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5 translated pages

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Chapter 1 Page 1

The
Reprinting of Books

considered

with reference to German law,

by

Dr. Leopold Joseph Neustetel,

lawyer and prosecutor at the Supreme Court of the Principality of Hessen
in Hanau.


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Heidelberg,

New Academic Publishing House of Carl Groos.

1824

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Chapter 2 Page 21

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21

§. 4.
      When dealing with this question it is not at all appropriate
for the pecuniary aspect to be emphasized, because of the reasons
developed below. The many attempts to declare the illegality of
reprinting in terms of remuneration and profit were doomed to fail,
and will always fail, due to the objections raised by common sense,
which looks out for analogies and refuses to admit that the products
[Erzeugnisse] of writers products, once thrown into the scale pan of
commercial value, should be favoured over other inventions. And as
for the juridical view of the experts in common law, these attempts have
had so little effect on them that at all times and even today many
of the most esteemed professors of law declare reprinting to be legal
if not explicitly forbidden by particular statutes.(12)
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      12) Thus, Mittermaier, for example, in Grundsätze des deutschen
Privatrechts, § 177, argues that without a statute no penalty can apply
against reprinting. Likewise, with regard to positive law, Schmidt, op.cit.,
pp.60-61; and also with regard to natural law, as argued recently by von Droste-
Hülshoff, Lehrbuch des Naturrechts (Bonn, 1823), p 115.

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      If hitherto we have sought to isolate the question at hand
from the inappropriate application of some legal concepts, it is
now, though, our task, unless we also wish to leave it to a better
future to see to it that justice is done to writers, to subsume the
action of the reprinter under the existing legal provisions. For
this purpose we have to break up the action itself, as far as at is
feasible, into its constituent elements, so that we can identify
the aspect of illegality which is inherent in it. First of all,
reprinting is the imitation of a printed work by means of a printing
press without the mandate or permission of its author. Thus far this
action does not contain anything that is unlawful. The immeasurable
realm of free imitation knows no other boundary except where it goes
over into fraud [Betrug]. The reprinter, however, is not a defrauder:
he delivers his product as it is and for what it is; he does not even
misuse the name of the legitimate publisher, for, on the contrary, in
most cases he is not even ashamed to print his own name on the title-
page of the work. If he did use an assumed name, he would be thereby
admitting that he was pursuing an unlawful path. But, as we will see
below, it is in the nature of his offence [Vergehen] to make a presumption
which invokes the permissibility and legitimacy of what he is doing.

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It is precisely for this reason that we cannot treat reprinting as forgery
(falsum). The buying public does not care whether the work has been issued
by this or by that publisher. It is concerned with the content and does not
feel deceived by anyone who has duly delivered to it this content, even if
that person did so without legitimate authority. This whole aspect of
fraud is, however, of no use to us anyway for the very reason that it follows
solely from the relationship between the reprinter and his customers, whereas
all we are concerned with is the situation of the author and legitimate publisher
with regard to the reprinter.(13) Now it is the case that ever since the earliest
days of literature authors have had to put up with their works being copied
without their consent, and even today someone who, with much pain and effort,
were to transcribe by hand a printed book would not be accused of doing something
illegal. It is thanks to these handwritten copies that the intellectual heritage
of Antiquity has been passed down to us, and we we may surely assume that those
great masters
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      13) The most important authority for the treatment of reprinting as forgery
is: von Grolman, Grunds. d. Kriminalrechtsw., §.290, not. a. If the reprinter has
made use of the company name of the legitimate publishing house, then, it is true,
the necessary elements of a punishable fraud are present. What, in particular, the
legislation of the Kingdom of Bavaria has decreed with respect to this, has been
outlined in the report submitted to the German Federal Assembly by Herr von Berg.

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Chapter 2 Page 24

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reckoned that it would redound to their fame if the acknowledgement and
admiration of their contemporaries expressed itself in the activity of
such copyists and the proliferation of their works. Apart from the negligible
difference of external form, there is nothing which distinguishes imitation
by means of a pen from imitation by means of the printing press. Thus it
would appear to be equally legitimate to reproduce a printed copy of a work
both with a pen and with a printing press.

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Translation by: Friedemann Kawohl/ Luis Sundkvist (pp.21-24)