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12 translated pages

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377

XXIII

On the right to the performance of published
stage plays


      Although our Statute Book was one of the first legislative
codes to prohibit reprinting, and even to make it liable to
punishment, it can nevertheless not be denied that the book trade
and the means whereby thoughts can be reproduced have expanded so
much and acquired so many new nuances since the adoption of the
Statute Book that our legislation seems not just incomplete in
this respect, but also becomes entangled in irresolvable
contradictions. At a later point we will undertake a revision
of this whole section. Here, though, we will just attempt to
deal with a topic which is analogous to reprinting. However, what
makes this and similar subjects rather complicated is the way
in which a Prussian law would necessarily have to relate to the
legislation for all the German states. Now, it is a known fact
that in the sixteen years of its existence so far the Federal
Diet has not managed to bring about a general law against reprinting;
that the intellectual property of the German nation has been
left without protection and security by this institution, and
has thus had to take shelter behind humiliating privileges, the
application procedures and procurement of which effectively
make such theft seem a right to which everyone is entitled.
It is probably good old German thoroughness and the desire

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378            On the right to the performance

to give consideration to everything, and therefore also to give
injustice its due, that have until now left unsatisfied a need
which is felt on a daily basis and whose satisfaction no other
nation as intellectually active as ours would have requested in
vain for so long from its legislators. At least we Prussians
have nothing to reproach ourselves in this respect. We have
granted protection where it was demanded, we have refused to
tolerate theft anywhere, and our well-meant, albeit still
incomplete, laws have stood up resolutely to the principle of
injustice.
      It is not surprising that people been unable to conceive of
such a thing as intellectual property, that jurists have been
reluctant to go beyond the Roman concept of property in a material
object. But in that case one ought to be consistent throughout
and annul all publishing contracts, since surely one cannot pretend
that a contract should be valid for a right of possession to which
everyone, in fact, is entitled, and which may just as well be
appropriated by any non-signatory to the contract! A most shrewd
justification for reprinting has been postulated by pointing to the
fact that one can do what one wishes with one's property, so that
therefore the owner of a copy [of a work] is entitled to have it
reprinted - as if ownership of a copy actually implies that one is
the owner of the general whole of which that copy is but a single
part, as if the printing of further copies did not go beyond
precisely this ownership of that one copy and was not something
quite different to such ownership, or as if it was even necessary
to be the owner of a copy in order to carry out a reprint. For what
if the reprinter had borrowed a copy in order to achieve his purpose?
Is it only then that his right to the reprinted copies can be
called into question, is it only then that reprinting is an injustice,
and must, therefore, the reprinter always take care to prove that
he really was the owner of the copy [used for the reprint]?

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379            of published stage plays

Or, if this is an irrelevant distinction, does the justification
for reprinting, then, lie rather in the general fact that
nobody is the proprietor of his thoughts and intellectual utterances,
and that, like air and other elementary substances, these can
rightfully be claimed by everyone?
      However, it seems pointless to seek to debate any further
with the defenders of reprinting. The matter is surely
to be regarded as having been convincingly settled, and it will
scarcely be possible to find in Germany a figure of authority who
might be invoked by the friends of the reprinting culture. And yet
few are the people who are willing to apply the correct principles
which they defend in the question of reprinting to such expressions
of intellectual property, too, which are not directly concerned
with printing. In Germany, especially, these aspects have so far
received very little attention.
      One such aspect, which we intend to consider on its own here,
is that of stage performances. Our laws say nothing whatsoever
about the authors' rights to such performances. Although the
promulgation of the Statute Book occurred during a period which
was by no means amongst the worst, as far as German writing for
the stage is concerned, the latter nevertheless had then not yet
manifested itself quite as a sufficiently significant profession
as to require the protection of special laws. This is, however,
the case now. What our dramatic poetry has lost in terms of
artistic significance, it has gained precisely in business terms,
as the manifestation of a professional occupation, and it lays
claim to the legislature in inverse proportion to its intrinsic
value. The theatre, reduced as it is to mere entertainment but
thereby capable of a more powerful outward effect, cannot do
without the protection of civil laws, and it would be unjust if
those who regularly maintain it with the transient and expendable
fruits of their diligence were alone to be exposed to theft.
      In Germany the following theory has emerged as a result of custom:

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380            On the right to the performance

namely, that, until a play has been published, the
theatres must obtain from the author permission to
stage it. It would be regarded as theft if the
director of a theatre, without asking the author or
coming to an agreement with him about the price of the
manuscript, were to allow himself to stage such a work.
However, as soon as a play has been published, the view
is that the author has given his consent for its
performance and, what is more, without this requiring any
further contract. Neither is it necessary, according to
this view, to offer the author any kind of remuneration,
since having purchased a copy of a play surely gives a right
to undertake its production on the stage.
      This attitude, which has become the standard practice
across all Germany, has until now hardly met with any juristic
objection - either because the matter seemed too insignificant,
or because, from the point of view of the earlier theories of
reprinting, such a procedure was taken to be the natural
consequence of the circumstances in such cases. Despite this,
however, this attitude is completely mistaken, and, since
common usage has in effect been sanctioning an injustice, it is
the task of the legislation to eradicate this wrong and to
put justice in its stead.
      He who has handed over a play for publication will have
to concede the buyer of a copy all the rights which
an individual is entitled to exercise with regard to a single
object. The buyer can destroy, abandon, sell, or use the book
himself. As part of this utilization, he may also allow
others to use it [in such ways]. But he is not allowed to do
anything which would turn this utilization into a different,
more general, kind of manifestation that has not been
permitted by the author, who is alone entitled to it, and as
a result of which we would not be dealing with the private
utilisation of the object any more, but rather the ownership
of this object is merely used as the opportunity to carry out
something which has nothing whatsoever to do with this
ownership. What was said above with regard to reprinting is
also applicable here. Just as little as the ownership of

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381            of published stage plays

a copy can justify reprinting, since one doesn't even
have to be the owner of such a copy to undertake a reprint,
so a stage performance, that is, a general manifestation which
amounts to the same as reprinting, cannot either be justified by
such ownership.
      In its consequences a stage performance can certainly be
compared to reprinting. For money one is acquainting a large
mass of people - namely, a far greater number than those who
tend to buy and read a play - with the author's work; one is
making a profit from the latter's intellectual efforts, since
the work done by the actors cannot be taken into account
differently to, or to a greater extent than, the printing costs
which are after all also borne by the reprinter. Through its
performance a play makes its appearance before an audience:
moreover, it is handed over to the public in a rather different
and more intensive way than is the case with mere printing. For
the printed work does not have an effect on gatherings of people -
it does so solely on individuals, which means that only gradually
can it produce the impression that a stage performance is capable
of provoking in one instant. It is for this reason that
in those very states in which there has long since been freedom of
the press there is still a censorship of theatre plays; and it is
only after the most recent political revolution in France* that
the latter preventive measure too has been abolished there. However,
quite recently the need was felt to propose a theatre law in France
which is not free of preventive and prohibitive stipulations.**
      However, if a stage performance is to be regarded as equivalent,
if not more, to reprinting, then it should also be entirely treated
as such. However, one mustn't forget that another aspect comes into
play here, and that the performance of a stage work against the will
and without the permission of its author exposes him to a risk which
he may not have wanted to incur at all. If a play is reprinted,
one can at least not say that the manner of the manifestation


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* The July Revolution of 1830

** Theatre censorship in France was to be fully re-introduced with the
September Laws of 1835

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382            On the right to the performance

has been altered. The author or publisher has suffered
losses only to his property, since a reproduction was carried
out by unauthorised persons. However, it all amounts to no
more than a quantitative matter, a question of property: he
who is reckoning with having a thousand readers will not be
displeased to see this number increase, and from this perspective
authors have looked not so unfavourably on reprinting. But where
someone intended a play to be published, it may certainly be
asked whether he really would approve of, and consent to, a
completely different manifestation - namely, a stage performance -
to be effected with the play. Such a performance would expose
the author to the risk of general displeasure and insults which
may very well accompany it. As a result, therefore, one would be
subjecting him to a risk which, without his consent, one is not
entitled to make him incur in the first place. In the wider sense
of the word, one is doing something which is injurious to him.
      My late friend Neustetel tried, in his ingenious final
treatise on reprinting according to Roman law, to demonstrate
that already on the basis of common law reprinting is forbidden
because an author can file an actio injuriarum [an action for
injury to a person's reputation] against a reprinter. It is certainly
true that in Roman law, which does not recognise intellectual
property, but which, on the other hand, does consider the sphere of
the actio injuriarum in the widest sense, no other means
of redress [against reprinting] can be found. One must also admit
that there is a double injustice in reprinting: on the one hand, that
of depriving the owner of a rightful profit, and, on the other, that
of arrogating to oneself the decision on publication, to which no one
else but the author or the publisher he has appointed is in fact
entitled. It is precisely the latter which constitutes the injurious
aspect referred to above. However, if such an injury takes place
already with reprinting, how much more must this be the case with
a stage performance, where the manifestation is, moreover, different
to what the author had intended. One cannot even make the objection
here that if

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383            of published stage works

the author has permitted the performance of his play on one
particular stage, other stages, assuming that the play were
to have been published, would then be entitled to do the
same. One may be prepared to present oneself before a specific
audience and to face the latter's possible disapproval or
applause without, though, this implying in any way that one
is willing to expose oneself in the same way to the same risk
with regard to an audience that one may perhaps not be familiar
with. But by the assumption that everyone is entitled to
stage a play once it has been published, one is also committing
an act of negative coercion that is just as bad. For one is
thereby hindering authors in their capability to submit their
plays for publication, given that the latter is interpreted
as the signal to go ahead with an allegedly legal act of robbery.
Whereas in France every play appears in print at the same time
as it has its stage première, an author in Germany must wait
for this until he has sold his manuscript to the last stage
that is able to pay, and many theatres, expecting that the
author will eventually not be able to control himself any longer,
and that they will then be able to acquire the play for a few
groschen, are patient enough to postpone the performance until
the publication of the play has been completed, whereupon they
rush in upon it with all the fury of suppressed ravenous hunger.
      The view that any theatre can stage a published play just
like that, simply because it has been published, is therefore
wrong for two reasons: firstly, it allows one to enrich oneself
with another's property, and, secondly, it means exposing someone
else to a risk which that person may not want to incur in the
first place. These two disparate reasons, however, come down to
the same thing precisely because given that at every performance
the author is exposed to the risk of provoking displeasure, he
is all the more entitled to a compensation which is just as much
a reward for his labour as a benefit [in the sense of insurance]
for the risk to which he is exposing himself. In France this has

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384            On the right to the performance

been duly taken into account for a long time, and to the ever
practical French legislation it was inconceivable to leave
such an important branch of industry as the theater without
judicial protection. It is true that there, if a play has already
been published and staged elsewhere, a theatre does not have
to ask the author's consent for a performance on its stage: it
may proceed with this immediately, but it must also pay the
author a share (tantième ['royalty']) of the takings from each
performance, and the author is entitled to take legal steps to
claim this share. Here it is presupposed that if an author wrote
a play for the stage, he cannot have anything against it being
produced at a specific theatre, as long as he is not deprived of
the revenues from such a performance. Indeed, as a result of this
assumption and of also taking the author's profit into account, the
personal insult (injuria) is cancelled, for the latter
consisted in the fact of exposing the author to a risk without due
compensation, thereby effectively turning him, against his will, into
the partner of a societas leonina.* A French author is, moreover,
entitled to submit his play solely for publication and not for
production on the stage.
      On the whole, I do not see why these stipulations should not
be introduced into our country, too. A statute book which recognises
reprinting as illegal may very well, without any doubts whatsoever,
determine that no theatre is entitled to stage a play merely because it
has appeared in print. It is, however, harder to decide whether in the
case of a published play a theatre must obtain the express permission of
the author, or if the mere fact that the play has been printed allows
one to presuppose that the author agrees to its production as long as
he receives appropriate remuneration. Wherever shares of the takings
are earmarked for the author, such an assumption is conceivable, but
not so in those cases where the theatres




* A 'lion's partnership', that is, a society where all the profits go to
some of the partners in exclusion of the rest. This term was coined
in Roman law, in allusion to the well-known fable where a lion and
various other animals enter into a partnership for hunting, and the
lion ends up taking all the prey! Cf. the phrase 'the lion's share'.
Reference: Bouviers Law Dictionary (1856), consulted online at:
http://www.legallawterms.com

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385            of published stage plays

pay a fixed price, for this requires a special
arrangement with the author, who can sell his play to
one theatre more expensively than to another, who can
entrust its staging to one theatre, but deny it to
another. There is simply no reason why a country's
legislation should not want to recognise the system of
royalties, which is as straightforward and practical as
it is just, and which is equally practicable for the
authors and the theatres, since inherent in it is the
correct measure of [a given play's] success. The repeated
performance of a play can rightly be compared to a new edition,
for though it is true that both are just a repeated act,
the whole appears again afresh [before the public]: it makes
a new impression and must be prepared to face a new verdict.
How many books there are which didn't sell at all in their
second edition, even though the first edition was rapdily
exhausted, and how many plays there are whose second
performance has knocked them off the repertoire, even though
they had raised quite different expectations at their
premières! However, he who would see a contradiction
between the earlier assertion that a performance without
the author's consent constitutes a personal offence (injuria),
and the assertion made now that such permission should be
presupposed as inherent in publication, must only consider
that if this assumption were to be expressed by positive
law, it would then be possible for anyone to invalidate it
by not giving his permission for a performance, or by giving
it with qualifications, before his play has been published,
or also if he indicates that a special arrangement must be
made in each particular case.
      A principal objection which might be raised against such
a proposed law might first of all consist in how one is to
decide what counts as a stage performance and what doesn't.
It is a favourite recourse of sophistry to prevent good laws
by showing how an extension of these is logically necessary,
but at the same time absurd, thereby seeking to also undermine
those provisions that are feasible. From such a sophist's
perspective one could, for example, pose the question

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386            On the right to the performance

as to whether theatre enthusiasts also fall into this
sphere, whether these are not to be entitled to put on
amateur performances of published plays, or whether a
special arrangement with the author is also required in
this case. One could similarly ask whether the reading
of published plays in front of an assembled audience, as
has become quite common nowadays, is also to be regarded
as a theatre performance, and whether, consequently, the
same stipulations as above are to be assumed.
      But whenever arguments of this kind are put forward,
one must make sure to determine the specific principle
which is decisive in such cases. For similar attempts have
been made to call into question the prohibition of reprinting -
namely, by arguing that anyone is after all entitled to take
a thousand [handwritten] transcripts of a book and to sell
these. As if in such a case the work involved in copying out
the book would not be infinitely more expensive than the
value of a [printed] copy, or as if it weren't precisely for
the reason that such a person would be seeking to get at the
labour of someone else without any effort on his own part
that reprinting must be forbidden! Similarly, in the case of
plays these two aspects are also decisive: namely, whether
a performance is public and whether it is done to make
money. Where both criteria are met, the category of a staged
performance applies entirely, and the whole thing must be
treated accordingly. If someone publicly reads a play in front
of an audience which has been invited by means of advertisements
and posters, and which pays for this, there is no reason why
this activity should not be treated like a theatre
performance and the author remunerated accordingly for it.
The effort expended in reading can surely not be regarded as
greater than that required by a performance. If, on the other
hand, both of these criteria are not met at the same time,
then there is, in fact, no need to consider such presentations
[of a play]: for a start, such performances are not at all
frequent, and, more importantly, we have just come to the
conclusion that the injustice committed against the author
lies in the coming together of both these conditions.
Amateur theatres, insofar as they are not public and no money
is paid for admission to their performances, must therefore

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387            of published stage plays

not to be troubled in any way. Neither the money alone
which may be paid to see a performance, nor the public character
of it are in themselves decisive: rather, both aspects
must occur together.
      Although it would be far more important to achieve the
enactment of regulations on stage performances for the
whole of Germany, which in the realm of the theatre makes
up one single whole, it is nevertheless appropriate if in
this case, too, the Prussian state takes the lead. On the basis
of the arguments made above, therefore, I propose the following
draft law:
      §.1. The stage performance of published plays is only
      allowed under the following conditions.

      §.2. Theatre-houses, itinerant theatre companies, or
      any such associations which, after the issuing of
      public announcements and the levying of an entrance
      fee, put on plays, must hand over to the author
      the tenth part of the gross receipts after each
      performance.

      §.3. To ensure that this share is duly paid out, theatre-
      houses must appoint a specially designated person for
      this purpose. In the case of other types of performance,
      the local authorities must be requested to provide such
      an inspector, and without this no permission for the
      performances can be given.

      §.4. The publicly announced reading of dramatic poems,
      admission to which requires the payment of an entrance
      fee, is to be judged entirely in accordance with
      the above stipulations.

      §.5. If the author of a play has forbidden its staging
      or has tied it to specific conditions, then the theatre
      companies must comply solely with the will of the author,
      and if they should act against this, they are, by way of
      punishment, to pay him three times the gross receipts of
      every performance.

      §.6. In the case of manuscripts, the author's permission
      must be obtained for the play to be staged, and his terms

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      must be accepted, for otherwise the punishment
      stipulated in §.5 will apply.

      §.7. Ten years after an author's death his
      dramatic works become public property, and the
      provisions listed in §.2-6 cease to be valid.

      Many people nourish the hope that the art of
drama will gain in value as a result of such protection
of the proprietor. I do not myself share this opinion,
but the law's task is not to elevate art anyway: rather,
it must give protection to industry.


Translation by: Luis A. Sundkvist