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Kohler: Author's Right, Jena (1880)

Source: British Library 5604.aa.3

Citation:
Kohler: Author's Right, Jena (1880), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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Chapter 1 Page 2


THE AUTHOR’S RIGHT,

a civil law treatise.

________

Which is also a contribution

to the theory of property, joint property,

legal transactions and individual rights

by

Dr. J. Kohler,
Professor at Würzburg.


(Special edition reprinted from Ihering’s Almanac XVIII,
supplied with an index).

______________________

Jena,
published by Gustav Fischer
formerly Friedrich Mauke.
1880.


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[...]

      Moreover, heightened individualism and perpetuity of
property, at least as far as land and real estate are concerned,
are also just a historical form, which is by no means the only
possible and historically feasible form of appropriation of
cultivated land (1). On the contrary, wherever a people has
moved on from the stage of communal field farming (2), we
will come across a system whereby the individual plots of
land are allocated to the villagers only on a temporary basis,
so that after a while these return to the community again,
either for re-allocation or for communal farming. Such is the
case with the Russian mir (3), with the Indian pattidari system –
Mayne, A Treatise on Hindu Law and Usage (1878), p.177 –
as well as to some extent the Serbian zadruga; and in
the history of German agriculture one can find similar arrange-
ments (4). Even where a system of private property has already
developed, one can still, in many cases, encounter the following
arrangement whereby after a certain
________

      2) From the zemindari system in India – Mayne, A Treatise on
Hindu Law, p.176f.
      3) Cf. also Kawelin in Tübinger Zeitschrift für Staatswissenschaften
XX: 6f.; Kulischer in Zeitschrift für Völkerpsychologie X: 370f.
      4) Cf. also Roscher, Perspectives of Political Economy, vol.1, p.207f.,
and The Political Economy of Agriculture, p.208f.; Thudichum, The
Constitution of County and Market in Germany (1860), p.171; Schröder in
Investigations on German History XIX: 144f, 151f.

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term of individual tilling the field becomes subject, for a
longer period, to communal exploitation by the villagers: e.g. when
a few years of crop farming are followed by a longer
period of communal pasturing (Dreeschwirtschaft) – cf.
Hanssen in Tübinger Zeitschrift für Staatswissenschaft
XXI: 55f., XXXII: 45f, and to this day we can still find
examples of this – here we have an unmistakeable analogy
with the objects of author’s rights [Autorrechtsgüter] we
have been discussing, for these fall, after a period of
individual exploitation, to the community, because
in both cases the cultural circumstances demand such
a transition. Ample proofs of these points are to be
found in Laveleye’s work on Primitive Property
(translated from the 3rd edition, with additional
Material by Bücher, 1879), which yields a great deal
of new perspectives on the history of culture and
law (the two should no longer be treated separately);
there is also much that is instructive in Post, The
Origins of Political and Legal Life, p.276f. If it is
argued that the objects of author’s rights are not a
real property, then all one is doing is to acknowledge
that the ownership concept of Roman law simply does
not fit all situations, that it is a historical product of
Roman law, and that in other cultural epochs
ownership has developed according to other norms.
For example, personal property [Mobiliareigentum]
has, as a consequence of the Germanic legal
principle: “Hand must guard hand”,* undergone
a completely radical transformation (1), as
Schloßmann (Contract, p.206) also rightly
observes. Given this state of affairs, one cannot
but be amazed that some people, invoking the
fact that the author’s rights we are discussing do
not tally perfectly with the historical development
of Roman law, have sought to deny that these
______

      1) Likewise by the frequently invoked
principle in Jewish law whereby a thing cannot
be taken away from its bona fide purchaser
unless the purchase price is reimbursed – Stobbe,
The Jews in Germany, p.119; Roscher,
Perspectives of Political Economy, vol.2, p.332.
______

*) ‘Hand muß Hand wahren’, which meant that an
owner was obliged to protect his property, and if he,
say, entrusted it to someone else who then went on
to sell it without his permission, he could not recover
it from the buyer (regardless of whether the latter
had bought it in good faith or otherwise).

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are of a quasi-proprietary [eigenthumsähnlich] nature (1),
even though the Roman theory ceases of itself to be
valid in the case of certain goods, e.g. the waterwave
of a river, and even though you can still find in Germany
today vestiges of the earlier agrarian system whereby
after temporary individual exploitation land would
become subject to communal use. However, this
amazement ceases as soon as one bears in mind how
little the legal views of other nations have since
then been considered using a comparative approach.
An exposition of the property relations of the
various primitive and civilized nations affords us
at once with an eminently broader mental horizon,
with a hitherto unsuspected new perspective. And
even if many people still wish to shut their eyes
to this fact, the time when jurisprudence will
conquer these realms too has come! (2)
      If we now ask ourselves what the positive
conclusions of Gerber’s* theory are, it will be seen
that their tenor is as follows: No author’s right
exists; all there is, is just a punishment laid down
in the law for the sake of maintaining the public
order, and if authors do indirectly profit by this,
then it is merely a spill-over effect, a surplus
profit – it is certainly not the purpose of the law
(see, in particular, p.274f.). One might just as
_______

      1) Friedländer, Domestic and Foreign Legal
Protection against Reprinting (1857), p.4, even
argues that a temporal limitation of this kind
is not to be found “in any other property law
system in the jurisdiction of any other nation.”
One should like to ask him if it is not true
that Roman law envisages such a thing as
usufruct! And what about hereditary tenure
in all its diverse varieties?
      2) Cf. also Post, The Natural Law of
Right, p.59, his The Origin of Right (1876),
and, in particular, The Origins of Political and
Legal Life (1878); even more recently,
also Bernhörst, Zeitschrift für vergleichende
Rechtswissenschaft II: 253f. Ruge, in Globus
1879: 89, says that the best indicator of a nation’s
cultural level is the breadth of its mental
horizon. The same is true of jurisprudence.
Breadth of mental horizon is the measure of
how far it has advanced, and it would be
pointless to hope to ever get close to the
fundamental principles if one restricts
oneself to the law of just one or two nations.
_______

*) Kohler here is countering Karl Friedrich Wilhelm von Gerber’s
article “Ueber die Natur der Rechte des Schriftstellers und Verlegers”,
Jahrbücher für die Dogmatik des heutigen römischen und deutschen
Privatrechts 3 (1859): 359-98. Available online at:
http://dlib-zs.mpier.mpg.de/mj/kleioc/0010/exec/showtoc/%222084719_03%2b1859%22
Kohler’s references are to a reprinted version of this article in
Gerber, Gesammelte Juristische Abhandlungen (Jena: Fischer,
1872), 261ff.

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well do away with the concept of property in the
laws on theft and declare the protection of
proprietors to be simply a spill-over effect
of the state’s policing and public prosecuting
activity. The transfer of the author’s right to
another would accordingly be just the transfer of
this spill-over; pledging it would be no more than
the pledging of the spill-over; its execution would
be just execution directed at this spill-over state
[Reflexlage]; the creditors’ claims
in case of bankruptcy would be given preference only
according to this spill-over state, and if two persons
were to quarrel amongst themselves about the
author’s right, it would just be a quarrel about
whom the benefits of this spill-over state are to
accrue to. It would be exactly the same if the
transfer of property and the recording of this in
the land register just meant that the status and spill-
over state protected by the law passed on
to the purchaser (1). And when the laws
refer to a transfer of the author’s right or of
the patent right, etc., we would then have
to accept that this is actually just a figurative
way of putting it, since all that is being
transferred is a situation, an interest, but
no right as such!
      However, a person’s protected interest
is precisely what one calls a right – spill-over
effects cease to be spill-over effects and
become rights as soon as they enjoy legal
protection. A contract for the benefit of a
third party secures a right for that third
party as soon as the latter is entitled to
demand its fulfilment, that is, as soon as
he is protected and is not just parasitically
drawing on a situation which was created
_____

      1) One really is tempted here to
think of Gogol’s Dead Souls – that is,
deceased serfs who, however, had not
been struck off the census and were
therefore still included in the taxation
assessments; as a result of which Chichikov
had the brilliant idea of buying up such
dead souls; in doing so he didn’t acquire
a real right, but simply the situation that
had been produced by the defectiveness
of the census system (assuming that such
a situation is purchasable in the first place).
Thus, [according to Gerber’s theory]
author's rights would not be rights but
mere situations, just like the ghosts of
Gogol!

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by the mere legal relationship between the
contracting parties. Now, it is a fact – and it
is this which has led to Gerber’s erroneous
conclusions – it is a fact, I say, that the law
accords its protection not just to those interests
which appertain to a specific person, but also
to the interests of the whole of society, to
social interests, which precisely because of
this social character of theirs, because of
this absence of a specific holder, cannot become
rights (1); this is the case, for example, with the
protection of singing-birds, which nightingales
and blackbirds benefit from, not in the sense that
they are somehow invested with a right as a
result of this, but, rather, because the interests of
arboriculture and the aesthetic interest of the
human public demand such a protection. However,
it is not so with the protection of authors (2); here
it is as clear as daylight that only the individual
interests of the authors as living persons enjoy
protection, and, namely, always the interest of
a specific author with regard to a specific work;
and precisely because these are individual interests,
protected by the law, they become rights. A
convincing proof of the individuality of these
interests is also to be found in the fact that
reprinting is prosecuted only upon the author’s
application to the court; the need for such an
application rests not on considerations of having
to treat carefully those whose sense of propriety
has been offended, as is the case, for example,
with the application that, before the recent
supplementary penal law, was required from
victims of rape, nor does it rest either on
considerations of the domestic peace, as is
the case with, say, a burglary: rather, it rests
simply on the fact that it is left to the interested
party to decide whether or not he wishes to
make use of the criminal law protection which
was introduced solely for his benefit (3).
______

      1) Cf. also Wach in Grünhuts Zeitschrift VI: 554.
      2) Otherwise Heine’s witticism might
certainly come true: “Poets in our country are
treated like nightingales who are entitled to
nothing but the air – they are without rights,
indeed they are fair game for everyone”.*
      3) Cf. also Ortloff in Ihering’s Jahr-
Buch V: 278, 286.
_____

*) From Heine’s Lutetia (a series of feuilletons
he sent from Paris to a German newspaper in 1842-
44), in which he also compared the situation of
authors in France with their German counterparts.
The historical term he uses at the end of this passage
– vogelfrei = ‘outlaw’ – is very appropriate, since its
sense is reflected in its etymology (vogel + frei, bird
+ free), implying that everyone is free to hunt down
outlaws, just as they are entitled to shoot (most) birds!
An exact translation into English is not possible.

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      Now, this criminal law protection is not the
only one at his disposal – the author also enjoys
protection by civil law, he is entitled to sue for
damages. It has, though, been argued that
this claim for damages arises inherently,
ex delicto (Gerber, p.277). However, that is
something with which only a wholly formalistic
legal point of view can content itself. The
indemnification is the equivalent of an infringed
right or, to put it more accurately, of an
infringed goods to which one has a right: the
condictio furtiva is an action stemming from
infringed ownership, just as the actio legis
Aquilae is an action founded on an infringed
property right: therein lies precisely the
reipersecutory* character of indemnification,
namely that it does not yield anything new
and is just compensation for something that
has been lost. “As property,” we are told by
an excellent English jurist, Copinger (The Law
of Copyright, 1870), “must precede the
violation of property, so the rights must be
instituted before the remedies for their
violation; and the seeking for the law of
the right of property in the law of procedure
relating to the remedies, is a mistake similar
to supposing that the mark on the ear of an
animal is the cause, instead of the consequence
of property therein.”
      Gerber (p.297) does at least admit that
his doctrine would be jeopardized the very
moment that an action could be brought against
a bona fide infringer of the author’s right – then
the formal delict would not be sufficient. And
yet, as we have seen, so much can be achieved
with purely formalistic jurisprudence – why
shouldn’t it be possible to make shift in this
case with the quaint remedy of fictive contract,
with an actio quasi ex contractu?! This remedy
would explain just as much and just as little
as the actio ex delicto. But Gerber was able to
set his mind at rest because such a claim was
not provided for in the state and federal laws
(at the time he wrote his treatise). This argument
is no longer possible under the current law
on author’s rights [Autorgesetz],
______
*) i.e. where a delictual action may be cumulated
with another action.

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which grants an enrichment action against a guiltless
reprinter too, which even in the case of complete
innocence entitles the right-holder to demand that
the reprinted copies should be transferred to him
in exchange for reimbursement of the impensae
(the production costs)*. Gerber’s argument was
already then only viable because he restricted
himself completely to Germany’s laws on author’s
rights – in other words, as a result of an apportionment
of jurisprudence on the basis of nationality, which
is nowhere more baleful than in the realm of
copyright and patent law, in which field the
French, the English and the Americans have
outstripped us considerably. Long before
Gerber even came to write his treatise, claims
against bona fide infringers were recognized
in France, England and America, and
injunctions were also granted there against
impending infringements. Already in 1847,
Curtis wrote (in Treatise on the Law of
Copyright): “The privilege, which
the law secures to authors, may be equally
violated, whether the work complained of
was written with or without the animus
furandi – To decide the question of piracy
upon the motives of the party charged with
the infringement, would reduce the exclusive
right secured to authors by the law to a
much lower scale of value and efficiency
than the law intends to give to it.” And,
likewise, Blanc (in Traité de la contrefaçon,
p.205, 206) wrote back in 1855: “Since
confiscation is the restitution to the true
owner of an object which had been taken
away from him, it must also be decreed
against the bona fide possessor. – The
defendant’s good faith cannot exempt
him from confiscation or the payment
of indemnification.”
      Finally, when Gerber (p.278) also
observes that an author can settle a
publishing contract even before he has
actually written the manuscript, and
with regard to this asks whether already
here a copyright [Verlagsrecht]
______

*) Cf. the 1870 Copyright Act for the German
Empire, (d_1870 in our digital archive): § 18-21.

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is being alienated to the publisher, then one
can simply reply to this that what we have
here is the alienation of a future good, a
res future (1) (cf. fr.8 de contr. emt.), the
same as when a painter sells a painting which
he has yet to produce, or the wine-grower
who sells the wine the grapes for which have
not yet ripened!
      This, then, is the doctrine which is contrasted
with our theory of rights to immaterial goods,
and which is praised for its simplicity. And
very simple it is indeed – a mere cipher, a
doctrine which collapses wherever one lays
a finger on it! How is such a theory to provide
a firm basis for the juristic construction of
the complicated legal relationships which
are involved in the practice of author’s
rights?! A doctrine which is not even capable
of explaining the transfer or pledging of
the author’s right, its usufruct by third
parties or its division among several
participants [Mitgenossen]. This doctrine is
nothing but the vestigial spectre of that
primitive legal point of view for which
rights could only be conceived in the form
of delictual punishments, which had no
idea as yet of objective right and objective
violations and was simply concerned
with delicts and punishing these. Thus it
is certainly true that amongst all nations
punishment of theft preceded the rei
vindicatio, and this transition can be
observed in all fields of law, as Ihering
(The Guilt Motive in Roman Private Law)
has convincingly demonstrated. It is
therefore understandable why the protection
of authors began with the delict and why
for a long time the legislation regarding
author’s rights was a legislation against
reprinting. Such a legislation is sufficient
______

      1) Cf. Ascoli, Jurisprudence of the Theatre (1871),
p.203. Moreover, a contract of this kind is
only binding when it refers to one or several
individual works – a contract regarding all
future works as such or regarding all future
works of a specific kind defies all reasonable
reckoning and can therefore not be
recognized by the law (cf. C.P.O. §.40, 852,
Eisele, Compensation, p.379).

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for initial needs, but subsequent developments,
accompanied by a host of new practical
problems, call upon us peremptorily to move
on. A scientific theory which nowadays
tries to maintain the delictual point of view
in the realm of author’s rights, is like a
ghost from the past which has strayed
into our times. Already Ihering (ibid.,
nr. 73 – Miscellaneous Works, p.197) drew
attention to this development in the
context of author’s rights. Now, Laband
argues that our theory, like all similar
theories, “leads to rash and artificial fictions,
assumptions, analogies, exceptions and
contradictions” – which is quite a lot to
pack into a single sentence! Well, as far
as the analogies are concerned, it is
surely quite bizarre to reproach a legal
concept [Rechtsinstitut] for displaying
similarities with another – in other sciences
making analogies with already known and
recognized entities serves as a valid means
of verification, and this has been the
case in law too up till now and it will
continue to be so as long as jurisprudence
observes the correct principles: just like the
products of nature, so the products of the
human mind – and the law is one of its most
sublime products – will also display similarities,
for their causes must of necessity be linked
to one another. As far as the other types of
defects are concerned, I am not aware of any
guilt on my part: I know nothing of any
fictions, I do not build on any assumptions,
of contradictions I have not the slightest
inkling, and exceptions will only emerge
from my system where the collision of
several principles and hence of human
circumstances calls for an exception.
      The second front of opposition against
our theory of author’s rights comes from
the proponents of the doctrine of privilege.
These are not scattered, as were the latter,
but form, rather, quite a numerous group in
Germany, France, and England. The nature
of their doctrine can be expressed in two
sentences: firstly, the author’s right is not

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founded on natural right, but is instead an expedient
created by the law; secondly, it is not a right to a
specific immaterial good, as ownership is the
right to a physical good, but is a mere prohibition
right, a veto against third parties, which offers
the holder of it the actual possibility of securing
more profits for himself through the lack of any
competition to his activity, than would be possible
if his activity were exposed to competition from
other persons. The most famous advocate of this
theory is no doubt Macaulay, whose speech in
England’s Parliament on 5 February 1841 led to
the defeat of the Talfourd Bill which sought an
extension of the copyright term (see Macaulay’s Speeches,
translated by Bülau (1854), pp.286-320). Like
many a speech by Macaulay this one too bears
testimony to the warmness of his heart, but at the
same time to a most defective understanding of the
situation being considered. For the author’s right
is presented just like that as a monopoly right,
comparable to the monopolies of the East India
Company and Lord Essex, whereupon there follows
the famous declaration: “It is good that authors
should be remunerated; and the least exceptionable
way of remunerating them is by a monopoly. Yet
monopoly is an evil. For the sake of the good we
must submit to the evil but the evil ought not to
last a day longer than is necessary for the purpose of
securing the good.” (p.294).* If, though, one were to
ask now whether the author’s right really is an
arbitrary monopoly of this kind and not a natural
right of the author, then one would hear Macaulay
reply that to answer that is beyond the reach of his
faculties, that one should not go into metaphysical
enquiries, that property too is a creature of the law
and can be defended only on the ground that it is
beneficial, that, in particular, no mode of succession
whatsoever is based on natural right,
_______

*) For the original text of Macaulay’s speech, see:
uk_1841c in our digital archive: Parliamentary Debates
on the Copyright Bill (5 Feb. 1841), p.2f.

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that, on the contrary, any such mode must
be explicitly determined by the will of
the legislature (pp.288-90). On the same
grounds someone else could come and
say: so ownership is therefore just a legal
monopoly which reserves to an individual,
with the exclusion of everyone else, the
benefit of a physical thing: it follows, then,
that, like monopolies in general, ownership
must be restricted to as short a period as
possible – indeed, that it should perhaps
even be revoked in the next generation. It
is easy to see that this would take us directly
to Proudhon’s notorious declaration:
“Property is theft” (1) – in other words, that
this is a path leading to all the sophisms
invoked by the fanciful opponents of
property (2).
      The subsequent champions of the
privilege theory have proceeded somewhat
differently – I shall just name amongst
many others Boccardo (On Literary Property
[1861], p.25f.),
_______

      1) Just look at the audacity with which
Proudhon (in What is Property? , transl. by
Meyer, 1844, p.74f.) avails himself of such
arguments, in order to reason away property.
      2) Macaulay’s further arguments – namely,
that the benefit of extending the copyright term
would be not the author’s but the publisher’s
instead, and that author’s rights would not have
saved Milton’s granddaughter from destitution,
since Milton had transferred the copyright for all
times to his publisher Tonson in exchange for a
pittance – these arguments, I say, are based
on a most defective assessment of the situation.
Only once the author’s right is legally protected
and properly regulated, can authors enter into
profitable contracts with publishers and the
latter offer them lucrative conditions – most
importantly, only then will all the editions
cease to be sold for a single lump sum that
is, moreover, estimated on a very uncertain
basis: instead, each edition will be sold for
a specific sum, so that the author’s right, for
as long as it exists, will yield a constant
revenue. This is even more evident in the
case of dramatic and musical works, where
each performance results in the author
receiving a royalty [Tantième]. When, finally,
Macaulay expresses his apprehension that
good works might be suppressed by the
heirs of authors for reasons of scruple (p.301f.),
well, this is on the whole a chimerical
supposition, and if any such danger should
exist, it can be neutralized by the legislature,
as has indeed happened in English law
and that of other countries (see p.171 above).
      3) Cf. also Alessandro Manzoni’s
Letters to Prof. Girolamo Boccardo, p.10f.

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Clément, On Authors’ Rights to their Works
(1867), p.12f., Morillot, The Protection Granted
to Works of Art in the German Empire (1878),*
p.96f., Lebret, Literary Property (1878),** p.25f.,
Worms, A Study of Literary Property (1878),***
vol.1, p.15f. For they draw a very strict separating
line between property and author’s rights,
and insist with unabated zeal that property is
a right to physical goods, and that there can
therefore be no property in non-physical goods,
since that would be a contradictio in adjecto (1).
It is certainly not our intention to deny such
a commonplace truth as the fact that property
is a right to physical goods – what we would
like to point out, though, is that this whole
deduction does not prove anything at all, since
immaterial rights, whilst not being a property
as such, are nevertheless absolute rights to
immaterial goods. Now, it would be most
absurd to argue that immaterial goods
cannot be an object of exclusive exploitation
and that they cannot therefore be the object
of a right which envisages precisely this
exclusive exploitation. All goods which,
according to their cultural significance, are
not unconditionally subject to service of
the community can be the object of an
exclusive right of exploitation, or, as it
is normally called, albeit using much
paler and less colourful terms, an object
of legal control. Whether the goods are
physical or non-physical is, as one can
easily see, decisive for the way in which
the law is put into practice, but not so
for the first premises of the legal
principles, since the law
______

      1) The construction whereby the author
enters into an innominate contract with the
public, and the public in exchange for this
protects him with the award of a temporary
monopoly – a construction which is to be
found in Boccardo, p.27 and Morillot,* p.127-
can be laid to rest. For a refutation of Lebret
and Morillot see my article in
Kritische Vierteljahrsschrift N. F. II: 189f.**
and p.510f.
______

*) André Morillot, De la protection accordée aux oeuvres
d'art aux photographies, aux dessins et modèles industriels
et aux brevets d'invention dans l'Empire d'Allemagne (Paris,
Berlin: Cotillon, Puttkammer & Mühlbrecht , 1878). Available online at:
http://dlib-pr.mpier.mpg.de/m/kleioc/0010/exec/wrapbooks/%22175261%22

**) Georges-Adolphe Lebret, La propriété littéraire et artistique:
Du droit des auteurs et les artistes sur leurs oeuvres (Paris, imprimerie
générale, A. Lahure éditeur: 1878). Cf. Kohler’s review in Kritische
Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 21
(1879): 189. Available online at:
http://dlib-zs.mpier.mpg.de/mj/kleioc/0010/exec/showtoc/%222085047_21%2B1879%22

***) Fernand Worms, Étude sur la propriété littéraire (Paris: Alphonse
Lemerre éditeur, 1878). Cf. Kohler’s review, ibid. 200.

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is concerned not with substances but with
goods - it is the quality of being a good and
this alone which is decisive for the objectivity
of the law, which is also the reason why Girtanner
(in this Almanac, III: 74)* quite rightly calls
the determination of a thing the essential element
in its legal status. It is reason why there are
physical things which are not susceptible of
appropriation because they lack the character of
goods – for example, the surface of the moon, or
the centre of the Earth – or because according to
their function in human civilization [Kulturaufgabe]
they must necessarily serve the whole community
- examples of this are the sea and the trade
routes down rivers. And vice versa there are
immaterial goods which are, for a while at
least, susceptible of appropriation by an
individual – namely, in such a way that they
are not thereby divested of their cultural
functions, and these goods are therefore
capable of being the object of an exclusive
right which controls them, just as any goods
as such can constitute the object of an
exclusive right.
      Now, that there are immaterial economic
goods is something that nowadays can be
accepted as a firmly established principle of political
economy – cf. J. B. Say, Political Economy,
vol.1, ch.13; Roscher, Political Economy,
§. 3 (11th ed., p.5f.); Hermann, Poli-
tical Economical Investigations, p.104f.,
p.121; Wagner, Textbook of Political
Economy, vol.1, p.22f.; Umpfenbach,
Capital in its Cultural Significance (1879),
pp.26, 50, 55. In particular, the objection
recently made to this by Schäffle (Structure
and Life of the Body Social, vol.3, p.259)
cannot be of any consequence, since
Schäffle presupposes an altogether quite
different concept of what a good is (vol.3,
pp.235, 258), in the sense that he regards goods
as the material resources of the human
economy, but not as the means of satisfying
human needs. However, only the latter
concept can serve as a premise for the law.
      As for the question as to the susceptibility
to appropriation of
_______

*) Wilhelm Girtanner, “Die Rechtsstellung der Sache und
der Eigenthumsbegriff mit besonderer Rücksicht auf
Sachgesammtheiten (universitas rerum), Accession u.
Miteigenthum”, in Jahrbücher für die Dogmatik des heutigen
römischen und deutschen Privatrechts 3 (1859): 58.
Available online at:
http://dlib-zs.mpier.mpg.de/mj/kleioc/0010/exec/showtoc/%222084719_03%2b1859%22

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immaterial goods, that is by no means a completely
novel question: it already played a part in the
controversy as to whether there are rights to rights –
a controversy which was, admittedly, waged mostly
in the specialist field of the law of securities
on property [Pfandrecht], but whose
significance goes far beyond the boundaries of this
specialized field. The lien on property has been
construed by some to be a right to a right – indeed,
this construction was once taken to an extreme by
Bremer, which provoked in its turn a vigorous
refutation by Exner and some stimulating observations
by Hartmann (vol.17 of this almanac, p.86f.) (1). If
it were true that there are rights to rights, then the
question as to whether immaterial goods can be
appropriated, would no longer be in need of an
answer, since no one will deny the immaterial
nature of rights; and the fact that this proposition
has been accepted just like that shows how little
importance science attaches to the materiality of
legal goods. And yet this opinion is incorrect: it
is not the protected interest of another which in its
turn can be a legal good – something that would
lead to veritable ‘staggered’ rights – but only the
economic good which is comprehended by this
interest. Hartmann for one would not have made
this mistake, if he hadn’t allowed himself to be
deluded by the notion that the will too can be
controlled by the will. However, a right is not the
same as the will: it is, rather, a protected content
of usufruct, a protected interest, in which, certainly,
the will can move around with greater or lesser
ease. A right is not will, it is and exists for the will.
But we have no need of this new acquisition, of
these rights to rights, in order to find support for our
argument about the susceptibility to appropriation
of immaterial economic goods. Life as such has
never doubted this
______

      1) Cf. also Hanausek, Theory of
Figurative Usufruct (1879), p.41f., where
readers are referred to further works on
the subject; likewise Bürkel, Contributions
to the Theory of Usufruct, p.20f. An even
more recent work is Stammler, Usufruct
in Claims, p.22f, p.89f.

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susceptibility to appropriation: writings of the
most diverse kinds have been bought and
sold long before people started thinking
about protection for immaterial things.
Already in classical antiquity authors would
sell their works, in some cases very dearly,
but in others also very cheaply, just as
is the practice nowadays, and Roman
dramatic authors, too, were paid for their
plays – as will be demonstrated further on
(Appendix II). Similarly, authors in the
Middle Ages, in particular dramatic authors
would sell their plays – thus it was in
England (see Coryton, Stageright (1873),*
Appendix, p.viiif.); thus it was in France
too, where Molière’s widow, as we
know from a still extant receipt, was
paid 2,200 livres for Le Festin de Pierre
by a company of actors (see Beaume &
Huard, Dialogue of the Dead on Literary
Property (1862), p.11; Caresme, On
Literary Property in History and
according to the Law (1863), p.21) (1).
And, to cite another example by way
of analogy, what sums has Krupp, the
‘King of Cannons’, not been offered
to persuade him to reveal the secret
of the composition [of his steel]?! Yet, as
far as I know, Krupp does not hold any
patent; his invention does not enjoy the
protection of patent law, it is effectively
placed under the protection of secrecy
- - which is clear proof that here an
appropriable economic good exists
before the law; that it is not, as many
have tried to argue, simply an artificial
creation of the law. True, if the usufruct
is not safeguarded by an effective means
of protection or by the law, then the
best goods are
______

      1) For more details on the remuneration
of classical authors by the French theatres,
see Lacan & Paulmier, Treatise on the Legis-
lation and Jurisprudence of the Theatres (1853),**
vol.2, pp.141 & 298. For Les Précieuses ridicules
Molière received 1,000 livres, for Le Cocu
imaginaire 1,5000 livres; Corneille received
2,000 livres for his Attila. Later, towards
the end of the 17th century the royalty system
emerged, which since then has remained in
place in France’s theatres and which has
also established itself here in Germany.
_______

*) John Coryton, Stageright: a compendium of the law
relating to dramatic authors, musical composers, and
lecturers as regards the public representation of their
works (London: Nutt, 1873).

**) Adolphe Lacan & Charles Paulmier, Traité de la législation
et de la jurisprudence des théatres précédé d'une introduction
et contenant l'analyse raisonnée des droits et obligations des
directeurs de théâtres vis-à-vis de l'administration, des auteurs,
des auteurs et du public; avec un appendice sur la propriété des
ouvrages dramatiques et la collection des lois, décrets, avis du
conseil d'état, ordonnances royales, arrêtés et ordonnances de
police concernant tous les theatres (Paris: Durand, 1853).

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rendered worthless, but this is also the case with gold
that is dug up in a gold-mine if no one can be certain of
keeping what is his (Ihering, Purpose in Law, p.373) (1).
      However, if this is so, then there is no doubt
whatsoever that such goods can, at least temporarily, be
protected for their usufruct by an individual, and that
they can therefore become objects of protected individual
economy [Einzelwirtschaft], objects of property, as we
are assured by the example of the most flourishing civilized
nations.
      It should scarcely have been possible to misunderstand
the crux of this matter for so long, had it not been that
people let themselves be deluded by analogies with legal
concepts whose construction back then had been founded on
a mistake – I mean by analogies with trade privileges and
monopoly rights, under which categories our immaterial rights
tended to be classed. Cf., for example, Schmid, Archiv für
zivilrechtliche Praxis, XLIV: 1f., 181f., 186f.; Dernburg, Prussian
Private Law, vol.2, p.716f.; Mandry, Archiv für zivilrechtliche Praxis
LX: 223f. For this analogy would not have been so baleful, if
the construction of these analogous rights had not been so
thoroughly mistaken.
      The nature of these privileges and prerogatives used to
be considered to lie solely in the prohibition of rivalling
commercial activity by third parties, in the exclusion of
non-privileged persons from any similar enterprise – quite
wrongly, though, for it is the same mistake as is made by
that self-satisfied legal point of view which, in the case
of property, takes into account only the protection against
infringements by third parties, but overlooks completely the
essential point, that which, so to speak, is the core hidden
by the shell, namely the private good [Eigengut] and its
private usufruct.
______

      1) It is insofar correct of Schloßmann (Contract, p.259) to
compare legal and effective protection, since both increase
the economic significance of the protected good. But behind
this similarity one should not overlook, as Schloßmann does,
the completely different legal character which a good acquires
as soon as it enjoys legal protection.

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Indeed, the monopoly rights of all kinds are prohibition
rights to as great and as less an extent as property is:
both are prohibition rights insofar as they are
protected and consolidated by prohibitive norms, but
they are not so in the sense that they are absorbed
entirely in these prohibitive norms. Rather, we
are dealing here in all cases with goods in whose
usufruct the licensee or privilege-holder is being
protected and wishes to be protected. Let us take
any one of the monopoly rights, e.g. the salt
monopoly, the tobacco monopoly – it will be
seen, then, that they too have a particular good for
the protection of whose usufruct these prohibitive
laws are designed: this good is namely the profit
yielded by running a business within a specific
commercial sphere – this profit, this economic
source of income, this non-physical good is left
to the licensee to enjoy (cf. Hermann, Political
Scientific Invest. , p.121 and cf. also the excellent
opinion formulated by Roscher in his Perspectives of
Political Economy, vol.2, p.297f.): the exercise of this
source of income, the running of this business
is therefore the exercise of a right just as much as
the use of a physical thing that is mine is the exercise
of my property. For it is not the case that, say, the
running of a business were something legally
irrelevant and that only when interfered upon by third
parties does it become something that is legally
significant. That is also the reason why frequently
the privilege-holder is obliged to carry out his trade
in a specific, prescribed manner: here, alongside the
right to exploit a good, we also find the obligation of
how this exploitation is carried out, because the
interests of third parties may also be affected – just
as in the case of ownership of woodland right and
obligation go together. And this also serves to explain
further why these privileges, or, rather, the goods that
are contained in them, can be objects of alienation,
pledging – indeed, objects of commerce as such.
      Such monopolies therefore have this in
common with the immaterial rights, with the
author’s right, with the inventor’s right – namely

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that they are rights to non-physical goods –
but they do differ essentially from them, as
they differ from property, because of the
fact that with monopolies the good to which
the individual privilege-holder is entitled
is not the result of a creative activity of that
privilege-holder, which is why the bestowal
of this good on the latter as an exclusive
privilege is based not on any natural right
on his part, but, rather, on a free determination
by the law, which thereby pursues some
specific aim or other – a determination
which removes the benefit of a commercial
enterprise, that would otherwise belong
indiscriminately to all and everyone, from
the general utilization sphere and entrusts
it to an individual – just as when, in the
sphere of real property, the law marks out the
water of a river, which may normally be
used by all the inhabitants of the area, for
utilization by one individual, or when it
separates the game from an area of land
and declares it to be a hunting preserve
[Regal]. Now, this difference
is certainly crucial. A person who writes
a new work or makes a new invention
enriches the wealth of a nation by a sum
equivalent to the economic value of that
good, and the exclusive right to which he
is entitled refers to that newly created
good, not to a good which had previously
belonged to the community and happened
to have been taken away from the latter
by such appropriation. Whereas, therefore,
any monopoly whatsoever just gives to
the individual what it takes away from
the community, so that the economic good
contained by it does not entail any
enrichment of the nation’s wealth (1),
the author in his author’s (or inventor’s)
right enjoys the result of his new creation
and thereby of a good which was previously
not contained in the nation’s wealth; what is
granted to him is not something that has to
be taken away from the community; as
has already been admirably demonstrated by
______

      1) At any rate not a direct enrichment – it is,
though, true that such an arrangement can foster
industry and thereby raise the productive power
of a nation – cf. List, National System of Political
Economy (in his Collected Works [1851]), p.175f.

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Hermann, Political Economic Investigations (2nd
ed. 1874), p.122 (1), cf. also Roscher, Perspectives
of National Economy (1878), vol.1, p.18.
      May it not be taken amiss if we include here
an observation on the different types of rights with
which a person can be invested, for this observation
is necessary in order to define the character of the
immaterial rights. A right can be of a dual kind:
either it draws the property asset [Vermögensgut]
entirely into the sphere of the person invested with
that right and thereby removes it from everyone
else’s sphere. Or it is just indirect, in the sense that
it simply generates a tension in an alien personal and
property sphere by virtue of which a good there must
first be handed over for the privilege-holder’s usufruct.
The latter is what we refer to as an obligatory right –
in the realm of law it is the equivalent of a force which
acts at a distance in the realm of nature (2). There is
______

      1) “Securing to a person the exclusivity of
selling his own products [Leistungen], which without
him would not exist, to which nobody else could
possibly have any right, since without him no one
would even have known about them -- this protection
in no way diminishes the benefits enjoyed by
anyone else in commerce. What is voluntarily paid
for these products, is just the equivalent of the new
‘usefulness’ which the author casts into the common
stock of goods. Where, therefore, author’s rights
or trademark protection yield profit and become
assets, this takes place as an independent component
and contribution to the nation’s economy.” Hermann,
Political Economic Investigations (2nd ed.), p.122.
      2) The arguments to the contrary that Schloßman
has advanced (Contract, p.257f.) are entirely
fallacious. Schloßmann completely fails to see
that alongside the life of nature there is also a
spiritual life with its own organic laws, which
at first manifest themselves but faintly in
people’s sense of justice, but which are then
brought to clear, conscious recognition by
science; just as in the realm of morality man’s
conscience contains an unconscious appeal
to the moral laws, which it is the duty of
moral teaching to bring to his conscious
knowledge – cf. p.144 above and Köstlin’s
Theological Studies and Critiques (1879),
pp.608f., 620f; whereby this does not, of
course, exclude the fact that the development
of the law, like that of morality, is in many
respects influenced by the specific culture and
atmosphere in which individuals live, and
that it is determined by the legal or moral maxims

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no need to demonstrate that the author’s right,
like all immaterial rights, belongs to the first
category of rights, that it represents a right to
the property asset [Vermögensgut] as such, rather
than a right to a good which is originally in
someone else’s property and which must first
be handed over. This was already argued by
Kramer, Rights of Writers and Publishers
(1827),* p.49. It is an absolute right, not a
merely relative one.
      However, we must still strictly distinguish
the immaterial rights from another category
of absolute rights, namely from the individual
rights, that is a person’s rights to his or her
bodily and spiritual goods. Now, these too are
direct commodities [Genußgüter], but because
of their organic interrelation they are inseparably
bound to the person in whom they are vested and
are not susceptible of a direct alienation, at least
not from the point of view of the advanced stage
which our civilization has reached. Only indirectly,
on the strength of obligatory constraint can such
individual goods be submitted to utilization by
a third party, insofar as the latter thereby obtains
a claim to the conversion of human working power
to his own profit: the employment or service
contract – cf. Thornton, On Labour: Its Rightful
Claims and Wrongful Dues, translated by
Schramm (1870), p.94 and the translator’s note
on p.95f.; Lujo Brentano, Survey of the English
Trade Unions (1872), p.11f. (1): a worker can
only be hired, he cannot be bought (Schramm,
ibid. ); in this respect the individual goods differ
substantially from the other types. Moreover,
even this indirect obligatory right can only
come into effect with certain restrictions and
provisos: no one can legally
_______

imposed by the competent legal or moral
authority. The mighty force of the law and
that of morality, too, are truly real spiritual
forces – they are the objects of clear-sighted
scientific inquiry, not just the objects of
emotive mysticism!
      1) Cf. also the same author’s The Working
Condition (1872), p.182f.
_______

*) Wilhelm August Kramer, Die Rechte der
Schriftsteller und Verleger (Heidelberg: C.F. Winter,
1827 ). See d_1827b in our digital archive.

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bind himself for ever, for his whole lifetime;
since in such a case the obligatory constraint
would, in terms of its result, become the same
as a direct bondage – in the same way that
serfdom originated in Russia from the very
moment that the peasants’ right to quit their
service on St George’s Day was repealed. To
what extent such a hiring out [Ausantwortung]
of one’s personal capacity for work is permitted,
is not an easy question to answer, although
it is true that in Germany it has not been
dealt with as thoroughly as in France and
England, and although my thoughts on
this matter in the Annals of Baden (1875),
p.339f. (1), have not received the attention
which their eminently practical content
would deserve.
      That the products of authors, the works
of the intellect do not belong to these
individual goods, is beyond all doubt,
since they can be passed from hand to
hand: they constitute an object of
continuous exchange. But we shall
consider this in a separate section.
      Finally, we should mention the
interesting attack against the reality
and susceptibility to appropriation of
the author’s intellectual property –
interesting because of the audacity
of the sophisms used and the ingenuous
impudence of its erroneous conclusions
- I am referring to the attack by
Carey (Letters on Literary Property,
translated and published by Dühring,
1866). The latter asserts first of all
that authors have no thoughts of their
own, that they just use the thoughts
of others – a compliment for which
we are most grateful to the publisher
Carey. For all this is really saying, is
that authors are generally not the
originators of material discoveries,
that instead they gather these from
explorers and natural scientists: and yet
there is a difference between the
material discovery and the intellectual
_______

      1) Cf. also Neuner, The Nature
and Types of Private Legal Relationships,
p.19f.; Lujo Brentano, Survey etc.,p.20f.

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combining [of the phenomena that
have been discovered or described] –
without this combining all discoveries
would be fruitless. Now Carey is able to
appreciate a Humboldt or a Cuvier, but
not a Byron, Dickens, or George Sand:
“Byron,” he says, “had 2,000 guineas
for a volume of Childe Harold, and yet a
single year should have more than sufficed
for the production of any one of these
poems.” What Carey in this journeyman’s
calculation fails to recognize is that the
soaring flight of the spirit of this greatest
of modern poets outweighs a hundred years
of laborious scholarly activity. What can
any scientific discovery achieve next to
one canto of Byron’s Don Juan or one
movement from Beethoven’s Ninth
Symphony! Thus, of course Walter Scott
has not made any contribution to human
knowledge, nor has Dickens for that matter:
he just gathered and reproduced
observations. Similarly, one is bound
to say in this vein, Phidias just hewed
his observations of the naked human
body into marble, and Raphael and
Murillo just transmitted to the brush
the images which reality had proffered
to their eyes. So naïve a view of art,
the highest and most sacred creation
of the human spirit, can only be
suffered as a literary curiosity or as
a psychological enigma.
      A writer, Carey continues, is like
a stranger who walks into the common
garden of mankind, picks a few flowers
and arranges them into a bouquet. The
arrangement is his, the tasteful grouping
of the flowers is his, and in exchange
for that he can rightly demand that he
should be allowed to hold on to the bouquet
for a while, - but he may not keep it in
his possession, since after all it is made
up of someone else’s flowers, of
components which do not originally
belong to the author. A remarkable
sophism: the flowers are the thoughts
which the writer uses, the arrangement
is the book – can the writer

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appropriate the thoughts for this arrangement?
Unfortunately, there is just the minor
difference in this case that the writer takes
away no one’s thoughts and prevents no one
from using the same thoughts to write a new
book. What the writer claims as his, is his
artistic product, his book – the old ideas
are still there to be used by anyone as
before. When Rottmann painted his Greek
landscapes, it didn’t occur to him to impound
the soil and sky of Greece for the benefit
of his brush; when Dickens portrayed the
characters of his Oliver Twist from life,
he had no intention of monopolizing for himself
the scoundrels from the notorious alleyways of
London whom he had gathered together for his
bouquet. It is clear that the comparison is lamer
than would be excusable for such a comparison (1).
      The correct notion which shines through
the sophism is that everyone, even if one happened
to have the most gifted and unique personality,
is influenced by the surrounding cultural sphere,
and that external impulses often set the course
of an intellectual creation, in some writers to a
greater extent, in others to a lesser (2). But to
deny on these grounds the uniqueness of the
creation, sounds as strange as it would be to
deny it because the author had all the while
enjoyed the air and light, because his blood
_______

      1) As an ingenious Italian, Ascoli rightly
observes (in Jurisprudence of the Theatre
(1871),* pp.174, 175), with these arguments it
would be even easier to deny the existence of
property, since the objects of property are all
just combinations of already existing chemical
elements.
      2) This and no more is expressed in the
famous passage from Pascal, Pensées, II a. 17,
pensée 80: “Certain authors, when speaking of
their works, say ‘my book’, ‘my commentary’,
‘my history’. They remind one of townsfolk
who have a house of their own and constantly
have ‘at my place’ on their lips. They would
do better to say ‘our book’, ‘our commentary’,
‘our history’, given that in these there is
normally more that comes from other people
than from themselves.” Cf. also Beaume &
Huard, Dialogue of the Dead, p.14.
_______

*) Prospero Ascoli, Della giurisprudenza teatrale
(Florence: Pellas, 1871).

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had been animated by oxygen that is shared by
all and his eye had feasted on the greenery and
trees that are there for everyone; or because
even further back he had drawn nourishment
from his wet-nurse, or, why not, because he
had been conceived and brought to this world
by his parents (1). Everyone comes forth from
the common womb of mankind and finds himself
in constant contact with his surroundings
through myriads of sensory threads. But this
does not refute the existence of individuality,
and it is on this separate individuality that
all private right and private enterprise are
based (2). Cf. also Lotze, Microcosm, vol.3,
p.65.
      Accordingly, our immaterial goods
do actually exist as real economic goods which
are susceptible of legal transactions, and therefore
wherever legal practice confronts us with such
phenomena, we must recognize them in this light
– what we mustn’t do is to separate them, with
the dissecting-knife of a false theory, from their
natural basis, namely from their quality of legal
goods.
      Now, as far as the objection is concerned,
that the holder of such a right is not entitled to
the full jus utendi et abutendi [the right to use
and abuse] – cf., e.g., Clément, p.18 - such counter-
arguments are, as we have shown, of very little
consequence. They are only possible from the point
of view of a one-sided, formalistic jurisprudence,
which fails to recognize that obligations are also
inherent in rights, and that all rights which impinge
upon vital national interests, be it property, be it
immaterial rights, must necessarily be subject
to social normalization.
      And if by way of objection it is still
emphasized (e.g. by Laband), that the laws
_________

      1) Cf. also Le Barrois d’Orgeval, Literary
Property in France and Abroad (1868),* p.89f., Jürgen
Bona Meyer in Zeitschrift für Völkerpsychologie
XI (1879): 271 and the passage from Goethe quoted
there.
      2) Other Americans have held much sounder views
about the author’s right; cf., for example, Plea for Authors
and the Rights of Literary Property (1838), anonymous, p.8f.
_______

*) Robert Le Barrois d'Orgeval, La propriété littéraire en
France et l'étranger, son histoire, sa législation: Suivie des
conventions internationales, Conclues jusqu'à ce jour avec
les principaux États de l'Europe (Paris: Dentu, 1868)

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normally grant protection just to native authors, then
one could equally well say about property, that in the
Middle Ages and even to this day in some states
Jews were not allowed to acquire any landed property (1),
that the acquisition of landed property by foreigners
was either wholly out of the question or it was restricted
by rights of retractive purchase and so on; that well into
this century there still existed a droit d’aubaine*, that
a right of privateering and capture of booty at sea still
exists to this day to a significant extent – cf. Bulmerincq
in Revue de droit international XI: 349. With regard to
the rights of authors, we are at present still deep in the
Middle Ages, we are still completely in a state of
gradual becoming; but here too the day will dawn when
the foreigner’s profit will be protected just as well
as that of a state’s own citizens. “In an age,” said
Leone Levi at the International Law Congress in
London, “when thoughts and ideas are communicated
with inexampled rapidity, in an age, when a constant
Interchange is taking place of the products of learning,
art and industry between all countries, [it] scarcely
befits any civilized state to say that the rights of an
author should be limited to the narrow boundaries
of his own nationality” (London City Press, 13 August
1879, p.2). Cf. also Pütter, Reprinting of Books (1774),**
p.85; Leverson, Copyright and Patents, or Property in
Thoughts (London 1854), p.16f.; Ascoli, Jurisprudence
of Theatres (1871), p.179. French law from times
immemorial has never demanded that the author should
be a native Frenchman – Renault, On Literary and Artistic
Property (Paris
______

      1) Cf. for Austria, Randa, Property (3rd ed. 1879), p.300,
nr 8; for the situation in medieval times, Stobbe, The Jews in
Germany, pp.176, 178, 276f.; Rosenthal, On the History of
Property in the City of Würzburg, pp.25, 26.
______

*) A regalian right, which was not formally abolished
until 1819, whereby foreigners resident in France could
neither inherit nor bequeath property. It devolved to
the Crown.
**) Johann Stephan Pütter, Der Büchernachdruck nach ächten
Grundsätzen des Rechts (Göttingen: Vandenhoek’s widow, 1774).
See d_1774 in our digital archive.

Chapter 1 Page 83


80

1879), p.3f., and the well-known French Decree of 28
March 1852* grants copyright for foreign works even
when the works have first appeared abroad, and
without any consideration of reciprocity: Counterfeiting,
on French territory, of works published abroad and
mentioned in art. 425 of the Criminal Code constitutes
an offence (Renault, p.13; Caresme, On Literary
Property , p.29). German patent law, too, no longer
makes any distinction between natives and foreigners,
and if German copyright law continues to do so, then
it is something which can only be lamented. The most
recent copyright legislation, that of Spain, grants, in
articles 13 and 15 (1) foreign authors legal protection
on the condition of reciprocity. The Paris International
Congress [of 1878] for Literary Property issued the
following declaration: “The artists of all countries
will be put on a par with our native artists. They will
enjoy the benefit of our national laws for the
reproduction, staging and performance of their
works without any condition of legal or diplomatic
reciprocity” (2). Similarly, the Congress for
Industrial Property: “Foreigners should be put
on a par with natives” (3). It is to such declarations
that the future belongs. Of course, a certain right
of retaliation could still be reserved for the highest
government authority of a country, on the basis,
say, of §. 4 of the German bankruptcy regulations.
      And, finally, as for the various formal
prerequisites
_______

      1) Cf. this law in the Bulletin de l’Association
littéraire internationale 1879, nr 2, p.9
      2) A similar declaration was already made at
the 1858 Congress in Brussels – Courrier de la
Librairie III (1858): 9.
      3) It is common knowledge that of all countries it
has been the United States which has kept back the
most from international copyright legislation. But it is
also known that some influential voices have made
themselves heard there in favour of such legislation
- cf., for example, the Memorial of Citizens of the
United States for an International Copyright Law,
16 December 1843, to the House of Representatives.
_______

*) Rapport et Décret sur la Contrefaçon d'Ouvrages étrangers.
See f_1852 in our digital archive.

Chapter 1 Page 84


81

which some immaterial rights entail – announcement,
registration, deposit – well, these are just the identical
counterpart of what is standard practice in the realm of
real property legislation, from mortgage regulations to
mining law. Wherever the interests of third parties
are involved, the law can and should intervene in a
regulating and organizing capacity, to secure and
consolidate conditions, to facilitate trade and traffic.
      Now, the theory of privileges also has recourse
to the notion that property is founded on natural law,
whereas the author’s right owes its existence to the
mere connivance of the law. I have already devoted
a lengthy refutation to this notion in my review of
Morillot in the Kritische Vierteljahrschrift für
Gesetzgebung und Rechtswissenschaft N.F. II: 516f.
Sanctioning by positive legislation or by common
law [Gewohnheitsrecht] is, as we have already
shown, required by every sort of right or property,
such as the author’s right in our case, if it is to
enjoy legal protection; in this respect the quarrel is
a superfluous one – cf. also Trendelenburg, Natural
Right, p.167; Leist, On the Nature of Property, pp.64,
272; Samter, Societal and Private Property, p.54f.;
Wrangell, The Principles of Literary Property,* p.67f.
All the same, this quarrel does have more profound
implications: for the point is to decide whether the
author’s right, like property, exists potentially as
a postulate to the legislation, as a commandment of
reason and, since the commandments of reason
manifest themselves as instincts to start with, as a
claim of our sense of justice. For there are, on the
contrary, also rights which are not commanded by
reason as such, which do not have their roots in the
principles of justice that dominate the legislation,
whose target alone is marked out by justice, and
the way in which the former is to be attained is
left open. When the State introduces a tobacco
monopoly, or in the interests of industry forbids
the importation of specific merchandises,
________

*) Constantin Franz Reinhold Baron von Wrangell,
Die Prinzipien des literarischen Eigenthums mit specieller
Rücksicht auf dessen juristische Form, öconomische, sociale
und internationale Bedeutung sowie auf die natürliche
Begrenzung seines Inhaltes und seiner Ausdehnung
(Dorpat [Tartu]: MA thesis, 1866). Available online at:
http://dspace.utlib.ee/dspace/handle/10062/5776.

Chapter 1 Page 85


82

the envisaged taxation revenue or the envisaged
industrial protection may be called for by the
State’s function, and therefore by the aspirations
of the law [die Rechtsidee] – the means, however,
are not decreed by the aspirations of the law; rather,
they are allowed by the latter and are selected
from amongst a number of different possible means
by the State authorities. That is why no one
considers the tobacco trade or the importation
of merchandises to be something illegal, as long
as a tobacco monopoly or a prohibition on
imports have not been decreed by the State:
only then do these actions cease to be legal
and honest, only as a result of that do they
become branded with a stigma, for before
that they are as pure as doves. For this reason
the State will employ all its energy to
implement in praxi the regulations which
it has decreed once and for all. However,
what will always remain unattainable, is that
the people should feel the same sense of
the illegality of an infringement, that their
indignation about the violation of these
regulations should be as strong as when
a violation of property, an act of theft or
malversation, are committed. Jurists have
wondered about the reason for this phenomenon,
and a number of motives have been suggested –
cf. Merkel, Criminal Investigations (1867),
vol.2, pp.108f., 112, and the scholars quoted
there; the true reason, however, is that these
created legal norms [Rechtsschöpfungen] are
simply of an artificial nature, that they are not
rooted as such in the people’s sense of justice,
in its convictions, that, like all artificial
creations in general, they lack that cogency
of a force of nature which is displayed by, if
I may call them so, instinctive [naturwüchsig] rights
that are founded on spontaneous natural
initiative.

[...]

Chapter 1 Page 355


INDEX.
____


Abridgement, 244
accretion, 250
actio injuriarum, 130
adaptation, 214, 220
address book, 161, 180
annotations (to a classical work), 181
Anspruch = claims, 303
anthology, 245
Antrag = filing of a criminal suit, 59, 312
Arbeit = labour, basis of property, 98
            in Rome, 103, 329
Arbeitsteilung = division of labour, 109
Arbeitsvertrag = labour contract, 74, 107
architecture, 226
arrangement, 174, 211
Aufführungsrecht = performance right, 233
            where joint rights are shared, 268
Ausländer = foreigners, 79
Außenwelt = external world, influence on the author, 77
author's right, object, 39f., 159f., 189f., 197, 199
author’s work, quality, 159f.

Ballet, 187
Bauplan = plan of building, 193
Beethoven, 222
beneficial relationship, 290
Besitz = property, 299, 302
Billigkeit = equity, justness, 18
bonum vacans = ownerless property, 46
Börsenbericht = stock-list, 163
Briefe = letters, 143, 178
book trade, in Rome, 320, in Greece, 330

[2nd column:]

Calderón, his literary borrowings, 218
            printing of his plays, 341
Cervantes, printing of his plays, 342
Chopin, 222
chronological table, 182
Citate = quotations, 244
collaboration, 92, 204, 266
collegia = associations joined by law, in Rome, 330
concert, 241
concurrence déloyale = dishonest competition, 131
confiscation, 308
conjectures, 164
co-operation, 92, 204, 266
copy, 231

Dereliction, 259
dolus, strafrechtlicher = fraud, with criminal intent, 120
dramatisation, 215
dramatico-musical, 236, 247
Drehorgel = barrel-organ, 242

Eisenbahnfahrtenbuch = railway timetable, 162
Entdeckung = discovery, 114
Entschädigung = indemnification, 309
Erbschaftsantritt = taking possession of inheritance, 10, 345
edicts, 192
Erwerb des Autors = author’s income, 91
exceptio doli, 119
execution (seizure of debtor’s) manuscripts, paintings etc., 137, 349
            applied to the author’s right, 283
expropriation, 50

Fibel = primer, 180
flora, 182
form of the author’s work, 166


Chapter 1 Page 356


351

Freilassung = release, 251, 265
Fruchtrestitution = restitution of profit, 307

Gebetbuch = prayer book, 180
Gerichtskalender = law-court schedule, 162
Gesangbuch = songbook, 180
Gesetze = laws, 192
Gesetzgebungspolitik = legislative policy, 53
Gestaltung, künstlerische = artistic design, 171, 214
Geteiltes Autor- und Verlagsrecht = divided author’s and publication right, 273
Gewohnheitsrecht = common law
goods, immaterial, 67
Gypsabgüsse = plaster casts, 187

Handelskalender = business calendar, 161
Hermodorus, 326
Hirtenbrief = pastoral letter, 193

Illustration, 205, 226
individualism of ownership, 55, 110
individuality of a title, 135
individual (= personal) right, 74, 123, 147
injunction, 305
Inserat = advertisement in newspaper, 165
instinct in the development of culture, 99
instruction, 190
instrumentation, 198

Journal articles, 165, 177

Kalligraphische Übungen = calligraphy exercises, 185
Kammerverhandlungen = parliamentary debates, 194
K a n t on the author’s right, 346
Kapellmeister = orchestra conductor, 204
Karten = maps, 183, 193, embossed maps, 186
Katalog = catalogue, 162
Kautelarjurisprudenz = contractual case law, 237
Klagform = form of legal complaint, 189
Klassiker = classical authors, German, their attitude towards the author’s right,
84, 96
Kochbuch = cookery book, 179

Legal theory, with regard to ownership, 111
Lesebuch = reading-book (anthology), 180, 245
license, 295
logarithms, table of, 163
Lope de Vega, his originality, 218
            printing of his plays, 341

[2nd column:]

Marionettentheater = puppet theatre, 242
Martial, 323
medical calendar, 162
melody, 221
melodrama, 237
method, 197
Mitberechtigung = joint holding of a right, 249, 261
Molière, his originality, 218
            printing of his Précieuses ridicules, 341
monogram, 153
monopoly, 70, in Rome, 331, elsewhere in Antiquity, 333
Moreska = folk dance, 188
music, 177
Muster = designs, 227

Nachbildungen = reproductions, right in these, 173
            right to these, 211
Nachspiel = epilogue of a play, 237
natural right, 81
Nuremberg reprinting ban, 343

Obligation resulting from infringement of author’s right, 306
Öffentlichkeit der Ausführung = publicity of a performance, 240
oratorio, 237
orchestrion = mechanical music instrument, 231
overture, 237

Palimpsest, deciphering of, 164
Panmelodismus [a musical/philosophical concept from Schopenhauer!], 223
parade, 241
patent description, 191
pantomime, 188
Pfandrecht = lien
philosophical problems, 198
photographer as assistant to the artist, 204
plagiarism, 328
plan of a work, 197
planetariums, 186
portrait, 202
postal rates book, 162, 180
Predigt = sermon, 196
price list, 163
press, in Rome, 322
privileges, 84
privilege theory, 63f.

Rechtsbewußtsein = sense of justice, 16


Chapter 1 Page 357


352

Rechtsgeschäft = legal transaction, 5, 34
            not an object of the author’s right, 189
Redaktor = editor, 179, 206
Rede = speech, at a trial, 190, in parliament, 194
            at community councils, 195, at congresses, 195,
            other types of speeches, 196
Reflexwirkungen = spill-over effects, 42, 57
regimental order, 193
register, 182
relief map, 186
Romans, their concept of the author’s right, 319f., their
            jurisprudence, 8, 14

Sammlungen = collections, 178, 190, 194, 206, 245, 347
Schumann, 225
Schutzfrist = protection term, where rights are held jointly, 264
            extension of, 314
serviens bona fide = serving (as a slave) in good faith, 9, 344
servitude, acquisition of, 256
sexual relationships, representation of in art, 198
Shakespeare, his originality, 217
            printing of his plays, 340
signal calls, 189
social consequences of ownership, 40
Spieluhren, Spieldosen = musical clocks, musical boxes etc., 231
Stadtplan = city map, 184
Ständchen = serenade, 241
statistical compilation, 183
Stellvertretung = agency by proxy in author’s rights, 201
stenography, 198, 231
Stoff einer Dichtung = subject of a poetic work, 171
synoptic table, 182

Table, 183
tachygraphy, 198, in Rome, 321
Tanz = dance, 188

[2nd column:]

tariff, 163, 183
Taschenbuch = pocket-book, of plants, 182
Tellurien = astronomical models of the earth’s movement, 186
Terence, 335
testamentary instructions about publication, 151, 349
text, 246
theatre calendar, 162
theatre play-bill, 165
Teilung = division, 259, 271
title, of books, of newspapers, 132, 136
Totenmaske = death-mask
transcription, 211, 236
Tchaikovsky, 347

Uebersetzungen = translations, 172, 208, 209
unsittliche Schriften = immoral works, 199
usufruct, 278
utilization, 215

Verbietungsrecht = prohibition right, 2
Verhandlungen = negotiations, public, 192
Verlagsrecht = publishing (copy) right, 283, 292
Verordnung = ordinance, 192
Vertragsauslegung = interpretation of contract, 29
vindication, 257, 303
Vorbehalt = reservation, 235, 239
Vorlesung = public reading, 196, of someone else’s work, 234

Water right, 52
weather forecast, 165
Wohnungsanzeiger = directory, 161
Wörterbuch = dictionary, 181

Zeichnungen = drawings, for teaching purposes, 184,
            architectural, 184, 226, of designs, 185
Zeitlichkeit = temporality of author’s right, 45, 348
Zeitungen = newspapers, 165, 177
Zwischenspiel = interlude, 237



Translation by: Luis Sundkvist (pp.2, 58-85, 355-57)

    

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