Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: s_1837a

Commentary on the Royal Order on the Representation of Dramatic Works (1837)

José Bellido (Birkbeck College, University of London)

Raquel Xalabarder (Universidad Oberta de Catalunya)

Ramón Casas Valles (Universidad de Barcelona)

Please cite as:
Bellido, J., Xalabarder, R. & Casas Valles, R. (2011) ‘Commentary on the Royal Order on the Representation of Dramatic Works (1837) ” in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

 
1.  Full title

2.  Abstract

3.  Liberalism & Property    

4.  What is an Author here?  

5.  Dramatic Copyright

6.  Contested spaces     

7.  Towards the Law of Literary Property (1847)

8.  References

1. Full title

Royal Order on the Representation of Dramatic Works (1837)

Full title original language

Real Orden para la representación de obras dramáticas (1837)

2. Abstract

The Royal Order of 1837 inaugurated a threshold of regulation in Spanish copyright law. By giving ownership control to dramatists, the order has been hailed as the birth of modern dramatic copyright law inSpain. Its promulgation also facilitated the development of copyright as a positive right. In fact, the Royal Order is an early episode in which we can perceive a very particular conceptualization of the author and his or her work; an iterative moment in which historians often tends to signal the emergence of the professional dramatic author. The commentary explores the influence of Spanish liberalism in the development of dramatic copyright. In doing so, it situates the Royal Order in the specific context in which it emerged and attempts to identify the conditions of possibility for the appearance of Spanish theatrical copyright in the 1830s. It pays particular attention to dramatic works’ transition from privilege grants to rights on literary property. 

3.  Liberalism & Property 

It is not a coincidence that new views of copyright emerged with the development of liberalism in Spain.[1] Changes in political sovereignty affected the way in which (intellectual) property was conceptualized.[2] Privilege and honour were substituted by law and merit.[3] Market freedom replaced economies of gift.[4] Furthermore, the basic liberal kernel (private property) became rapidly embedded in vocabularies of labour and exchange. While physical land was left to a process of desamortizacion,[5] intellectual property was subjected to a progressive codified setting.[6] In the latter’s development towards rights’ regimes, the link between land and copyright became instrumental since, as Lisa Surwillo has recently suggested, “propiedad literaria was not literally land, but it functioned figuratively as if it were”.[7] The functional analogy between land and copyright was strongly sealed by - and through - the metaphor of cultivation.[8] The freedom of cultivation, suppression of guilds and abolition of seigneurialism not only transformed the nature of land[9] but also the idea of copyright in Spain. Intellectual property was no longer a privilege but a right to be protected.[10] 

In this progressive development, Regency periods (1833-1843) provided the most permissive environment in which liberal policies and theatrical freedoms began to materialise.[11] After the death of Fernando VII, his widow María Cristina “launched a campaign to liberalize the country”.[12] Her permissive impetus not only prepared the terrain for legislative reforms but was also a condition of possibility for the emergence of deliberative spaces.[13] Perhaps the clearest example of the domestic controversy between advocates and opponents of literary property can be seen in a number of articles published in two Spanish newspapers: Boletín de Comercio and El Vapor.[14] What makes such an exchange of defences and critiques and arguments for and against literary property particularly interesting is not their content but the medium through which the cluster of arguments were circulated. The exchange of views constituted a historical sample of the increasingly frequent use of newspapers as vehicles to foster public discussions on the specific nature of literary property. Newspapers monitored and offered daily scrutiny of royal and governmental measures and had a generative power to facilitate these measures.[15]     

 4.  What is an Author here? 

A singular snapshot of the discursive struggle for the recognition of dramatic authorship and theatrical property can be found as early as 1832, when literary and theatre critic, Mariano José de Larra (1809-1837), put forward the topic of copyright in several sarcastic interpellations. The way in which he questioned copyright represented a forceful attempt to link dramatic authorship and property.[16] By making this connection, Larra curiously anticipated a sensational title made famous one century later by Michel Foucault (1926-1984).[17] Moreover, he did so by taking into account the domestic peculiarity of the theatrical scene including a concrete geopolitical injunction. His essays - “What is an author of a comedy here?” and “Who is an author of a comedy here?”-[18] were satirical sketches that emphasized the need for recognition of authorship and more importantly, the need to secure property rights in relation to dramatic copyright.[19] In this sense, it is hard to imagine a more concrete and direct manifesto against piracy.[20] Instead of reflexive essays, these texts could be more appropriately understood as direct attacks on public opinion.[21] With an arsenal of rhetorical exercises, Larra tried to convince his readers of the embarrassing situation in which Spanish theatre found itself.[22] When he wittily condemned the circulation of unauthorised dramatic works, he did not follow the traditional line of attacking piracy on moral grounds. He appreciated the different materiality embedded in the production of piracy. He proceeded to criticise the imperfect substitutability between copies and originals. His comments were clearly aimed at caricaturing pirate copies, printed on low quality paper, without license, and with modifications and mutilations to the original text.[23] In a gesture that also pre-empted modern copyright distinctions, he controversially vindicated his particular view on originality that claimed the possibility of appropriating “ideas”.[24] Larra killed himself just a few months before the Royal Order for the recognition of dramatic works was issued.[25]

A second remarkable twist in the trajectory of dramatic copyright can be located in another contingent (journalistic) event the publication of reviews of the theatrical hit of the moment,[26] the references to the “most talked-about play of the season”,[27] a play written by Antonio García Gutiérrez (1813-1884).[28]  At first glance, it may seem odd to focus on theatrical reviews as the turning point in the history of copyright law. From a legal point of view, such types of ephemera frequently lack any relevant character. However, recent literary scholarship has convincingly argued that the news of a successful premiere somehow influenced the reconceptualisation of the author in Spanish dramatic copyright.[29] In fact, the premiere of the revolutionary play (El Trovador) provided an occasion in which the catalysing force of Romanticism in the history of Spanish copyright law could be made explicit.[30] The romantic narrative of a poor and marginal author in search of an audience and legal recognition was often cited by literary critics.[31] More interestingly, a very specific theatrical practice fed interest in the need for dramatic copyright. The connection between Spanish Romanticism and copyright was made powerful by the “call” of the author.  After theatrical performances, playwrights began to be called onto the stage in order to receive the applause of the public.[32] Moreover, this call appears to have had a normative value. When the playwright was called to take centre stage by the Romantic creed;[33] when he began to receive ovations and audience cries of “Author!, Author!”, and when the story of the unfortunate author was dramatically “told” and also linked to the lack of copyright legislation,[34] one could have suspected that the articulation of authorship and dramatic copyright in Spain was about to change.[35]

5.  Dramatic Copyright

On 4 February 1837, almost a year after the famous premiere, the issue of copyright for theatrical works was brought to the attention of the Queen Regent, María Cristina.[36] A commission had been previously appointed in order to study the issue.[37] However, any action plan appeared to have been halted since no comprehensive legislative measure had been taken. In an attempt to resurrect royal interest in dramatic copyright, a  common letter collectively signed by five well-known Spanish playwrights, which was a petition for the recognition of literary property in dramatic works. The first signature of the petition appeared to have been the most significant. It came from the director of the national library, the poet, critic and prolific playwright Manuel Bretón de los Herreros (1796- 1873). Bretón had been praising the collecting society of dramatic authors recently constituted in France.[38] One year before the petition, he published an article which focused entirely on literary property and how it should be applied to theatre.[39] Now pursuing the issue through official channels, his expectations were supported by the two main protagonists of the literary circles at that time,[40] the “cultural broker”, Eugenio de Ochoa (1815-1872), and the law student Gregorio Romero de Larrañaga (1814-1872).[41] The petition also increased pressure by including the signatures of the two raising theatrical stars of the moment: Antonio García Gutiérrez, the author of El Trovador, and Juan Eugenio Hartzenbusch (1806-1880), who had just written another blockbuster: Los Amantes de Teurel.[42]

 It seemed as though the conditions for change were now very propitious. Retrospectively we can see how, compared to previous petitions and complaints, this request did achieve success. It passed through the official channel of administrative files and culminated in a Royal Order. The petition was drafted in a way that echoed observations made in theatre reviews. It involved a re-petition of rehearsed arguments translated into an official letter. This is precisely what made the letter particularly interesting: its recursive trope capitalized on previous media achievements in order to get a royal response.[43] Two important points stand out. Firstly, complaints concentrated on the rights of dramatic writers that were “still entirely ignored”. Secondly, objections focused on what the dramatists viewed as the consequence of copyright infringements: the proliferation of plays “disfigured and full of mutilations”.[44] These arguments also enable us to consider the particular connection between copyright and nationhood. The petitioners strategically connected the lack of copyright protection to the decline of Spanish theatre. A ministerial Mesa received and assessed the diagnosis made by the petitioners. It would appear that a convincing case was made with the petitioners compiling evidence of frequent copyright violations, proposing legislative reform and offering the Queen Regent different examples of how comparable legal systems had dealt with similar issues.[45] In an instance of what Brad Sherman has called “cross-fertilization between different legal cultures”,[46] the Spanish ministers made an explicit reference to French copyright projects being carried out by Louis Philippe, Conde de Ségur (1780 -1873).[47] As a response to the petition, the Queen Regent ordered the constitution of a committee charged with the task of presenting a legislative draft.[48] This committee was made up of Francisco Martínez de la Rosa (1787-1862), Antonio Gil y Zárate (1796-1861) and Manuel Bretón de los Herreros.[49] They did not encounter significant difficulties in persuading the Queen Regent, since she finally passed the decree on dramatic copyright.[50]

6.  Contested spaces   

Although the Royal Order of 1837 could be considered a victory for dramatists, enthusiasm rapidly vanished. When dramatists became property owners, their rights simultaneously appeared as an attractive platform for market forces and acquisitive practices.[51] In this respect, several episodes that occurred just after the promulgation of the Royal Order illuminate a more complicated assemblage of interests. Not only do they reflect the territorial tension in the expansion of copyright to the provinces, but they also show the crucial alliance formed between publishers and impresarios in the defence of authors’ rights in the periphery. Whereas the city of Madrid, the place in which the petition had been drawn up, was “the field of political action for Spanish liberals”[52] and copyright began to be institutionalized there, recognition of dramatic copyright still struggled in its transference to and enforcement in the periphery.[53] Several entrepreneurs such as the publisher Manuel Delgado (?-1848) and the impresario Juan de Grimaldi (1796?-1872) helped to make dramatic works and their acquired legal interests portable and productive.[54] It is here where we can see the irony in suggesting that the Royal Order was a victory for authors’ rights. While some dramatic authors during the 1840s attempted to secure their property rights, thus forming embryonic collecting societies,[55] the majority had to sell their rights for an insignificant amount.[56] Thus publishers and theatrical impresarios played a pivotal role in the mobilization and spread of dramatic copyright throughout Spain.[57] They were instrumental in undertaking its expansion in the Iberian Peninsula and colonial territories. This example provides confirmation that these actors became prominent advocates of its enforcement.

Two years after the promulgation of the Royal Order offering protection to dramatists, the publisher Manuel Delgado started sending requests to the provincial authorities for the order to be enforced.[58] An important feature of these petitions was the way in which they were formulated. Delgado presented himself as the “representative” of dramatic authors.[59] By acting as proxies in the monitoring of authors’ rights, publishers such as Delgado drew the authorities’ attention not only to the existence of copyright infringements in the peninsula and Ultramar but to the civil authorities that had the power to prevent such infringements. Delgado urged the Queen Regent to pass further legislation that reminded and instructed mayors and civil governors of their obligations to be vigilant and enforce the Royal Order. Similarly, censors were considered to provide adequate operative framework to check whether the dramatic works to be represented were authorised. On 8 April 1839 another circular was issued making such instructions explicit.[60]

 7.  Towards the Law of Literary Property (1847)

In spite of the difficulties regarding its enforcement and application, there is little doubt that the Royal Order of 1837 influenced the development of copyright law in Spain. Ten years after the Royal Order, the first comprehensive Spanish copyright law was promulgated. Moreover, the influence is evident when we note that the drafters of the new legislation had taken part in the episodes discussed in this commentary. Mariano Roca de Togores, the Marquis de Molins (1812-1889), acknowledged the importance of these events in the design of the new 1847 copyright law.[61] In preparing the draft of the bill, he enrolled Gil y Zárate, a member of the committee that convinced the Queen Regent of the need to recognize dramatic copyright in 1837.[62] After the recognition of dramatic copyright in Spain, Gil y Zárate did not lose interest in what he defined as “immaterial property”,[63] a species “property of peculiar origin”.[64] Not only did he seem to have studied the standard history of copyright law in other European countries, making useful references to laws such as the Statute of the Queen Anne (1710),[65] but he crucially concluded his study on copyright by suggesting that the regulation of literary property would bring “an immense benefit to the Spanish nation”.[66]

The political discussion of the bill in parliament reveals another familiar name, Martínez de la Rosa, who had participated in the recognition of dramatic copyright a decade earlier. As a member of the Congress, he was now involved in the promulgation of the Literary Property Act of 1847.[67] As regards the topic of dramatic copyright, the new law would mirror the foundational principles established by the 1837 Royal Order.[68] In other words, the dramatist had become legally recognised as the author and first owner of dramatic copyright.

8.  References

Aguilera Sastre, J. “Manuel Bretón de los Herreros y las políticas teatrales de su época” in Muro, M. A., (coord.), La obra de Manuel Bretón de los Herreros: II Jornadas Bretonianas: Logroño, 2 al 5 de marzo de 1999 (Logroño, Instituto de Estudios Riojanos, 2000) pp. 117-139

Alonso, C. Historia de la literatura española, vol. 5 (Madrid, Crítica, 2010)

Alonso Pérez, M. “La propiedad en el código civil” in De Dios, S. et al (coords) Historia de la Propiedad. Siglos XV-XX (Madrid, Colegio de Registradores de la Propiedad y Mercantiles de España Centro de Estudios Registrales, 1998)  pp. 472-507

Alonso Seoane, M. C. ““Algunos datos sobre José Bermúdez de Castro y un primer acercamiento a sus colaboraciones en La Revista Española (1836)” Anales de Literatura Española. N. 18 (2005) pp. 23-36

Artola, M. La burguesía revolucionaria (Madrid, Alfaguara, Alianza Editorial, 1973)

Biagioli, M. “Patent Republic: Representing Inventions, Constructing Rights and Authors” Social Research 73: 2006, pp. 1129-1172.

Biagioli, M. “The Author as Vegetable” [Paper presented at ISHTIP,Milan, 2009, on file with the author]

Bretón de los Herreros “Proyecto de estimulo y subsistencia para los autores dramáticos. Diario El Vapor. 22 de Julio 1833” in Diez Taboada, J. M. and Rozas, J. M. (eds) Manuel Bretón de los Herreros. Obra Dispersa (Logrono, Instituto de Estudios Riojanos, 1965) pp. 451-454

Bretón de los Herreros “Dos palabras sobre la propiedad literaria respecto de obras dramáticas” La Ley, Aug, 14, 1836

Burdiel, I.“The Liberal Revolution” in Alvarez Junco, J. and Shubert (eds) Spanish history since 1808 (London,Arnold, 2000) pp. 17-32

Burdiel, I. & Romeo, M. C. “Old and New Liberalism: The Making of the Liberal Revolution, 1808-1844” Bulletin of Hispanic Studies, vol.  75 (5), 1998, pp. 65-80

Coso Marín, M.A., Higueras Sánchez-Pardo, M. & Sanz Ballesteros, J. El Teatro Cervantes de Alcalá de Henares: 1602-1866. Estudio y Documentos (London, Tamesis Books, 1990)

Duffey, F. M. “Juan de Grimaldi and the Madrid Stage (1823-1837)” Hispanic Review, vol. 10, n. 2 (Apr., 1942), pp. 147-156

Ferreras, J. I. & Franco, A. El teatro en el siglo XIX (Madrid, editorial Taurus, 1989)

Ferrer del Río, A. Galería de la literatura española (Madrid, Estab. Tip. Mellado, 1846) 

Foucault, M. “What is an Author?” in Harari, J. V. (ed) Textual Strategies: Perspectives in Post-Structuralist Criticism (Niew York, Ithaca, 1979) pp. 141-160.

García Martín, J. “De la Apropiación Penal a la Propiedad Literaria: sobre los orígenes del derecho de propiedad intelectual en España (siglos XVIII-XIX) Revista de la Facultad de derecho de la Universidad Complutense, 2000, (93), pp. 105-149

Gies, D. T. Theatre and Politics in Nineteenth-Century Spain: Juan de Grimaldi as Impresario and Government Agent (Cambridge University Press, Cambridge 1988)

Gies, D. T. The Theatre in Nineteenth-Century Spain (Cambridge, Cambridge University Press, 1994)

Gil y Zárate, A. “Sobre la Propiedad Literaria” Revista de Madrid, 2 s. t. III, 1840, pp. 67-82

Iranzo, C. Juan Eugenio Hartzenbusch (Boston, Twayne Publishers, 1979)

Janke, P. F. Mendizabal and the development of liberalism in the Iberian Peninsula, 1833-1843 (unpublished D. Phil. thesis, University of Oxford, 1973)

Larra, M. J. “Teatros ¿Qué cosa es por acá el autor de una comedia?” n Larra, M. J. Obras Completas, I. Artículos (Madrid, Biblioteca Castro,   1996) pp.194-199.

Larra, M. J. “¿Quién es por acá el autor de una comedia?” in Larra, M. J. Obras Completas, I. Artículos (Madrid,   Biblioteca Castro,   1996) pp. 211-215

Larra, M. J. “El trovador. Su autor, don Antonio García Gutiérrez” El Español, March 4 and 5, 1836.

Le Gentil, G. Le poète Manuel Bretón de los Herreros et la Société espagnole de 1830 à 1860 (Paris : Hachette, 1909)

Malheiro de Ferraz, J. M. “Algunos apuntes históricos sobre el nacimiento de la Propiedad Intelectual en Portugal” Documentación de las Ciencias de la Información, 2003, 26, pp. 199-231

Marichal, C. Spain (1834-1844) A New Society (London, Tamesis Books, 1977)

Martín, G. C. “Derechos de autor y derechos de dramaturgo en la primera mitad del siglo XIX” in Vidal Tibbits, M. (coord.) Studies in Honor of Gilberto Paolini (Newark, Juan de la Cuesta, 1996) pp. 141–158.

Martínez Martín, J. A. Vivir de la pluma. La profesionalización del escritor 1836-1936 (Madrid, Marcial Pons, 2009)

Martínez  Martín, J. A. “La edición artesanal y la construcción del Mercado” in Martínez  Martín, J. A. (ed) Historia de la edición en España, 1836-1936 (Madrid, Marcial Pons, 2001) pp. 29-72;

Martínez  Martín, J. A. “Las ediciones de Delgado en el siglo XIX. Actividad Editorial e Inventario de Obras” Pliegos de Bibliofilia, 8, 1999, pp. 27-41

Martínez  Martín, J. A. “El Mercado editorial y los autores. El editor Delgado y los contratos de edición” in Ortega, M-L. (ed) Escribir en España entre 1840-1876 (Madrid, Visor, 2002) pp. 13-33;

Meléndez Butrón, M. & Yeste Sigüenza, F. J. Calles y plazas de Chiclana de la Frontera  (Chiclana, Viprén, 2006)

Mesonero Romanos, R. Memorias de un sesentón (Madrid, Tebas, 1975)

Miranda de Larra, J. Larra. Biografía de un hombre desesperado (Madrid, Aguilar, 2009)

Nozick, M. “Some Parodies of Don Juan Tenorio” Hispania 33, 2 (May, 1950), pp. 105-112;

Peers, A. A History of the Romantic Movement in Spain (Cambridge, Cambridge University Press, 1940)

Picoche, J-L. “Le Theatre a Madrid entre 1833 et 1850” in Juan Eugenio Hartzenbusch y Martínez, Los Amantes de Teruel (Paris, Centre de recherches Hispaniques, 1970) pp. 13-56

Ringrose, D. Spain, Europe and the “Spanish Miracle” 1790-1900 (Cambridge, Cambridge University Press, 1996)

Roca de Togores, M. Bretón de los Herreros, recuerdos de su vida y de sus obras (Madrid, Imp. Tello, 1883)

Rogers, P. P. “Dramatic Copyright in Spainbefore 1850" Romanic Review 25 (1934) pp. 35-39; 36; Miranda de Larra, J. Larra. Biografía de un hombre desesperado (Madrid, Aguilar, 2009)

Shaw, D.L. “Larra, Mariano José (1809-1837)” in Wintle, J. (ed) Makers of Nineteenth Century Culture, 1800-1914- A Biographical Dictionary (London, Routledge, 1982) pp. 352-353

Sherman, B. “Remembering and Forgetting: The Birth of Modern Copyright Law” 10 Intellectual Property Journal 1995, pp. 1- 34

Surwillo, L. The Stages of Property: Copyrighting Theatre in Spain (Toronto, University of Toronto Press, 2007)

Surwillo, L. “Mendizábal, García Gutiérrez, and the Property of Spanish Theater” Arizona Journal of Hispanic Studies, vol. 6, 2002, pp. 43-56

Randolph, D. A., Eugenio de Ochoa y el romanticismo español (University of California Press, Berkeley and Los Angeles, 1966)

Rogers, P. P. “Grub Street in Spain” Hispania, vol. 25, n. 1 (Feb., 1942), pp. 39-48

Romero Mendoza, P. Siete ensayos sobre el romanticismo español, vol. 1 (Cáceres: Talleres Tipográficos de la Diputación Provincial, 1960)

Sánchez García, R. “La propiedad intelectual en la España contemporánea, 1847-1936” Hispania, vol 62, n. 212 (2002) pp. 993-1019;

Varela, J. L. Vida y Obra literaria de Gregorio Romero Larrañaga (Madrid, CSIC, 1948)

Vergara, M. Legislación de la Propiedad Literaria en España (Madrid, Librería de Moya y Plaza, 1864)

Ullman, P. L. Mariano de Larra and Spanish Political Rhetoric (Madison, The University of Wisconsin Press, 1971)

Worth Banner, J. “Concerning a Charge of Plagiarism by Mariano José de Larra” Studies in Philology, vol. 48, n. 4 (Oct., 1951), pp. 793-797;

Yxart, J. El arte escénico en España (Barcelona, Impr. de "La Vanguardia", 1894-96) pp. 18-19.

Zorrilla, J. Recuerdos del tiempo Viejo (Madrid, Debate, 2001)