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Gareis: Juridical Nature of Author's Rights (1877)
Source: Digital library of the Max-Planck-Institut für europäische Rechtsgeschichte.
Citation:
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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187
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.
No Transcription available.
Source: Digital library of the Max-Planck-Institut für europäische Rechtsgeschichte.
Citation:
Gareis: Juridical Nature of Author's Rights (1877), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | Commentaries: [1]
Translation only | Transcription only | Show all | Bundled images as pdf
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.
No Transcription available.