Translation by Maria de Bragança Campilho

In Portugal, the highlight of the discussion on copyright only occurred in the first half of the XIX century. Much later than in other European countries, such as England and France, which by then had already legislated on the matter. Recently moving from a system based on privileges[1], Portugal was only able to produce a law on authors’ rights in 1851, when an international treaty with France was initiated and a decree on the matter was enacted.

The moment such legal instruments came into force in the Portuguese jurisdiction, a theoretical collusion between two of the greatest Romanticism authors started: Almeida Garrett, drafter of of the bill, as well in charge of the political negotiation of the treaty with France, and Alexandre Herculano, a strong opponent to any laws on literary property. The controversy between the two, who at the time were good friends, involves considerations that are still accurate. A parallelism between those days and modernity can be set out: by then the increase of production of cultural goods lead to the approval of legislation on copyright and nowadays technological innovation plays an important role in the distribution of such goods.

For these reasons it is important to evaluate, in a critical way, the theoretical considerations of each writer and analyze the considerations used 150 years ago as they are relevant for the study of the influence of technological innovation in copyright. 

Well known and studied for his important literary work more than for his legal contribution, João Baptista da Silva Leitão de Almeida Garrett, the Viscount of Almeida Garrett (1799-1854), graduated in law from Coimbra University. He was a writer and a playwriter, besides holding prominent public positions as senator, minister and honorary secretary of state.

The troubled political scenario in Portugal during the first decades of the XIX century imposed Garret three exiles: in Terceira Island (in the Azores) when he was twelve, due to the French invasions, returning in 1816; at the age of twenty four to England and later on to France as a result of the coup of 1823 (following the Vilafrancada Revolution), returning to the mainland in 1826; and at 29 years old again to England, France and Terceira Island at last, where he fought in the liberal army that overthrew the absolutist regime of D. Miguel in 1832.

These periods, especially in England and France, provided the Portuguese writer contact with the existing literary and legislative trends in such countries, as mentioned by Luiz Francisco Rebello.

Back into Portuguese territory, Almeida Garrett, by then a senator, was responsible for the first legal project on literary and artistic property presented before the parliament in May 1839.

Garrett´s project intended to align the Portuguese Laws with the existing ruling on copyright in other nations. As such, the Viscount mentioned that, for more than two years, he dedicated himself to the research on this subject and the way it was treated in different countries, like England (Queen Anne Statute of 1710), Denmark (Law of January 7^th 1741), France (Decree of the National Convention of July 19^th 1793), The Netherlands (Law of December 8^th 1796), Belgium (Royal Resolution of September 23^rd 1814) and Germany (Vienna Act of June 8^th 1815, Dieta of April 2^nd 1835 and Law of November 9^th 1837). After these profound studies, the text summited before de Senators Chamber in May 18th 1839, held a great similarity with French legislation (the last version of the French model had been presented before the Peers Chamber four months before the Portuguese project).

Garrett sustained a concept of property considered to be progressive in light of the Portuguese society at the time: regarding literary and artistic works, the perpetual feature would be removed from the characteristics usually assigned to such institute (inviolability, transfer and perpetuity). This way, by assuring the rights over the works only for a limited period of time, the tension between authors´ prerogatives and the society’s rightful access to creations would be balanced.

The technical-legal critics pointed out to the temporary feature of the literary property had already been foreseen by Garrett. His report of the legal project presented before the Deputies Chamber contained allegations to strengthen the perpetual characteristic of such specific property right. Society, held the Viscount, should be entitled to access the works as an essential way to acknowledge and to bring prestige to the authors. Without the participation “of those to whom it communicates to”, literary works would not be recognized nor any value would be ascribed to them.

Garrett´s allegation, in a peculiar way, opposed to the one usually used in a sense that social environment cooperates with the author thru the cultural background accumulated by generations and is a decisive piece in the creation process. The Viscount sustained that the role of social culture was subsequent and not previous to the creation and therefore perpetuity was not justified. The best solution, in these circumstances, was to protect the author’s rights during his lifetime and for a limited period after his death. Exhausted the time period of protection, it would then be given society the right to fully access the works in whose creation process it had collaborated with.

Garret reasserted Portugal’s delay regarding the protection given to the creators of the works, as well as the failure of the privilege system in recognition of copyright. This was the highlight of his project, regardless of the relevancy of the theoretical considerations he used, as pointed out by Maria de Lourdes Lima dos Santos.

Although it had been approved by the Senators Chamber in 1841, the law would only be published in July 18, 1851, when the political scene established by the Regeneration allowed it, following a formal request made by Garret to the Queen, Maria II. As he had received by the Queen herself the mission to negotiate with France a bilateral treaty regarding the protection of literary and artistic work, Garret asked the monarch, in June 29, 1851, for the publication of the text approved more than ten years earlier, emphasizing the need of an existing previous national law on the matter, in order to carry out the treaty with France.

The new Portuguese law foreseen the protection of copyright and clearly stated the temporality of the right of exploitation of the work in its initial articles.

Besides the copyright regarding literary work, the law of July 1851 also covered the protection given to the creation of drama work, to artistic drawing and musical works. The law also anticipated important ruling on registration proceedings, criminal sanctions in case of non-compliance, and on the protection of foreign authors in the Portuguese territory. This law remained in force until 1867, when copyright and related rights were included in the Civil Code drafted by the Viscount of Seabra.

The Portuguese landscape in the first five decades of eight hundred was extremely adverse when it comes to national authors, as their works were indiscriminately reproduced by counterfeiters (mainly Belgian and French). However, it is important to enhance that the main argument which lead to the creation of a special rule to protect literary property was not the need to protect the literati. With the increase of the demand for cultural goods, manly books, a real “literary industry” arose, operating in a large number of economical sectors whose viability was threatened by the piracy of those works. In such new and flourishing market, the most important part was not the author, but the editor who controlled the production means that allowed the publishing of literary works.

In this situation, the commercial attention raised by the Brazilian book market was extremely important in the approval of Garret’s legislative project, as well as in the deployment of the bilateral treaty with France. At the time, in Brazil it was common practice to publish works, especially Portuguese ones, without mentioning their authors and consequently not paying those rights, also harming editors and booksellers.

The legal protection given to copyright by overcoming the former privilege system had, as a background, more of a liberal view of free (and slightly loyal) competition between editors in such increasing market, than the protection of creators which were closer to be considered as employees instead of independent professionals.

The privilege system was linked to the Absolutism Regime. When superseded it gave place to a political, social and economic environment favorable to a general norm (positive law) rather than authorizations based on the monarch’s opinions. Garrett and his followers found the ideal circumstances for ruling all the players’ (author, editor and bookseller) actions in this scenario, helping the literary industry and, in the long run, finding a way for the survival of the literati.

Alexandre Herculano de Carvalho e Araújo was born in 1810, in a poor family, and was greatly inspired by his father’s ideas of liberalism. As Almeida Garrett, he grew up in a time of great political turmoil in Portugal. The first half of the XIX century witnessed the French invasions, the flight of the royal family to Brazil, guerrillas, revolutions, a first Constitution (1822) and even an absolutist monarchy.

In 1832, coming back from an exile in England as a consequence of his opposition to the absolutism regime of D. Miguel in defense of the liberal cause, Herculano moved into a public career as a librarian. He was also a journalist, a poet, an historian and held a mandate as senator. He was also a renowned writer of the Portuguese Romanticism with published articles and books that had strong impact on arts and science. He finished his days in a farm in Vale de Lobos, where he lived for ten years and dedicated himself to agriculture, his passion. He died in 1877.

His life perception and the ideology he stood for were influenced by the liberal revolutionary context he was raised in. In his biography, one can emphasize a moderate position between socialist and the defense of a capitalism free from state control.  

The Convention held between Portugal and France in 1851, that devoted the literary property doctrine, was the main trigger for Alexandre Herculano to express his ideas in his writings, especially because his name had been conveyed by Garrett as a supporter of that Convention. By a letter addressed to Garrett, Herculano made clear that himself and the Viscount, two icon writers from the Portuguese Romanticism period in the first half of the XIX century, did not share the same opinion on the possibility of conceiving artistic and literary works as an object of property.

When elaborating his opposition against Almeida Garrett, Herculano asserted that property right related, only, to material and tangible goods. This writer supported a pure concept of property, which did not include non-material or non-tangible assets. As such, the concept would substantiate the right to a financial value originated in the work itself.

In literary works, the value that Herculano referred to, only materialized after the printing process. Therefore, a book would be the result of “esforços combinados do escriptor, do capitalista que empregou o capital para a sua publicação, do fabricante de papel, do compositor, do impressor, etc” and from those efforts, all combined, would emerge the trading value of the book that would be shared by all of those who contributed for its creation. However, it is important to emphasize that this Portuguese writer did not despise the existence of intellectual work.He only considered that such work was not able to generate the right to property. These considerations were based on his ideas on the differences between material and non-material work, both present in the process of creating a book.

Herculano’s definition of material work included a large range of activities developed by the author, such as studies, trips, researches, experiments, hours of writing: all of which visible. It is a very wide concept, aimed to include all the substantive and tangible efforts.

On the other hand, the non-tangible efforts would transcend the physical activities in order to embrace the inspiration, something prior to and sublime when compared to the material work. In this writer’s words they included.

Because they were unreachable by the notion of property, the creations of the human spirit - reflected in acts, techniques, speeches or even ideas - could be freely copied by everyone without any violation of the real property rights granted to authors. 

It is traceable the influence of Romanticism in Herculano’s considerations as he considered the author as someone illuminated and able, in his inspirational moments, to establish a link with the divine and the transcendental. It is an idealization of the creation process, conceived more as a sort of priesthood than as a professional practice and as such inconceivable of remuneration emanating from the industry.

The compensation of this priesthood, impossible to measure economically, would be the recognition given by society, the glory of the author. However, we must underline that Herculano was aware that the poor or non-existent financial consideration given to the creation work was a barrier to the author’s dedication to this highly considered profession. He only opposed to the literary property doctrine as a solution to the problem.

Alexandre Herculano thought of a system of legal public rewards (literary prices, academic pensions, public positions to be given only to literati) instead of literary property, using as an example, the French system. The Portuguese writer argued that authors were so important for the progression of civilization, that society should recognize them by creating the adequate financial conditions to those whose production activity was essential for the cultural development of the community.

Herculano, in his criticisms, also invoked the principle of equality: the authors of literary works should not differ from others, equally able to create. As such, a special property right, inherent to their condition, should be given to them. Specifically, the Portuguese writer accused the defenders of literary property (including Almeida Garrett) of being corporative: by forcing a legal conception with no theoretical grounds, they would act exclusively in defense of their own right which, in the end, was similar to the former privilege system, established only to favor a specific group of individuals.

In this matter the Portuguese poet’s argument was contradictory: on one hand he sustained that the author was someone illuminated, whose immaterial effort would transpose him into a level above the ordinary professional, and, simultaneously, argued that the author was not worthy of a special legal protection.

Although he opposed to the literary property, Alexandre Herculano did not considered to be fair, the free reproduction of works without mentioning their authors’ names. In an article published in O Panorama in 1843, years before the dispute with Almeida Garrett, he clearly stated his position on the counterfeiting that was taking place in the Brazilian territory.

Like the compilation of his literary work, which sometimes resented “of excess of romantic idealization”, Alexandre Herculano’s conceptions on literary property concealed some detachment from the objective and practical reality. In fact, the literary market at the time, was ruled by liberal principles (that Herculano himself defended) considered to be necessary for selling the works was irreconcilable with the ideas of the Portuguese writer. With an unrealistic implementation, as he would recognize in one of his other writings, the setting of minimum ruling on the financial considerations regarding the work of authors engaged in the creation process and the circulation of books, would hardly fit into a system of public rewards or remuneration only established in relation to the selling of a physical copy.

Besides the distinction between material and immaterial work, Herculano opposed Garrett with another allegation that contradicted the literary property doctrine, namely by attacking its temporary nature. It is relevant to underline that Herculano devised as legally unacceptable, the relativisation of property’s right by displacing one of its main characteristics: perpetuity. Therefore, if authors were really entitled to their works such rights should be perpetual. If not, we would not be in the presence of a real property right from a legally logic point of view.

Essentially, Herculano’s conceptions matched literary property to intellectual property: a kind of imperfect property, non-capable of defense given by law or logic. If it were to be admissible, it would only be as a pragmatic conception or with a utilitarian nature, as an exemption ruling.

From the argumentative dispute between Almeida Garrett and Alexandre Herculano on the literary property doctrine it is possible to extract considerations that remain accurate in today’s debates on copyright in Portuguese Speaking Countries.

Since the beginning, the defense carried out by Garrett regarding the need to regulate the reproduction and exploitation of literary works held an important objective characteristic: those who dedicate themselves to writing are real professionals. This means that they earn a living from such activity.

Indeed society recognizes a romantic aspect in the creative process, cultivating the idea of genius and originality, but it is also certain that the one that creates is still human, with real and tangible needs, as anyone else. His distinctive occupation does not exempt him from the daily mundane demands, such as feeding, dressing or sustaining his family. As such, the concern with the definition of the legal rules on the financial compensation of the creative work reflects a professionalism inherent to this activity and assures that authors remain continually dedicated to innovation. Without a clear and objective perspective of economic payback, surely it would be impossible to prevent authors to leave their profession and migrate to other activities in order to provide for their subsistence.

In favor of such objective vision of reality Garret himself admitted, within the scope of a legal theory, that the use of the term “literary property” would not be the most accurate as it did not comprise “all attributes that, in strictly a legal sense the common property should have”. However, applying to that specific situation, he sustained that the discussion did not held the power to alter the experience of those who made a living from literary production and that daily saw their works being broadly used with no authorization or financial retribution whatsoever.

Opposing to the enhance of author’s protection, the idea of free movement of knowledge as the crucial fuel of the progress of mankind, was present in Herculano for whom the work originated in the mind was a public good that should be freely used.

The theoretical-legal conception drawn by Herculano against an objective literary property, hence indirectly, intended to warrant the progress of civilization through free appropriation of ideas in a way that cultural evolution was not plastered with legislation considered to be an exception.

Nowadays, with the massive spread of knowledge thorough the internet, we can identify a movement contrary to the increase of copyright protection justifiable in the mandatory cultural process of mankind, just as Alexandre Herculano sustained. With a new clothing, the discussion that for decades was focused in professional authors is now centered on the globalization of knowledge. As such, the internet can led people, common citizens, to a role beyond mere consumers, allowing them to be creators as well. Evolving this topic now, would be to go beyond the historical aspects of the discussion between Almeida Garret and Herculano.

As a conclusion, we can sustain that the discussions on copyright and related rights in society nowadays carries out a conceptual analysis that essentially refers to the same existing perception on law, since the XV century. It crosses the discussion of the great Portuguese writers, from the XIX century until modern days.

The debate on the definition of property applied or not to artistic creations is still criticized by the legal doctrine. The misunderstanding of philosophical arguments even now is vibrant, from the major discussion featured by two significant Portuguese scholars of the XIX century up to contemporaneity.

Commentary by Victor Drummond & Translation by Maria de Bragança Campilho