Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: s_1882

Commentary on Danvila’s Copyright Treatise (1882)

José Bellido (Birkbeck College, University of London)

Raquel Xalabarder (Universidad Oberta de Catalunya)

Ramón Casas Vallès (Universidad de Barcelona)

 
Please cite as:
Bellido, J., Xalabarder, R. & Casas Vallès, R. (2010) ‘Commentary on Danvila’s Copyright Treatise (1882)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 
1. Full title
2. Abstract

3.  From the Law to the Commentary. Danvila as a Writer.

4. The Copyright Treatise

5. The Fate of the book

6. References

1. Full title

M. Danvila y Collado, Copyright. Spanish and Foreign Legislation annotated, harmonized and explained according to history, philosophy, case law and treaties

 2. Abstract

The treatise constitutes the foundational academic text of the discipline in Spain. It provided an authoritative, comprehensive and detailed explanation of the Spanish copyright law. The commentary explains the context of its publication in the aftermath of the 1879 copyright law. It deals with the peculiar theoretical insights of the treatise and its structure covering the law. It finally gives a brief account of its place in contemporary scholarship.

 3.  From the Law to the Commentary. Danvila as a Writer.

More than any other politician, Manuel Danvila y Collado (1830-1906) is often regarded as a “key name” in Spanish copyright historiography.[1] For many commentators and journalists, he was “the author” of the 1879 copyright law.[2] And it might be possible to suggest that some of the historical peculiarities of this treatise are precisely derived from that autobiographical fact: the politician who proposed the law, the writer who drafted the copyright bill suddenly became the author of its commentary.[3] It is rare in the extreme for a politician to have the time to write legal treatises, and it is even more exceptional to find such an intimate encounter between the law and its interpretation in legal literature. For any reader, it was as if the text and its gloss could merge in what could have been the most awaited book, the definitive account of Spanish copyright law. In fact it was then three years after the law and the story of the treatise could certainly begin with the petition signed on November 1876 by several politicians. Among them was the signature: of Dánvila y Collado. The petition constituted the preamble of the 1879 copyright law.[4] As we are suggesting, the connection between two provinces (legislation and doctrine) is well established in the treatise. The politician now turned commentator justified the timely publication as follows: “since then, I have received some queries both from Spain and abroad on the main reforms introduced [...].  Now that I have to devote myself only to my professional duties [...] I feel obliged to answer my friends’ calls and I am about to write, in my spare time, an essentially useful book [...] a book that fixes the true spirit [of the Spanish legislation]”.[5]    

One is somehow inclined to believe the justification announced and provided by the author. The idea that the treatise followed a friendly demand is a reasonable explanation, even more so when the person who annotated the law was among its visionary founding fathers. To a certain extent, the writing of the commentary was nothing more than a straightforward business. It just involved the publishing of the materials and the views upon which he drafted the legislative proposal. However, a closer scrutiny of the commentary throws an ambiguity into the justification provided by Danvila. And indeed the story of the publication of the treatise is not so clear. It seems that the stimulus received by Danvila was not only the need to provide a commentary for the copyright law (1879) but also, and more importantly, a desire to annotate its regulatory development (1880), a development in which he did not participate. Underlying the commentary, as if the baby had been thrown out with the dirty bathwater, there is in Danvila’s treatise a constant critical spirit against the – for him - divergent way in which the law had developed.[6] It was the regulations (1880) which seized his attention and it was the momentum created by these regulations which seemed to have determined him to write the book.

2. The Copyright Treatise

If we consider that the treatise was a pioneering work, the first aspect that could illustrate its landmark character might be its structure and comprehensiveness. Until then, no attempt had been made in Spainto cover copyright law in such a systematic and detailed manner. Almost one thousand pages were divided into chapters dealing with international treaties,[7] excursus on current and historical sources, commentaries on the law and its development and reflections on these materials. A great deal of comparative copyright law was also included. More than twenty three copyright legislations were overviewed. More than three hundred pages were devoted to commentaries of the law and its regulations. The access to the store of material that Danvila had when he was a politician allowed him to master the sources in order to write an unprecedented treatise. It was also his insistence on what he conceived as the special nature of the subject matter (copyright) which makes the book particularly interesting: the scope of the text which emerged went beyond the legal discipline. It opened up comparative views, critiques of bilateral copyright agreements, running commentaries, and theoretical reflections on copyright. It was not only a legal commentary but also a historical and social study of copyright as an institution. Such an approach to copyright law and history was particularly relevant since it has become customary in different accounts up to the present day.[8] For instance, the characterisation of a chronology of copyright history from the privilege era to what he considered as the “first” Spanish copyright law (the 1847 literary property act) is a way of looking at the past that has become commonplace after his work.[9] The place and the arrangement of the sequences might indeed be challenged in many different ways, such as by highlighting the existence of other copyright laws enacted before 1847, but it is true to say that Danvila’s work was carried out in a ground-breaking way of handling the narrative and its perspective which made and still seems to make sense.

Secondly, the main theoretical description Danvila offered, something that he considered essential to his book, was even more problematic. It was nothing new for him though. In his different justificatory appeals published in the newspaper La Epoca, he had defined copyright as real property.[10] And his attitude did not change despite the fact that the international movement pointed towards a different direction.[11] So it is no surprise that one of his first assertions framed copyright as real property. As a result, claims of copyright as a perpetual property abounded in the book.[12] These views were anathema to conservative politics.[13]  And we could also follow the unfolding of the explanation. If liberalism meant at that point the removal of legal obstacles, Danvila was proposing a different type of legality for copyright. For him, the administration of copyright law required a set of formal rules to make it manageable and connected to the state and not only to the market. It was as if he focused more on state regulation than on the possible market ordering of copyright. In other words, when copyright was thought of as closer or almost identical to tangible property, a national infrastructure was needed. And that infrastructure was the copyright registry.[14]  He imagined the copyright registry as the main institution around which the intangible property was going to be constructed, materialised and protected. In order to tackle the problems of instituting copyright as such, Danvila offered suggestions on the ways in which the registry could have been built. His recommendations were not only directed to how the formularies could be drawn, with a set of forms to specify the “incidents” and vicissitudes of the property, but also referred to the appropriate and qualified staff to run the registry.[15]  

It is interesting, in the third place, to observe the sources and resources used by Danvila to compose his treatise. At the outset, something that attracts our attention is the emphasis on foreign doctrine to elucidate what he called “the true spirit of Spanish legislation”. Just a cursory reading allows us to perceive the abundant usage of references to French scholars (Pouillet,[16] Flinieux,[17]  Dalloz,[18] Celliez,[19] Renouard).[20] References to Spanish names are scarce and limited (Colmeiro,[21] Vergara, Vicente y Caravantes).[22] For Danvila y Collado, name dropping was not only a way of producing authority; it also served him to construct a doctrine in comparison. That is, he did not only mix arguments with analogical reasoning, he actually used the comparisons as a platform with which to develop a distinct interpretation. It is possible to see how he used them in making passages of different types. For instance, he was able to say that “we add with Pouillet” and he was able to use French doctrine to create a zone of comparison as well. The extensive use of French materials was not only limited to doctrine but also to case law.[23] And the reference system he established was basically the same. Curiously, Danvila quotes more French case law[24]  than Spanish case law.[25] 

5. The Fate of the Book

Danvila y Collado knew the great achievement he had just produced for modern Spanish copyright scholarship. The awareness of the incommensurable value the book had is evidenced in his actions afterwards. He found the first printed copy of the book to be an appropriate "gift" for the king of Spain.[26] And he was right. Copyright scholarship in Spain changed after his book. Since then, an invisible lineage has tied some major disciplinary books. If Danvila y Collado was the first in a family of landmark books, it is possible to suggest that the two other milestones were constituted by Baylos Carroza’s Treatise[27] and Bercovitz Cano’s Comentaries.[28] These three books have taken on the major task of forming jurists and had survived even when the law was no longer valid. In that sense, their influence continues in the way Spanish copyright scholars approach their discipline. Nevertheless, we are concerned here with the service of Dánvila’s treatise to international copyright law. A glimpse of the international copyright panorama suffices to perceive that the book rapidly became outdated and perhaps irrelevant.[29] Despite the fact that it appeared to have an initial overall impact,[30] facilitated by the fact that it was sold at the Spanish office of the most powerful copyright collective society, SACEM,[31] its “international” obsolescence becomes poignant when we observe that it only achieved two editions and no translations were produced. Two major drawbacks suffered by the book could explain this limited printed life and the concomitant international oblivion. The first was Danvila’s obsession with the nature of copyright.[32] As we have mentioned, he was convinced that the law was already handicapped by the limited period granted. And one of his main pivotal arguments or “general principles” in his commentaries was that copyright should be perpetual. While he was defending this unlimited temporal character, the tendency in international copyright was just the opposite. His observations were rapidly overridden by debates that concentrated on other issues.

The second problem refers to the contingencies of the publication: the timing was not as good as it seemed at the beginning. Ironically, the book was written too soon. A few years later, the Berne Convention (1886) was signed by Spain, affecting her national copyright structures and consequently making the book partially obsolete.[33] Yet there is an interesting question here about the influence of the treatise in Spanish copyright scholarship.[34] If the validity of the commentary, an ingredient essential for lawyers, was not sufficiently secured because of the impact of Berne, a way of accounting for the success of the book might be to link it again to its credentials and to the long history that the 1879 copyright law had. In view of the considerable reputation as an interpreter that Dánvila achieved, it is no surprise that the book became one of the foundational works of the discipline. If we attempt to define the peculiar merits of the book, we can say that it was not only a monumental effort in the compilation of legislative and other relevant materials, but it also became a book which has been considered authoritative.[35] And it became a “classic” in Spanish copyright law.[36]

 6. References

Archival Sources

 “Proposición de ley sobre propiedad literaria”, his-0897-01 in Archivo del Senado (AS)

 Bibliography

Baltar Rojo, J. “Castelao y la Ley de la Propiedad Intelectual de 1879: Un curioso incidente legal”, Boletín de ANABAD, (1979) pp. 95-105.

Baylos Carroza, H., Tratado de Derecho Industrial  (Madrid: Civitas, 1978)

Bercovitz Rodríguez-Cano, R. (ed) Comentarios a la Ley de Propiedad Intelectual (Madrid: Tecnos, 1987)

Bowker, R.R., Copyright: Its History and Its Law (Boston and New York: Hougthon Mifflin Company, 1912)

Clunet, E. Étude sur la Convention d’Internationale pour la Protection des oeuvres Littéraires et artistiques (Paris: Marcharl et Billard, 1887)

Cortés Giro, V. Derecho de la Propiedad Intelectual (Alcoy: Editorial Marfil, 1957)

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

Dánvila y Collado, M. “Que providencias de carácter legislativo deben tomar las naciones para asegurar en todos los países los derechos de autor?” VVAA, Congresso Juridico de 1889 (Lisboa: Imprenta Nacional, 1889)

Dánvila y Collado, M, El Libro del Propietario (Madrid: Fernando Fe, 1901)

De Lavigne, G.  Conventions Internationales pour la protection de la propriété littéraire et artistique et des droits de l’auteur  (Paris : L. Larose et Forcel, 1891)

Durán Arregui, E. Necesidad de Revisión de la Ley Española de Propiedad Intelectual (Madrid: Instituto Nacional del Libro Español, 1944)

Gímenez Bayo, J. Reyes, R. La Propiedad Intelectual (Madrid: Instituto Editorial Reus,  1949)

Pataille, J. Code international de la propriété industrielle, artistique et l littéraire; guide pratique des inventeurs, auteurs, compositeurs, artistes et fabricants (Paris: 1856)

Pérez Capo, F. Propiedad Intelectual. Doctrina, Legislación, Comentarios (Barcelona: Editorial Atlántida, 1935)

Pouillet, E. Traité théorique et pratique de la propriété littéraire et artistique et du droit de représentation, Paris: Marchal et Billard, 1879)

Lopez Quiroga, J. “Algunas consideraciones sobre la propiedad intelectual o derecho de autor” Revista de Archivos, Bibliotecas y Museos, 1916, pp. 298-351.

Renouard, A-Ch. Traité des droits d'auteurs: dans la littérature, les sciences et les beaux-arts  (Paris, J. Renouard et cie, 1838)

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