Court of Cassation on originality, Paris (1869)

Source: Bibliothèque universitaire de Poitiers (SCD) : Dalloz, Jurisprudence générale. Recueil Périodique et critique de jurisprudence, de legislation et de doctrine, 1870.1.186

Court of Cassation on originality, Paris (1869), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer,

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Record-ID: f_1869

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Full title:
Prud'homme v. J Dubus's widow and Bellanger, Court of Cassation. 27 November 1869.

Full title original language:
Prud'homme C. Veuve Dubus et Bellanger, Cour de Cassation. Du 27 nov. 1869.

During the nineteenth-century the judicial system had to apply the very general (and short) revolutionary 1793 statute on literary and artistic property. Apart from the preamble, which implied that a remarkable new type of property was now being secured by the law, the seven articles of this act said nothing specific about the object of this property, except to confirm that writings of any kind, as well as productions of the mind and of genius, would be protected. In deciding whether a work qualified for protection against counterfeiting, in view of the difficulties involved in its definition, numerous criteria were employed by the judges. Originality was only rarely used as a criterion, and in any case not really before the 1860s. On the whole, this rather elusive term tended to be discussed in philosophical and literary contexts, especially in certain debates on aesthetics from the 1740s onwards. The case discussed here represents probably one of the first applications of this criterion by jurists of the Court of Cassation (the French supreme court): as in 1814 (f_1814a), the work in question was again a compilation. Along with the emergence of moral rights, originality would be applied increasingly from 1890 onwards, apparently suggesting a 'subjective' shift in French jurisprudence as far as the definition of literary and artistic works was concerned.

1 Commentary:


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Author: N/A

Publisher: Dalloz

Year: 1869

Location: Paris

Language: French

Source: Bibliothèque universitaire de Poitiers (SCD) : Dalloz, Jurisprudence générale. Recueil Périodique et critique de jurisprudence, de legislation et de doctrine, 1870.1.186

Persons referred to:
Bédarrides, Gustave-Emmanuel
Dubus, J.
Guyho, Corentin
Legagneur, Hubert Michel Fortuné

Places referred to:
Saint-Brieuc (Brittany)

Cases referred to:

Institutions referred to:
Court of Cassation (Paris)

French Copyright Act 1793

authorship, legal concept of
authorship, romantic concept of
authorship, theory of
moral rights, theory
patents, for invention
personality theory
photography, protected subject matter
privileges, printing
property theory
property theory, authors' property

Responsible editor: Frédéric Rideau

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