Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: s_1888

 
Commentary on the Civil Code (1888)

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. (2011) ‘Commentary on the Civil Code (1888)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 
1. Full title

2. Abstract

3.  The Codifying Moment 

4. Interpretative Ambiguities

5. Making links between Code and Copyright Law

6. Property… Again

7. References

1. Full title

Civil Code (1888)

Full title in original language

Código Civil (1888)

2. Abstract

Few years after the 1879 copyright act, the civil code (1888) was enacted. The passage of the uniform private law brought again discussions about the validity of the copyright law and the nature of copyright, moreover when the code directly referred to copyright in two articles. Theoretical discussions were now puzzled with a concrete issue: the existence of two different forms of law regulating copyright.

The commentary briefly explains the genesis of the civil code, the two articles directly related to copyright and the academic discussions on the theoretical foundation of copyright that significantly marked the last decade of the nineteenth century inSpain.

3. The Codifying Moment

Almost a decade since the publication of the copyright law, an ambitious project to codify all Spanish civil law in a code did succeed. As any historical codifying process, it was shaped by an array of circumstances both political and juridical. If one looks at the conceptual substance of the codifying process, it might be disappointing. Spainshows a long history of codifying attempts and failures. And perhaps she displays a lack of codification “culture”, a list of historical frustrations in the subject.[1] Indeed many different codifying projects did not crystallise throughout the nineteenth century and it was only when the century was about to finish when a civil code was passed. It is nevertheless interesting for us because it smoothed over particular ambiguities affecting the topic of copyright.

Yet the codifying moment brought back again discussions about the nature of copyright that seemed to have been foreclosed few years earlier. And different hopes were rapidly attached to the codifying anxiety. One of them is worth quoting for its explicitness. Danvila y Collado, the petitioner of the 1879 copyright law, expected from the codifying wave what he could not get from the legislator before, that is, for copyright to be declared perpetual. When it did not occur, and his expectations were once again frustrated, he attacked the code as being “fearful”.[2]  Few months earlier, he had gone even further, suggesting that the whole manner through which the code was drafted and passed was unconstitutional.[3]

4. Interpretative Ambiguities

Nevertheless the civil code was a turning point in the history of private law in Spain. The legal text to which comparisons should be made is the Novísima Recopilación. If the Novísima Recopilación was a heterogeneous compilation of texts of different sort, the civil code constituted a homogenous text. If the Novísima Recopilación  was a book difficult to be handled, the civil code constituted a coherent, short and systematically ordered book. Perhaps the code was not as easy to be read as the lawmaker expected since it also displayed a remarkable capacity of producing an ambiguous interpretative context. The uncertainty referred to its place in a complex system of private law already in place and to the effect upon it. The problem was this: its impact on the laws enacted before the code. Therefore, it brought a notoriously difficult and slippery task for copyright scholars. If the civil code established a break with the past, the first important decision was to consider whether the crack did or did not abolish the 1879 copyright law. This conclusion was particularly important since the mode of reference to the copyright law was particularly vague. When the code explicitly referred to the “copyright law”, it was assumed that it was the previous 1879 copyright law and not a future copyright law to come. Therefore the code did not abolish the law. But it   modified the way to read it. The copyright law had to be read now and onwards with the code.

More precisely, it was not only a duty to read them together; the code also specified the way to perform this duty: it established a hierarchical order of legislative sources. Ironically, despite the fact that the civil code came after the copyright law, it was clear from the very beginning that it needed to be read first.[4] It provided a new protocol of interpretation through which the 1879 copyright law needed to be interpreted. It was an illogical but creative loop: a new civil code and its task “previously” completed by the lawmaker. In other words, the civil code established an unconventional sequential order to follow. The property had been already recognised, the frame came before the work: the last page had to be read first.

5. Making Links between Code and Copyright Law

Two specific articles of the code referred to copyright law. Their location under a very specific heading (“special properties”)[5] prompted an interpretation of copyright as a sui generis property right.[6] To some scholars, such rubric and arrangement already involved a transcendental change. According to others, it was totally irrelevant.[7] Such special character – they said - was already implicit in the enactment of the special law (the 1879 copyright law). It was argued, then, that there was no such conflict. However it seems that there was indeed a difficulty to interpret it in that way or, at least, a controversy since the link was not totally insignificant. Matching the code and the law was then an activity that kept busy and entertained commentators and judges throughout the twentieth century. Identifying the consequences of the link was the practical side of the theoretical issue. On numerous occasions throughout the late nineteenth century and the whole twentieth century these dilemmas puzzled doctrinal and judicial enquiries not only in Spain[8] but also in former Spanish colonies such as Porto Rico.[9]

6. Property…Again

It is not surprising that the conjunction puzzled them. The possible genealogy of copyright was now bifurcated. There were many strands one could pursue and the language to initiate that journey was particularly vague. Particularly article 428 of the civil code sheltered too many nuances and shadings. The link to the 1879 copyright law was also uneasy. The insistent return seemed to have been always grounded on the imaginative interpretation to the conjunction between law and code, echoing a more transcendental link between law and society. Such incommensurable connection allowed for legal theorising. According to several interpretations, the dilemma was provoked by a different way of constructing the property right that could emerge from the two texts. On one hand, treating copyright as the code had done a “special property” in the same title to mines and water could be thought as a reminiscence of considering copyright as a part of administrative law, closer to public law than to private law.[10] On the other hand, it seemed the code presumed an absolute property whereas the 1879 copyright law had already limited the right.[11] But this is not all. There were other questions arising from that link. Disciplinary temptations about the boundaries of the academic and scientific field were fostered by its uncertain meaning. If the code was so succinct and wide, the question remained as to whether the 1879 copyright law had exhausted the possibility of other “intellectual properties”, that is, intellectual properties different from copyright, to exist in the future.  On April 25, 1900, the Spanish Supreme Court foreclosed that interpretative possibility.[12]

7. References

Cases

Osorio Ruiz v Secretario de la Vivienda, 106 DPR 49 (1977) [Porto Rico]

Supreme Court decision,April 25, 1900[Spain]

Persons referred to

Manuel Dánvila y Collado (1830-1906)

Francisco Lastres y Juiz (1848-1918).

Bibliographical references

Álvarez, C. “La legitimación del sistema. Legisladores, Jueces y Juristas en España (1810-1870 c. a.) (II)” 5 Historia constitucional (2004) pp. 101-139.

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

Albaladejo, M. & Díaz Alabart, S. (coord.) Comentarios al Código Civil y a las Compilaciones Forales, Tomo V, Vol. 4 A. (Madrid: Revista de Derecho Privado, 1994)

García Martin, 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 de Madrid, no 93, 105 ss

Petit, C. “El Código inexistente. Por una historia conceptual de la cultura jurídica en la España del siglo XIX" Anuario de Derecho Civil, 48 (1995) pp. 1429-1466.

Petit, C. “El Código inexistente. Por una historia conceptual de la cultura jurídica en la España del siglo XIX. II" Anuario de Derecho Civil, 49 (1996) pp.1415-1450.

López Quiroga, J. “Algunas consideraciones sobre la propiedad intelectual o derecho de autor” Revista de Archivos, Bibliotecas y Museos, 1915, pp. 213-248

Tomás y Valiente, F. Manual de Historia del Derecho Español (Madrid: Tecnos, 1983)