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Gareis: Juridical Nature of Author's Rights (1877)

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Gareis: Juridical Nature of Author's Rights (1877), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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Chapter 1 Page 1


IV.

The Juridical Nature of Author's Rights, as well as of Trade Name
and Trade-Mark Protection.

By Dr. Carl Gareis, Professor of Law at the University of Giessen.

_____

I.


      Commercial law has to deal with a number of legal situations
whose juridical nature has by no means been clarified yet. That is
why the textbooks and manuals of commercial law often differ from
one another, both with regard to definitions and with regard to the
systematic arrangement of these. The Commercial Code (Art. 15 - 27)
regulates company law; the Imperial Law of 30 November 1874,
concerning trade-mark protection, describes the civil lawsuits in
which bringing an action entails making a claim on the basis of
this Law as "commercial cases" in the sense of the Imperial and
State laws (§.19); the same designation is given by the Imperial
Law of 11 January 1876, concerning the copyright for patterns and
designs (§.15), to those civil lawsuits, in which on the basis of
this law legal proceedings aiming at compensation, enrichment [by
restitution], or confiscation, are instituted; the publishing business,
just like the other business activities of the book and art trade,
are described as relative "commercial activities" under Art. 272
Nr. 5 of the Commercial Code.
      From this it follows that it is precisely the science of
commercial

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law which has good reason and motive to occupy itself
with the juridical nature of the aforementioned
"commercial cases".
      However, any investigation in this field must of
necessity also cover other legal situations in addition
to those listed above - legal situations which display
the same juridical nature as the latter. For there isn't
just a copyright for designs and patterns (protected
by the Imperial Law of 11 January 1876), but also a
copyright for literary works, illustrations, musical
compositions and performances of plays (protected by
the Imperial Law of 11 June 1870), as well as a copyright
for works of the fine arts (protected by the Imperial
Law of 9 January 1876), a right to the protection of
photographs against unauthorised reproduction (Imperial
Law of 10 January 1876) and, finally, various author's
rights which, thanks to the State legal protection
afforded to inventors by the patent laws, thereby
attain legal recognition. As various forms of author's
rights all these "rights" come under one common
principle. A trade company's name is a "name", trade
name protection is therefore protection of a "name"
- the question then suggests itself as to whether other
- that is, non-commercial - names are also legally
protected. The connection between company law and
trade-mark protection requires no special proof: in
trade-mark protection it is the company which is being
protected. This consideration alone shows that a
number of situations which appertain not to commercial
law, but to the normal civil rights, must necessarily
also be discussed.
      It is to this connection that v. Mandry,* after
discussing the author's rights of writers, draws our
attention with the following words: "Whether and which
exactly of the rights covered by modern legislation
might be placed in the same category

____

* "The Copyright for Literary Products and Works of
Art. A Commentary on the Royal Bavarian Law of 28
June 1865. By Dr Gustav Mandry, Professor of Juris-
prudence in Tübingen." (In the compilation: "The
Legislation of the Kingdom of Bavaria, published by
v. Dollmann", Part 1, vol. 5, no.2, p.99)


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is something which cannot be determined here. However,
in general and without making any definite statements
about the private or property right nature of each of
these various rights, one may point to the following:
the right to the exclusive use of a specific trade
name (Commercial Code, Art. 15f.), the right to the
exclusive use of specific trade-marks and the rights
which follow from patents for inventions and how these
are brought into use."
      This wholly justified suggestion hasn't been taken
up as it deserves: that is, the examination of the
nature of author's rights as the right of the creator
of a literary or artistic intellectual product, is the
subject of quite considerable scholarly investigations
(considerable both in scope and depth),* but a truly
systematic presentation of the nature of all those
rights to which v. Mandry draws our attention is still
lacking.
      The theory of "intellectual property" - such is
the term which has been used in the past to describe
author's rights - cannot be meaningfully developed.
Every consequence which one might draw from the concept
of property reveals itself as incorrect - that is, none
is actually inherent in author's rights. Those who stick
to the word "property", though not to the concept, when
defining author's rights are forced to either adopt one
of the other theories or to actually avoid making any
definition as such. Also incapable of being developed
further is the dogmatic assumption of a "publishing
right" as a principle, since the latter term is too
narrow to define author's rights even when attempting
to do so from just one perspective.
      A basis for further development, however, is
provided by all those theories which

____

* Instead of giving a synopsis of the relevant
scholarly works - something which is not necessary here
- suffice it to point to the essay by Lewis in v.
Holtzendorff's "Legal Encyclopaedia", under the entry
"Urheberrecht" [Author's right], 2nd ed., vol.2 (1876),
pp.770-74 (which includes a useful bibliography), as
well as to the "Survey of the Scholarly Literature on
German Commercial Law" by Voigtel (Berlin 1876), pp.137-
41; and, moreover, to the bibliography in Gengler's
"The Main Features of German Private Law", 3rd ed.
(Erlangen 1876), p.130, n.1 and 2. One may also add:
Dr Klostermann's "Author's Rights for Literary and
Artistic Works" (Berlin 1876) and Dr Klostermann's
essay "The Right of the Inventor" in this compilation
(vol.35), p.11ff.





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interpret the author's right as a "right of individual
personality"* (and, moreover, which do so without
confusing this interpretation by supposing some sort
of affinity with a property right). These theories have
to be developed further in two directions: first of all,
the concept of "rights of personality" has to be defined
more exactly (that is, it has to be set more clearly and
comprehensively against the other kinds of rights) and
given a more solid basis (that is, one which is derived
more from the nature of the human individual, the legal
situations and from the purposes and nature of the law
in an objective sense) than seems to have been the case
so far. (The fact that there is a lack of common
agreement as to the need for such a category of rights
is, in my view, evidence for the desirability of a more
exact and solid definition). Secondly, the special class
of rights put forward in this way must be able to
explain and cover a number of external phenomena of
modern legal practice, which task has so far been
neglected by those trying to systematize civil law.

II.


      Whenever the notion of a "right of personality"
crops up in jurisprudence, it does so partly still
with a protean diversity of forms, and partly with
the formlessness of a protoplasmatic fluid. This
isn't the place to give a survey of the various
opinions on this controversial concept - rather, we
shall just draw attention to some of the more
significant and recent approaches.
      The most materialistic approach to defining
such a right of personality is to be found in the
following assertion made by Bangerow:** Every human
being, as far as what is physical about him is
concerned,

____

* Due to their pioneering significance for the
recognition of this right - invoked there to
explain the concept of author's rights - Kant's
observations (in Works, vol.5, p.349) must be
cited in this respect. Then, also Renouard's
"Traité des droits d'auteur" (Paris 1838/39),
and Bluntschli, "German Private Law", §§.46=50
(3rd ed., pp.110-33), especially §§.46 and 47.
Author's rights are the subject of Bluntschli's
final chapter on "personal rights" (on this see
Section IV below, ibid.). One should also mention
Beseler's "German Private Law", §.88, namely
the interesting f.n.10 there.

** v. Bangerow, "Pandects", §.34, note no.1


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is an object of property law - that is, he may either
be owned by someone else or actually be in possession
of himself. If man is to come into question as a legal
object, however, he must be free - in other words, he
must be in possession of himself, he must be his own
master. The "status libertatis" [state of freedom] is
therefore the main condition for any notion of legal
personality.*
      The only objection that need be made here is
that such an invocation of the concept of property is
theoretically impossible and unproductive. It is not
suprising that Bangerow does not draw any consequences
from this interpretation, which is completely
unsuitable and inapplicable to the realm of the
intellect [i.e. of intellectual creation].
      Puchta's** discussion of "the rights to one's own

____

* Although it is true that Roman law denies (in Law
no.13 pr. D. ad leg. Aquil. 9. 2.) a person's ownership
of his limbs ("by no means are we seeking to imply
that, insofar as we are going to consider these limbs
as the object of a claim, the latter is somehow of
a legal nature" - cf. Bürkel in the quarterly
periodical edited by Pözl and Windscheid, vol.11
(1869), p.198), it does nevertheless allow for the
same kind of legal action as specified in the Lex
Aquilia to be applied to the case where free persons
are injured. (Ulpian ad Edict.: Liber homo suo nomine
utilem Aquiliae habet actionem: directum enim non habet,
quoniam dominus membrorum suorum nemo videtur.) ["A
free man, by virtue of his status, may well have
recourse to the legal action provided in the Lex
Aquilia: for, given that no one can be considered to
be the owner of his limbs, he is not entitled to direct
legal action as such"] One can see clearly how the
concept of property doesn't suit the Roman jurists -
a legal relation has been infringed upon, but the
jurist dealing with the case is unable to come up
with a name for the right that has been injured,
so that is why he has to resort to an analogy. -
The following statutes of ancient Indo-European law,
which are based on the same analogy, are quite
peculiar: "Just as a driver knows how to deal with
stubborn horses, so a wise man will be able to keep
a tight rein on his limbs, which when overcome by
sensuality may well start to roam wildly." ("Laws
of Manu", Book II, §.88); "If a driver kills
someone through clumsiness, he is to be immediately
declared liable to a punishment as severe as for
an act of theft, but half as severe as that for
large animals." (Book VIII, §.296); "A wife, a son,
a servant, a pupil, and a younger blood-brother can,
if they have committed an offence, be punished with
a strap or a small shoot of bamboo, but only on the
backside of the body and by no means on any noble
limb. Whoever thrashes them ignoring this restriction,
burdens himself with the guilt and liability to
punishment of a thief." (Book VIII, §§.299, 300).

** Puchta in the "Rhenish Collection of Materials
for Jurisprudence", vol.3, pp.305-08 - i.e. his
lectures on Institutions: I. §.30, and the Pandects:
§§.22, 46, 114.

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person" or the "right of the personality" suffers from
a wrong definition of the object of this right ("the
will can have itself as its object"), as well as from
the fact that he draws into his discussion the concept
of property, which is quite inappropriate here, and,
lastly, also from a failure to distinguish between
"personality" and the "right to one's own person."*

____

* Savigny (in Syst. I, p.396) raises the following
objection against the validity of assuming a "right
to one's own person": namely, that such a supposition,
if thought through to the end, would lead to the
recognition of a right to suicide. Windscheid (Pand.
§.39, note 1) denies this: "By no means - all that
follows from this supposition is that the suicide
does no injustice to the persons around him. For
all private law is concerned solely with answering
the question as to what extent the will of an
individual should be recognised by the individuals
around him." In my view, Windscheid's conclusion is
unsatisfactory: for a start, there is no prohibition
of suicide in our laws (such a prohibition may well
be laid down by morality and religion, but not by
law as such), i.e. in killing himself, a suicide
does no injustice, but this certainly does not mean
that it is possible to speak of a right to suicide.
For, if we apply Windscheid's perfectly correct
reasoning, the will of the suicide (to kill himself)
does not have to be recognised by the individuals
around him. The effective, albeit forcible,
prevention of a suicide (e.g. by cutting the rope
from which someone is about to hang himself, by
overpowering and even fettering a person whom one
has caught in the act of trying to commit suicide,
by removing the weapon, by dragging someone out of
a river etc.) is no infringement of a right, no
encroachment upon the personality or property
sphere of someone who, it would appear, has been
greatly injured in his "right to his own person".
For, consciously or otherwise, objective law or,
rather, each of us, when faced with such a case,
assumes that someone who wants to kill himself is
not in full control of his powers of mind - the
most primitive instinct, namely that of self-
preservation, being wanting - and that therefore
he should, nay, must be treated like a small child
or like a madman. In the allowableness of saving
all these persons, even if it involves infringing
their property spheres, in this kind of public
tutelage (one might even call it "popular tutelage"!)
a moral factor asserts itself which deserves to be
taken into consideration. The "right to one's own
person" is not annulled by such interventions
which prevent an act of suicide, nor is it annulled
by the laying down of punishments for attempted
suicide (or of property confiscation in the case
of accomplished suicide),


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      It is this latter confusion, as well as an
inaccurate definition of the object of the "right
to one's own person", that renders defective the
otherwise commendable attempt by Neuner* to provide
a systematic treatment and demarcation for the "right
of personality". Neuner brings into his notion of
personality right much that is utterly inappropriate:
e.g. the right of guardianship and a large part of
the guidelines regarding a person's capability to
act [independently]. The reason for this is the
lack of a clear circumscription of this right
precisely in relation to its object. It is quite
rightly that Bürkel criticises this too.** The
confusion - also justly criticised by Bürkel*** -
inherent in juxtaposing the concepts of "legal
capacity" and "rights of personality" is something
for which Neuner is indeed to blame: for legal
capacity is a general attribute of the individual
person. If we are speaking of physical persons, it
is that attribute by virtue of which a human being
can be the subject of any specific right. Legal
capacity is intrinsic to anyone (or indeed to
anything) who, or which, can have one or several
rights in the subjective sense - irrespective of
whether these rights belong to the sphere of
family law, whether they are of an obligatory or
a real nature, or if they (only) consist of

____

rather it is restricted (as Bürkel [op.cit., p.198],
by means of an analogy with property and by invoking
the logic of jurisdiction, demonstrates - thereby
refuting Savigny), or, to put it more accurately:
it is "conserved" by these interventions. Cf. what
Thering ("The Spirit of Roman Law" II, §.33) says
about the "suicidal interpretation of the concept
of liberty in German law". - It is on quite similar
considerations that a verdict (Verdicts, vol.18,
p.102ff.) passed on 14 May 1875 by the Supreme
Commercial Court of the German Empire rests: a
verdict in which an exorbitantly high penalty for
breach of contract is ruled out, so that, in effect,
the freedom of will is being protected against
itself.

* Neuner, "The Nature and Types of Legal Situations
in Private Law" (Kiel 1866), specifically pp.15-27.
On this work, see: Bürkel in the the quarterly
periodical edited by Pözl and Windscheid, vol.11
(1869), p.191ff. (esp. pp.200-03); Burkhard in the
"Journal for the Administration of Justice in
Thuringia and Anhalt", vol.15, p.263ff.; and also
R. Koch in the "German Court Newspaper" edited by
N. F. Hiersemenzel, vol.3, p.133ff.

** Bürkel, ibid., p.202.

*** Bürkel, ibid., p.200.

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"rights to one's own person" (to oneself as an
individual). The latter, characterised as they are
by indicating the object (the "individual"), are
specific rights in the proper sense of the word,
whereas legal capacity is no right but an attribute,
in the absence of which a human being cannot have any
"right to his own person" either, without this
implying, though, that the presence of actual legal
capacity entitles de jure whosoever is invested with
it to rights to his own person.
      The category of "rights to one's own person" is
not identical with that of the so-called "rights of
status", which are supposed to be the opposite of
"property rights". According to Bruns,* this difference
is based on the contrast between man's personal
existence and his command over Nature and fellow men.
The first of these rights are the "rights of status":
these are not just limited to mere personal existence,
i.e. to life and freedom, but also include the
existence and position of people in the various circles
which belong to the collective entity that is mankind,
such as: family, State, community, etc. Their
implication is that the general and specific personal
state of a human being must be recognised by others
and not infringed upon by them, as well as that he
must not be hindered in the exercise of the sphere
of freedom which appertains to these states. This
freedom refers first and foremost to man's general
freedom of activity, and then, in each of the various
particular circles, to the special circumstances which
constitute their very nature.**
      Of these so-called "rights of status", only those
which refer to the "mere personal existence" need
concern us here: it is

____

* Bruns in: v. Holtzendorff, "Encyclopaedia of Law",
Part I (systematic), 2nd ed. (1873), pp.330, 331.

** As Bruns argues - ibid., pp.330-331. Effectively
the same is argued by v. Wächter, "Manual of Private
Law in the Kingdom of Württemberg", vol.2, §.45. For
a scholar who does not agree with these rights of
status, see: Unger, "System of Austrian General
Private Law", vol.1, §.60. On Bruns, see:
Windscheid, §.39, note no.2.


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these which others refer to as "rights of personality"
or rights to one's own person, whereas Bruns doesn't
use any special name for this subcategory of the
rights of status.
      Windscheid* recognises that there are rights
which have as their object the right-holder as an
individual person: with regard to the content of this
category of rights, the individuality of a person is
subject to his will, both where his physical and his
spiritual existence are concerned. In my view, one
cannot but agree with this dogmatic interpretaion of
the rights to one's own person as Windscheid
understands them. One may differ in opinion on the
appropriateness of the terminology used, as well as
on the content of the so-called rights to one's own
person, but what is certain is that alongside the
rights to things and to other persons there are also
"rights to one's own person" (to oneself as an
individual). However, since the content of these
rights is not as clear as Windscheid seems to assume -
Section V of this treatise will show in detail why
this is so - I cannot bring myself to agree with
Windscheid's observation that these rights do not
require a separate treatment in the system of
private law.**

III.


      No matter whether one sees, with Thering,***
the basis of this right in the need for a guarantee
of use [or exploitation], that is, in the need for
a protection of interests; or, with Windscheid,****
in the freedom of the will, in the necessary
protection of one's exercise of will-power; or,
with Bruns,^ in a combination of these ideas, that
is, of the protection of interests and that of
freedom of will, it is possible - nay, necessary -
to derive "rights to one's own person" starting
from any one of these points of view.

____

* Windscheid, "Pandects", §.39.
** See below, p.201, f.n.27.
*** Thering, "Spirit of Roman Law", §.60.
**** Windscheid, "Pandects", §.37 and f.n. 1, 2,
and 3 there.
^ Bruns, op. cit., pp.329-30.

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I for my part take the view that the protection and
limitation of the spheres of volition [of each
individual], that is, of the scope for arbitrary
actions, is a means of protecting the interests of
[all] individual persons and, in effect, a way of
facilitating as much as possible each individual's
realisation of his overall life potential [for
prosperity and happiness] as a member of the species
(cf. my essay "The Civilised and Constitutional
State and the Spheres of Private Law" in Hartmann's
"Journal for Legislation and Judicial Practice in
the Field of German Public Law", vol.3 (1877), no.2),
and see in the recognition of this subordinate
relationship the moral principle of contemporary
thinking on law.
      It does not clash with any of the modern
definitions of a right in the objective sense to
say that every person has a right to turn to account
his personal qualities and indeed to use and assert
them insofar as he does not thereby infringe the
legal spheres of other juridical subjects. That is,
one can only say that each person has such a right
if everyone else is in duty bound to recognise and
therefore not to violate this right. However, where
this is the case with regard to the content of any
positive right, one must then conclude that each
person has that right. For the following observation
by Bruns (in response to Unger and others) is
completely evident and irrefutable: "An entity which
must be recognised and may not be violated - with
which, therefore, a duty is associated - is a right.
Otherwise, its violation would not be an injustice."*

____

* No one surely will deny that deliberate or culpable
bodily harm is infringement of the law. But what
sphere of rights is it that is being trespassed on?
Evidently not just public law - that is, criminal
law - but also the sphere of private rights of the
injured party or, rather, a part of it: a subjective
private right. Now, should it really not be
legitimate to ask about the nature of this private
right? Can such an inquiry really be unnecessary?
The injuring party clearly does violate a private
right - which is it? The reprinting of someone else's
work is an infringement, but the nature of the right
that is thereby violated - a right which must be
defined affirmatively - has been misunderstood for
such a long time! The attempt to identify the
violated right apart from the act of infringement,
which in any case is beyond doubt, and, moreover,
to try to picture to oneself this right in an
uninjured state and to

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      From this it follows that if according to positive
legislation everyone is obliged to permit anyone else
to make use of his personal qualities right up to the
limits of other individuals' spheres of rights - if
everyone is obliged to recognise that each other
person is entitled to the free utilisation of his
qualities, as we have just mentioned, and to not make
any attempts whatsoever to hinder or injure him in this,
then we may and must conclude that there is a right to
the use of these qualities within the limits of these
spheres.
      As a result of everyone being obliged to "permit"
any other person to make use of his faculties, this
utilization, instead of being an arbitrary act on
someone's part, becomes a legally guaranteed action -
that is, the user's discretion is turned into a
franchise, a right of use - precisely thanks to this
legal protection.
      On the basis of these jurisprudential arguments,
it is possible to make the following assertion: with
regard to the content of the positive rights, there
are a number of situations in which the will of a
juridical subject does not dispose of things or
persons (or of the achievements or faculties of other
persons), but, rather, of the juridical subjects'
own faculties as such, and which are raised to the
status of legal situations by positive law. The
legal character of these situtations consists in
the fact that the subject is entitled to undertake,
with his faculties, the actions specified by the
laws and to claim for himself (also in the proprietary
sense) the fruits attained through them (as an
achievement of the individual), and that with regard
to this subject every other juridical subject is
obliged to non-obstruction, that is, to let the former

____

define it does not, as Gerber observes againt Bluntschli
and others ("Yearbook of Dogmatics", vol.3, pp.364-65),
stem "from a misled sense of juristical aesthetics", but,
on the contrary, from a pressing necessity of legal logic.
Someone who undertakes such an attempt does not, as v.
Gerber would have us believe (ibid.), resemble "an
architect who erects over the foundations of the modest
kitchen he was asked to build the hollow walls of a
castle [i.e. a castle in the air]". Rather, he resembles
someone who from the manifestations of pain shown by a
living being infers the existence within it of living
nerves.


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undertake the given actions and to let these actions take
place (including the fruits that result therefrom as an
achievement of the acting individual).
      What is common to all these legal situations, their
juridical core and unifying trait can be expressed in
this formulation: the legal subject has the right to
have his individuality recognised as such. By
"individuality" one should understand all that is
characteristic of a subject as an individual existing
on his or her own right, assumed to have various specific
qualities. But it is not in every respect that
"individuality" as such is recognised and protected by
law in the manner indicated. For in several situations
what is individual about physical legal subjects is
completely irrelevant* to positive law, and in many
cases actually contrary to it.** In some respects,
however, the striving for individuality - the subjects'
striving to exist and assert themselves as individuals -
is recognised by objective law, and the subjects are
allowed to make individual use of all faculties at
their disposal under the aegis of legal protection.
"Man is entitled to a right to life and the functions
in which the life of the body manifests itself, as well
as to not being bodily harmed, and, finally, to
unhindered disposition of his own body (freedom).
The human will as such can be considered to be the
ultimate touchstone for oneself even where one's
intellectual existence is concerned. This leads one
to assume a right to activity of the intellect in its
various functions." (Windscheid). The activity of the
intellect and of the body is, in a large number of
situations, recognised and protected by the laws only
in an absolute [general] sense, but in some cases this
protection is given with special emphasis on the fact
that what is achieved by this activity, or the actual
success thereof,

____

* E.g. with regard to matters of taste, aesthetic
views and suchlike.
** E.g. even the instinct of self-preservation, if
it manifests itself, say, as cowardice in a soldier.

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is to be ascribed to the subject manifesting itself
as an individual in such-and-such a respect. The
egoistic striving of individualization, however, is
active both in the situations mentioned just now,
whose individualistic thrust is explicitly recognised
by objective law, and in those other situations in
which the application of one's physical and mental
facutlties is protected only in a general sense.
(I am acting egoistically, individually, and
individualistically not just when I am writing a book,
but also if I'm reading one.) Depending on how
strongly this individualistic tendency comes to the
fore, one may make the following distinctions:
      a) The human instinct to live, move freely, and
do everything which makes life (without encroaching
on the spheres of other people's rights - something
which is, of course, presupposed here throughout)
individually as pleasant as possible, is met by the
tenor of the laws, which elevate these primitive
manifestations of egoism, namely the individual's
demand for self-preservation, to a right.
      b) The higher striving of man not just to apply
his individual faculties in order to make his life
individually as agreeable as possible, but to also
use them to see himself recognised as an individual,
is matched by legislation ensuring legal recognition
and protection of a specific name which distinguishes
the individual (in commerce, especially, through
registration of the trade name and trade-mark
protection), as well as protection of the respect
which is normally associated with this individualisation
by means of a name (i.e. the protection of a person's
reputation).
      c) In some situations, the subject who is acting
in individual fashion, is concerned precisely with
having the authenticity of the result of his activity
recognised and protected - in other words, that the
individual be considered the author of a particular
achievement and that, therefore, all (successful)
consequences accruing to the author of this individual
achievement really are channelled back to the
individual concerned. It is from this point of view
that one must look at all kinds of author's rights:
that is, literary and artistic

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author's rights, inventor's rights (protection by patent),
and the protection of patterns and designs.
      The definition of these "rights" as "rights to one's
own person" is not to be recommended. For "person",
according to the generally accepted terminology in this
field, means a "juridical subject", whereas what we are
dealing with here is not a right of the subject to the
subject himself. My view is that the term "person" should
be reserved and kept as a synonym for "juridical subject"
alone. The right which comes to the fore in all these
"rights to one's own person" is a right to the use and
utilization of one's own physical and mental faculties
(these, however, are not the same as the subject or
person!) to the exclusion of any attempts by others to
prevent such use and utilization. What we are dealing
with is an activity of the individual, control of what
is individual about oneself in relation to everything
extraneous to it, in relation to everything else and
to all others - that is, a manifestation of the
striving for individualization as such in the threefold
gradation mentioned above.
      The term "right of personality" strikes me as
either meaningless or incorrect. For "personality",
according to the juristic jargon, is synonymous with
"legal capacity". What, then, is a "right to legal
capacity" supposed to mean? If by "personality" one
were seeking to refer to the totality of personal
correlations, this would be to ascribe an incorrect
meaning to the compound word which we are rejecting
here. The rights we are concerned with here have
nothing to do with the totality of a subject's
personal correlations. On the other hand, if by the
designation "right of personality" one has in mind
an axiom to the effect that: by endowing a being with
personality, it acquires not just the capacity to
have rights but instantly already has actual rights -
rights which arise precisely from the personality
(through some form of parthenogenesis!) - then one
is thereby committing a most grave error which has
been condemned by jurisprudence ever since the
historical school started to prevail. This
observation by itself is probably sufficient to
refute the opinion that the rights we are discussing
here are somehow "innate rights",

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"original rights",* "innate, inalienable human rights" in the
sense that they are contained and proclaimed in "natural law"
and that it is not the task of State legislation to create them,
but simply to recognise them as immutable. Not a single one of
all the rights pertinent to this discussion has been uniformly
recognised in all nations at all times or, in fact, even
recognised as such.** These rights too have been created by the
positive law (laws and customs) of the various national
territories and historical epochs in accordance with the
particular cultural factors and necessities prevailing at any
one point, especially under the influence of specific political
economic ideas. They all, however, involve the following (albeit
set forth in different ways) legal notion: juridical subjects
demand the recognition of their individuality, recognition of
their activity as individuals, and recognition of their control
over what is individual about them. For this reason, in
accordance with the way such rights as "real [property] rights"
and others have been called after the object they refer to, it
seems fitting and advisable to use the designation "individual
rights" for the category we are dealing with here.

IV.


      The individual rights have this in common with most of the
real rights: they too are directed not at one specific obligated
person. Rather, it is the collective of all other persons which
is under obligation with respect to them, insofar as every
person is obliged to recognise another's individual right in
all those situations for

____

* I am thinking in particular of the "original rights" constructed
by Fichte: to uninterrupted freedom, to inviolability of the
body and to free and constant influence on the material world.

** "Protection against reprinting depends purely and simply on
laws", says v. Gerber, "Private Law", §.219, note 4, 12th ed.,
p.595. It is certainly correct and germane to point this out
in view of attempts to construct such "natural rights", but what
v. Gerber seeks to refute in this way - namely, the supposition
of a positive "author's right" - isn't actually refuted at all.
For doesn't protection against theft also purely and simply
depend on laws? And yet there is such a thing as a private right
of ownership.



Chapter 1 Page 16


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positive legislation lays down the individual right and
protects it, and insofar no one is obliged to a positive
action with regard to the holder of this individual right,
but, rather, everyone is just obliged to respect and refrain
from [encroaching on it]. On the other hand, the individual
rights do differ from the real [property] rights precisely
in the one factor which is characteristic,* namely, in the
object they refer to. The immediate object of every domination
by the will ["Willensherrschaft"] granted by real rights is
a thing, i.e. a part of the insentient outer world,** whereas
the object of the legal power which is granted by an individual
right is what is individual about a person - namely, every
personal activity of one's own person and the effect of its
being used in this way, insofar as this effect does not
happen to be protected by other rights** or remains unprotected.***
      Similarly, the individual rights differ from the [personal]
claim rights and those established by family law also in terms
of the object to which they apply, for their content is not
the control over some other person, but, rather, to what is
individual about one's own person.
      From these points of contrast, it follows that

____

* Windscheid, "Pandects", §.40, esp. note no.1.

** For this reason, it is impossible to approve of the way
Dreyer ("German Imperial Civil Law" [Leipzig 1876], p.44ff.)
simply puts the author's rights laid down by Imperial law,
as well as trade-mark protection, into the category of
"rights to things". - Klostermann, whose investigations in
this area are distinguished by remarkable experience and
knowledge in most matters of detail, is, however, decidedly
inconsistent when trying to establish a basis for his concept
of "intellectual property". Essentially, he too assumes a
real right, without noticing the disparity in the objects
[of these rights] and without bearing in mind that the author
isn't just able to forbid reproductions of his work, but can
also invoke the authenticity of the original in absolute terms.

** As, for example, by the right of specification, in which it
is possible to discern a recognition of a kind of author's
rights by the Roman laws, as implied by its consequence for
property law.

*** Like, for example, the artistic activity of an actor,
insofar as its particular manner, method etc. are not
protected against imitation.

Chapter 1 Page 17


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individual rights cannot be classed amongst the real rights
or the claim rights or those enshrined in family law, nor,
needless to say, can they be incorporated into the law of
legacies. If they require a separate treatment in the system
of private law,* then they also have to be classified
separately.
      They do need to be discussed separately, since their
content is by no means made up solely of legal actions
concerning offences [against them], which, to a certain extent,
are just the most salient tips of the entity they constitute,
nor is this content self-evident, nor can it be said to be
"certain as far as its limits are concerned" (as, for example,
a glance at §§.5, 6, 44, 46, 47, 52 etc. of the Author's
Rights Law of 11 June 1870 will show). The "recognition" given
to the individual rights in the positive laws by which they
are created, asserts itself in the three following directions:
      A. They are laid down by positive laws - in detail. Their
content is circumscribed, their existence in a non-infringed
state is defined [by these laws]. We are thus dealing with
preventive measures for the protection of the individual
rights, and, in particular, it is quite often the case that
special arrangements for establishing the right are prescribed
and introduced.
      B. In cases of infringement, prosecution takes place:
either a (public) punishment or a private legal restitution
(or fine), or both, with or without the possibility of waiving
or coming to terms about [the compensation due].
      C. Legal transactions involving the individual rights
can be carried through - in particular, they can be alienated
(wholly or partially transferred to others) and bequeathed -
though not all of them in the same way and, in fact, not all
of them as such,

____

* Something that Windscheid (§.39) denies, without, though,
extending the concept of the rights in question beyond the
first gradation of these (see p.18 above).
Had Windscheid counted author's rights, trade-mark protection
rights and suchlike - rights of which he actually says nothing -
amongst the "rights to one's own person", I am sure that he
too would have devoted a separate treatment and systematic
discussion to this category after having expanded it thus
(cf.Section II above).

Chapter 1 Page 18


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but which ones and how they may be alienated is not always
determined by the "nature of the thing" (or "the nature of
the person"), but frequently by positive law alone. Some
of the individual rights are thus negotiable ("in commercio"
[tradewise]) only to a limited extent, others to an
unlimited extent.
      In all three directions, the legislations of the
various States and historical eras differ widely and even
the rights themselves vary one from the other. The following
classification (Section V) is meant to give an overview
as to what extent German civil law "recognises" the
individual rights, precisely in these three directions.
In the system of private law, there are two alternative
ways of classifying these rights. One can either treat
them as a special category of private law rights (in a
special "law" [system] which might be called "individual
law"), fully co-ordinated alongside the real rights
(property law), the claim rights (law of obligations)
and so on; or one can consider the theory of individual
rights together with the theory of the juridical qualities
of persons (such as nationality, domicile, residence in a
local community, legal capacity, freedom of action, and
so on), though not so as to subordinate it to both of
the two last-mentioned qualities: rather, they are to be
co-ordinated alongside all these aspects of personal law.
      The delict obligations and criminal cases which arise
from the violation of, or encroachment on individual rights,
of course, need to be dealt with separately in the law of
obligations and criminal law, respectively, but it is in
the individual rights that they have their systematic and
private law basis, just as lawsuits concerning theft have
their basis in [the right of] ownership, and so on.

V.


      The scope, content, origin, and expiry of the individual
rights, as well as their official protection, cannot, as
indicated in the preceding discussion, be brought together
to form a jurisprudentially exhaustive and uniform [system],
and, moreover, these rights are not



Chapter 1 Page 19


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laid down uniformly by positive law either. We shall now
attempt to show in a clearly arranged format the extent to
which individual rights are established in German Imperial
law - in each of the three aforesaid directions A, B, and C
(p.201).

            1. The author's right to literary works,
illustrations, musical compositions, and dramatic works is
laid down by the Imperial law of 11 June 1870, namely as follows:
      A. With regard to recognition in the non-infringed state,
preventive protection, and so on, by the defining articles §§.1
and 2. From §.13 it follows that juridical persons and (taking
into account modern developments) equivalent institutions are
entitled to it too. The right is limited in duration (§§.8-17).
In special cases, for the protection of this author's right,
registration in a roll which is kept by the City Council of
Leipzig (Registration roll, §§.39-42) is prescribed - namely,
in the case of translations (§.6), works published anonymously
or under a pseudonym (§.11), and for the protection of author's
rights which are based on a privilege (§.60). From the need -
recognised also by the legislator - to lay down explicitly
and categorically what counts as reprinting and what doesn't
(§§.5, 6, 7, 44, 46 etc.), it is quite obvious that the
content of this author's right is not unambiguous as such and
that it cannot be constructed in the way one can construct a
specific circle with absolute certainty when one knows its radius.
      B. In case of infringement, a punishment and a right of
damages come into effect if the reprinting has been carried
out deliberately or recklessly with the intention of circulating
[the reprints] (§.18 paragraph 1). The punishment is omitted if
the reprinter has acted thus in good faith, because of a mistake
(§.18 paragraph 2), and instead of damages it is possible to
claim just compensation (§.18 paragraph 4). Where the reprinter
is not actually guilty, he is not liable to pay in compensation
more than what his profit had amounted to (§.18 paragraph 6).
For a special case of deliberate or reckless reprinting -


Chapter 1 Page 20


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namely, that of citations in which the author being cited
isn't named - punishment is threatened but no entitlement
to restitution is granted (§.24).* As for the scope of
these restraining provisions, the following articles are
of significance: §§.43, 45, and 60.
      C. This right is negotiable to a high degree: it passes
to the [author's] heirs (§.3 Clause 1, §.8, §.12) and can
be transferred wholly or with some restrictions, both in
lifetime and as a result of [the author's] death (§.3
Clause 2. Cf. also: §§.43, 45, 50).**

2. The author's right to works of the fine
arts

is established as follows by the Imperial law of 9 January 1876:
      A. It is determined affirmatively by §§.1, 7, and 8,

____

* This Imperial law invalidates a number of objections which in
the past have been raised against the existence of a special
"author's right". That there isn't just a mere (unfounded)
"delict of reprinting", or that the author's right can only be
defined positively as a "publishing right" and is only effective
as such, all this has already been refuted on several grounds
by many jurists. Here suffice it to observe that our law also
protects the author in his literary honour against plagiarization
and against the indiscreet publication of a manuscript that
had been given on a confidential basis (Cf. §.5a Paragraphs 1
and 2, and §.24 pace v. Gerber, "Private law", §.219, 12th ed.
(1875), the note on pp.599-601). The reasoning with which v.
Gerber, in the supplement to his essay in the "Yearbook for
Dogmatics", vol.3, pp.397-98, seeks to refute the notion of
an independent subjective right of the author - namely, by
taking as a premise the lack of a legal distinction between
the facts of a case which is supposed to give rise to a
liability to repair and those of one in which a punishment
is supposed to be sentenced - acquires, in view of §.18
Paragraphs 2 & 6 and §.24, the opposite effect: it now tells
in favour of the "author's right" and against v. Gerber's theory.

** The negotiability of this right, as well as of the other
author's rights, is rightly emphasized by Thöl ("Commercial
Law", 1876, 5th ed., §§.206ff.), who also makes the equally
valid observation (op. cit., vol.2, pp.11-12) that the
author's right to certain products of the intellect cannot
be covered exhaustively in commercial law (for it has to be
discussed within the context of German private law).

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together with the not at all self-evident §§.3-6. (§.7 can
also be applied to the reproduction by artistic means of a
photograph). In two cases, works are to be entered in the
registration roll (as above in 1 A): namely, in the case of
works that appear under a pseudonym or anonymously (§.9)
and where the protection of a privilege is required (§.19)
The duration of the right is determined by §§.9-15.
      B. The prosecution of infringements (according to §.16)
is carried out in an analogous way to what was said in 1 B.
      C. This right can be bequeathed and transferred (§.2) -
exactly as in 1 C. It is highly characteristic and says much
in favour of the independent nature of an author's right as
an individual right that in the peculiar, but wholly appropriate,
§.8 the author's right is dissociated from ownership of the
work of art.

            3. The author's right of the photographer

is formulated as follows by the Imperial law of 10 January
1876 concerning the protection of photographs against unauthorised
copying:
      A. The objective right is recognised positively and generally
by §.1 - in contrast, moreover, with a right of exclusion
[Einzelrecht] which is based solely on a privilege (§.1 Paragraph 2)
- limited by the provisions of §§.5 and 6, but, on the other hand,
is extended beyond the realm of photography in §.11.
      B. The prosecution of infringements (according to §.9) is
carried out in an analogous way to what was said in 1 B.
      C. This right may be bequeathed and ceded, just as in 1 C.
It is worth pointing out the "transfer of the right ex lege
[by law]" established by the last clause of §.7: in the case of
photographic portraits, the right of reproduction passes
automatically to the orderer, without this having to be
stipulated in a contract.

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            4. The author's right to designs and patterns*

is created as follows by the Imperial law of 11 January 1876:
      A. This right, which is defined by §§.1 and 2, and
determined in more detail by the content of §§.4, 5, and 6,
needs to be confirmed officially: that is, it is only
protected if the design (or pattern) has been submitted
to be entered into the design register (§.7). The design
register is kept by the courts of justice which are
responsible for keeping the commercial register [register
of companies] and its requisite sections are regulated by
the law (§§.9-13). For foreigners the appropriate registration
authority is the commercial court in Leipzig.
      B. The prosecution of infringements of this right takes
place according to the guidelines mentioned in 1 B: the civil
suits which arise as a result of this are commmercial cases
(§.15).
      C. This right may be bequeathed and alienated (§.3,
just as under 1 C).

            5. The individual right of trade-mark protection**

is set forth as follows by the Imperial law of 30 November
1874 concerning trade-mark protection:
      A. In terms of its content, it is established positively
by §.8, in conjunction with §§.10 and 18. Accordingly, it
shows itself to be a consequence of the trade name right,
which, being the right to a specific name, is a genuine
individual right (see pp.186, 187 above) - a right to
assertion of individuality whose content is fully defined
by positive law. In order for this right to come into existence,

____

* For the scholarly literature on trade-mark and design
protection, see Voigtel (cf. the note on p.5 above), p.143.
See also the Law on Trade-mark Protection,
the commentaries by Endemann, Landgraf, and Meves; and, on
design protection specifically, the investigation (and draft)
by Landgraf (Leipzig 1875).

** For the relevant literature, see the above footnote.

Chapter 1 Page 23


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an application has to be made for registration in the
commercial register; if deleted from the latter, the right
is terminated (§§.1-6).
      B. Prosecution of infringements is effected through
public punishment (§.14) and private lawsuits seeking
interdiction, damages (or compensation), and destruction
[of any wares wrongfully bearing the registered trade-mark]
(§§.13-17). These lawsuits are commercial suits (§.19).
As from 26 February 1876, the penal clause of §.14 has
replaced the (no longer existing) §.287 of the Imperial penal
code (revised on 15 May 1871).
      C. This right can be transferred, but only provided
that the company name is transferrable and that the latter
is actually transferred at the same time (cf. §.8 and
Articles 22 and 23 of the commercial code).

            6. The individual right of trade name protection

is regulated by the Imperial commercial code (Art. 15-27):
      A. The concept of this right follows positively from
Articles 25 and 27. The characteristics necessary for the
existence of this right (Art. 16-18, 20), as well as the
requisite registration (Art. 19, 25, 26) in the public
commercial register (Art. 12) are strictly regulated by the
law. The individual right nature of this right is most
evident in Art. 16 (mandatory indication of [the company
director(s)'] surname), Art. 22 and 24 (permission required
for carrying on the trade name), and Art. 23 (inmutability
of the trade name in itself alone [?] - the trade name is
not a thing, but an individual quality of the company which
serves in place of a person!). Juridical persons and
institutions regarded as equivalent for this purpose are
also entitled to the right to a trade name, just as in the
case of the author's right (see 1 A above).
      B. The law grants anyone injured by the unauthorised
use of a trade name (that is, not just the owner of the
firm, although it is he who is principally meant) two legal
actions (both of a commercial law nature): that of suing
for interdiction of the unauthorised use of the trade name,
and that of claiming restitution (Art. 27). Alongside these,
however, there is also a protection of the trade name right
under public law, which takes effect even when no damage
has been ascertained. (Art. 26, esp. Paragraph 2).



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      C. The trade name can be bequeathed and transferred amongst
living persons, but always only if it is accompanied by the
firm it is designating (Art. 22, 23, 24).

            7. The inventor's right

(patent right) hasn't been laid down yet by Imperial law.* From
the patent laws which have come into force so far, it is not
difficult to prove the existence of a special patent right
which is analogous to the individual rights - especially the
author's rights- that we have just discussed (I-IV). The French
patent law of 5 July 1844 (loi sur les brevets d'invention)
defines, in Art. 1 and 2, the inventor's right positively: in
order for the right to exist, official confirmation is necessary
(though without previous detailed examination). This right is
limited there by Art. 3, 4, 15-17, 29. For the purpose of
prosecuting infringements of the inventor's right, actions
for cancellation, suits for forfeiture of the patent (Art. 34)
and actions for damages (Art. 46) are envisaged by this law,
whereby the public "délit de contrefaçon" [offence of fraudulent
imitation] is subject to public punishment (Art. 40-41). The
inventor's right is wholly or partially transferrable (Art.
20-22). Cf. Renouard, "Traité des brevets d'invention" (Paris
1865, 3rd ed.); Klostermann, "The Patent Legislation of all
Countries" (2nd ed., 1876), p.316ff.: 'French patent legislation'.

____

* A German Imperial law on the protection of inventions is in the
process of being developed: the draft for it has been presented
by the Imperial Chancellor to the German State governments. Cf.
"Advertiser for the German Empire", 1876, issue no.275,
supplement no.1, where the text of the draft is given together
with comments by the Imperial Chancellery Office. On this matter,
see: "Charitable Weekly Journal" (Würzburg), 1876, no.51/52,
p.428ff., and, in particular, R. Klostermann's essay in the
previous issue of this publication (vol.35, p.11ff.), as well
as 'Minutes and conclusion of the consultations held by an
expert commission assembled up by the Imperial Chancellery
Office to discuss the legal regulation of the patent system'
(ibid., pp.92-184).

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VI.


      In an extremely important respect, German Imperial law
has recognised the individual right to life and health -
namely, by the Imperial law of 7 June 1871 on the obligation
to compensation for accidental deaths and injuries occurring
in the railway service, in the operation of mines etc. The
actions founded upon this law are of a private legal nature
and are not actually criminal lawsuits: the injured person
or, where the accident was mortal, his surviving relative(s)
may, in the case of Art. 1 sue solely on the basis of the
fact of the damage that has occurred, and even in the case
of Art. 2 no charge of malice or negligence can be made
against the person liable to provide compensation.

Conclusion.


      The further elaboration of the theory of individual
rights must be interrupted here, so as not to clash with
the layout and task of this journal. Imperial legislation
hasn't provided any further private legal material which
could be used in an exposition of this category of rights,
but in terms of penal law it has made various provisions
to protect the other individual rights - the right to life,
to wholeness [of body], to the free and exclusive use of
one's faculties, and to honour. Suffice it to point out
here that the theory of private rights must and will
certainly devote much more attention to these rights than
has been the case so far. The latter must be incorporated
into the theory of the impossibility of fulfilment [of an
obligation] in the law of obligations, into the theory of
insurance, but, above all, they must be used as the basis
of the law of delict obligations. They will help to round
off and deepen the system of private law as well as that
of penal law. The theory of necessity [Notstand*] and of
self-defence cannot, in my view, dispense with the concept
of individual rights, and the same holds for the theory of
libel. Then there are a number of other questions which it
would be important to investigate applying the historical
and comparative method, such as, for example

____

[*Translator's note: "Notstand" in German law means "a
state of danger for legally protected interests from which
the person subject to the danger can escape only by doing
injury to the legally protected interests of another" - cf.
E. Haskin, "German Law and New Problems of Legislation in
Germany", Journal of Comparative Legislation and
International Law, vol.14 (1932), no.4, p.179]


Chapter 1 Page 26


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the different intensity with which the positive laws protect
the one or the other of the individual rights, (i.e. over
which real rights or claim rights the individual rights must
take precedence, or vice versa); then the question as to
which individual rights may be renounced or could be previously,
and so on. How rudimentary the theory, say, of the right to a
specific name still is, can be seen from the very accurate and
commendable observations by von Gerber (in "German Private Law",
§.34, note 1), which give a clear enough picture of the lacunae
in the "right to a name". And yet isn't a person's surname and,
especially, a trade name of the utmost importance in many
respects in legal practice?! - I think that it would not be
entirely without merit to draw attention to this evident
deficiency, or incorrectness, of the [legal] systems, especially
as a clear definition of a series of recently established
institutes (in particular, those under the aegis of commercial
law) cannot be carried out at all without filling this gap,
without rectifying this incorrectness. As a result, what now
only seems to be but a fragment would fit into place, thereby
making it possible at last to fully understand the nature [of
individual rights].


Translation by: Luis Sundkvist

    

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