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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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188
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
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
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.
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
No Transcription available.