Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: s_1847

Commentary on Spanish Literary Property Act (1847)

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 Spanish Literary Property Act (1847)” in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 
1. Full title

2. Abstract

3.  The French Connection

4.  Parliamentary debates 

5.  The Law

6.  Reading of the Law

7.  References

1. Full title

Literary Property Act (1847)

Full title original language

Ley de Propiedad Literaria (1847)

2. Abstract

The liberal movement towards a law of copyright culminated in the 1847 Literary Property Act. For many scholars this should be considered the first modern Spanish copyright law. The commentary here explores three different themes. First, it looks at the French influence on the impetus for the law and develops an interpretation of the impact a diplomatic dispatch had in the Spanish government. Second, it briefly summarises the parliamentary discussions. And third, it explains the basic features of the law such as the complex regulation granted to translations.

3.  The French Connection

Following the ratification of the bilateral copyright convention with Sardinia(1843), France activated her international copyright diplomatic networks.[1] A few months later, a dispatch from the French ambassador in Madrid was received by the Spanish government.[2] It contained a printed copy of the convention and a request to sign a similar arrangement with Spain. The demand was rejected and received a negative response. No treaty was signed and no prospect of an agreement arose despite the insistence evidenced by French diplomats.[3] However, the contact did have one immediate effect. It had an impact on the already agitated background of petitions and demands brought before Parliament for copyright legislation.[4] Indeed, the French diplomatic dispatch grabbed the attention of the Spanish government and the file was rapidly transferred to its advisory council (Consejo Real)  with a call for comments on the issue.[5] On the transfer, the government requested not only advice on the bilateral copyright question but also, and more importantly, an opinion on the possible domestic statutory recognition of copyright.[6] Less than two years later, and after the comments made by the council, a bill was lodged in the Parliament. The petition was signed by two famous Spanish writers and politicians: Antonio Gil y Zárate (1793–1861) and Mariano Roca de Togores, Marquis de Molins (1812 - 1889).[7] 

4.  Parliamentary debates 

The bill was discussed thoroughly in the two chambers. And opposition obviously centred on the most contentious issue: the nature of literary property.[8] The work done for previous petitions had already prepared the discursive battlefield,[9] and in order to defend the bill, the proponents of literary property cemented their arguments in a very creative way. Tactically, they delivered speeches in both the Congress and the Senate claiming that the property at stake was not “really” property but just a “fictitious property”.[10]  This definition of literary property as a positive fiction was repeated throughout the discussions by different speakers.[11] No doubt the description was insistently used because it was quite a handy slogan, not only for evaluating the peculiarity of the property, but also for justifying the discretion of the draft. Likewise, it was not surprising that the argument continued with the idea of literary property as a balancing mechanism between the interests of the author and the public. For support to gain strength and consistency, utilitarian equations and transcendental expectations were well added. The combination sounds familiar. It was the right time to say that “the more encouraging rewards given, the greater the number of works published”.[12]  

Thought-provoking and extraordinary interventions were also produced. One of the most remarkable speeches was that of one of the promoters of the bill, Roca de Togores, Marquis de Molins: he used a sort of environmental imagery to describe literary property, casting the work as a “plant”.[13] In addition to that notable speech, other politicians also contributed to imagine different ways in which the literary property term could be constructed. Especially significant in this regard was the suggestion for the duration of copyright to be counted from the moment in which the book was written and not from the death of the author. Nevertheless, there were other even more mechanical decisions to be taken, because one of the most difficult issues was the effect the law was going to have on those who had already acquired exclusive deals in relation to their material.

If the law – as the lawmakers thought – was creating a new type of subjective right given to the authors, the solution was to create a retroactive provision.[14] Though the clause drafted and passed seemed clear, making the property return to the authors on the expiration of any contract or privilege granted whatsoever, there were attempts to read the law as a tabula rasa and without retroactive effects. These attempts failed. A few years later, a petition to declare dramatic works in the public domain was bluntly rejected.[15] Not only was the retroactive effect a difficult issue to be regulated, prospective outcomes were also debated at the Senate. The theme was going to pop up in Spain as the most stubbornly persistent copyright issue throughout the nineteenth century.[16] One of the main frustrations of Spanish politicians was that reprints of Spanish works made in France were distributed in “our former colonies”. However, the Parliament appeared impotent in regulating that market.[17] Even though it was an unreachable objective, the Parliament discussed the ways of leaving a political message for the government, and a very and timid reference was drafted. It was not a request but what looks like a declaration of aspirations for the government to “try” bilateral copyright agreements.[18]  

5.  The Law

The act featured a series of distinctive aspects. Although the concept of work was not fully developed, parliamentary discussions had already exhibited more abstract expressions than the vocabulary finally written down. It seems that despite and possibly because of modern copyright subject matter which was as yet fully crystallised,[19]  the law perceived the relevant material worthy of protection in a very curious manner. If we look at the first sections of the statute, we may observe that the main standpoint that served as a structuring category for the legislator was basically that of authors of “original” writings.[20] The duration of the property was fifty years p.m.a. After that pivotal stance, other authors’ works were assimilated, such as to the authors of translations,[21] maps, musical works, dramatic works,[22] sculptures and paintings.[23] By linking them through and by extending the concept of literary property already recognised at the beginning of the act, these materials provided an avenue for becoming an author. Nevertheless, the link was difficult and the awkward early appearance of the adjective “original” made some politicians uncomfortable and therefore they requested its deletion.[24] It was not an anticipatory vision reflecting the modern regulatory framework that subjugates translations to the original; it was just the opposite: the need for translation to be included in the same phrase as original writings and not linked to them later in the law.

A great deal of parliamentary discussion had already concentrated on how to regulate translations. And considerable insight was offered into the complex task of translating. Not only were translations explicitly authorised; they were also fully recognised as mechanisms through which an object of property and its legal subject were legitimately produced.[25] They were – as we have just mentioned – assimilated to original writings.  The special care, even the obsession, for protecting translations was made even clearer when we look at the nuanced regulation they deserved. In particular, the law gave different legal treatment on the basis of the nature of the language the translation was made from. And distinctions proliferated. The term granted to translations of works from common languages was significantly shorter than the one given to translations from dead languages. On the one hand, the need to enhance competition in the marketplace was the main rationale for limiting the property over translations from living languages such as French or English. But it was, on the other hand, an understanding that translating from some languages such as French was an easy job.[26]  “Even a child can do it” said one speaker at the Senate.[27] At the same time, the law continued establishing more distinctions on the regulation of translations. It also began to focus on the form in which the translation could be made. In so doing, it categorised translations in prose and verse differently. The line of reasoning behind this regulation seems to have been that the task of translating verse was considered to be more difficult than translating prose.[28] With such detailed regulation on translations, there is nevertheless a remarkable legal silence. No reference was made to the possibility of translating from Spanish to Catalan and Basque (Euskera) or vice versa. The issue was however raised at the Congress. When the deputy for Barcelona, Tomás Illa y Balaguer (- 1869), asked for a clarification on this point,[29] he was quickly responded that these “dialects” were comprised in the Spanish language.[30] As if the language/dialect internal division was opening a knotty political issue, the deputies did not continue the discussion.   

The possibility of extracts becoming legitimate works was another interesting feature of the 1847 Literary Property Act. According to section eleven of the act, extracts could be authorised upon their merits and importance. In a procedure that could be regarded as an expropriation, it was for the government (and not for the courts) to authorise the publication of extracts on a case by case basis after having heard experts and interested actors. Nonetheless, the author of the work being extracted had a right to be compensated. The amount of such compensation was decided by the government on the declaration of public utility.[31]

Another constitutive element of the act was the legal deposit. Deposit and protection came together in a provision that imposed the duty that two copies of work before being put on sale were to be delivered to the National Library (Biblioteca Nacional) and the Ministry of Education (Ministerio de Instruccion Publica) in order to gain protection by the law.[32]  No section of the statute provoked more interpretative nightmares than this one. Between 1847 and 1857, more than six different attempts to clarify and to provide instruction were issued. And that happened partially because soon after the enactment of the law, rules suddenly transformed the deposit obligation into a sort of copyright registry.[33] Receipts were given, indexes were produced and book entries were organised. Instructions were added to rules providing for provincial registering points in order cover the entire Spanish territory. While these efforts to create a sort of copyright registry at the National Library in Madrid seem to have had some initial reasonable results, the first steps which obliged civil governors to report back the index produced and the works registered seem to have been more problematic. Troubling questions were also raised in relation to artistic works, and this was because the wording of the clause in the Spanish Literary Property act (1847) referred to “works” instead of “books”.[34] This reference had created an anxiety among artists as to the logistics of the obligation imposed on them. Fearing for the loss of protection, the obvious questions they should have asked themselves were the following: how should artists perform that obligation? Where artistic works should be deposited?[35] In 1850, the sculptor Sabino Medina y Peñar (1812- 1888) attempted to explore whether artistic works were precluded from the necessity of being delivered and presented a petition for clarification. Instead of an exemption, the answer he received was a set of specific deposit rules for artistic works. Depending on the specific category of artistic work, a form of deposit was specified. For instance, deposit rules for sculptures were fulfilled with the delivery of the mould cavity. If the mould was too big to be deposited, a rigorous and sufficient drawing of the work with the scale could be used as a substitute. Engravings and cuttings also required registration, with the copies to be delivered being the most expensive ones. And the places where these duties were to be performed were not the National Library and the Ministry of Education but the National Museum (Museo Nacional) and the Academy of Arts (Real Academia de las Bellas Artes de San Fernando).[36]

 6.  Reading the Law

As expected, the reading and value of the law changed throughout the nineteenth century. This also depended on the type of reader at stake. Those who participated and promoted the law considered it to be an extremely valuable act.[37] Those lawyers involved in the writing of legal history also praised its momentum. But a different and interesting category of reader who emerges in the nineteenth century is that of the comparative lawyer. We mention this type of reader for one specific reason. It seems that those who were commenting on the law by examining foreign copyright laws had more criticisms to offer. An appendix to the well-known treatise Febrero written by Vicente y Caravantes (1820-1880) in 1852 exemplifies this tendency. His account was surely a typical and an enjoyable comparative exercise with other laws such as the 1842 British Copyright Act and the 1846 Austrian Copyright Law and it was indeed critical.[38]  If we continue to look at the essays written about the 1847 Literary Property Act, we have a similar equation. The more international the reader was, the more critical he became. For the “scientific perspective” achieved seemed to increase the sense of detachment. The law was “scientifically useless”, one student claimed when defending his doctoral thesis.[39]    “How many defects can we find in it?” – asked another copyright scholar.[40] And the answer was obviously “many”, because the law was now perceived as “faulty, nonsensical, and full of absurdities”.[41]  Even though some of these criticisms were accurate, we have to be cautious: they were often attached to proposals for copyright reform. Not surprisingly, the peak of these derogatory depictions culminated in the enactment of the 1879 Copyright Law.

6.  References

Archival references

His-0890-01 in Archivo Senado (AS)

G.045.012 in Archivo del Consejo de Estado (ACE)

Legajo 11390. Expediente 63, sección Consejos, Archivo Histórico Nacional (AHN)

Legajo 11329. Expediente 15, sección Consejos, Archivo Histórico Nacional (AHN)

Bibliography

Ansorena, L. Tratado de la Propiedad Intelectual en España (Madrid: Sáenz de Jubera Hermanos, 1894; republished in 1911)

Bently, L. and Sherman, B. The Making of Modern Intellectual Property (Cambridge, Cambridge University Press, 1999)

Bretón de los Herreros, M. Obras (Madrid: Ginesta, 1883)

Dánvila y Collado, M., La Propiedad Intelectual (Madrid: Imprenta de la Correspondencia de España, 1882)

García Goyena, F. Febrero o Librería de Jueces, Abogados y Escribanos (Madrid: Imprenta y Librería de Gaspar y Roig 1852)

Mellado, F. Discurso sobre la Propiedad Literaria (Madrid: Imprenta del Banco Industrial y Mercantil, 1865)

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

Semblanzas de los 340 diputados a Cortes que han figurado en la legislatura de 1849 a 1850 (Madrid: Imprenta de Gabriel Gil, 1850)

Vergara, M. De la Propiedad Literaria (Madrid: Imprenta de Miguel Arcas y Sánchez, 1861)

Vicente y Caravantes, J. “Exposición y examen de nuestras leyes y tratados sobre la propiedad literaria” Revista General de Legislación y Jurisprudencia, vol. 50, 1877, p. 40; 123; 210.

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