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636 (1 December 1814)                  Case law of the Court of Cassation
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1º APPEAL [pourvoi] – SOLICITOR –
      MANDATE

2º COUNTERFEIT – COMPILATION

1º The declaration of appeal lodged, in criminal
      matters, by a solicitor of the court that
      delivered the judgment (being) attacked, is
      valid, even though there is no special
      mandate from the accused, if otherwise, without
      being constituted by a specific act, he
      has signed a petition of appeal on behalf of
      the accused: this petition is sufficient to
      constitute him as the solicitor of record.
      (Code of Criminal Procedure, 417.)

2º The reprinting, unbeknownst to the author,
      of a collection or a compilation, constitutes
      the offence of counterfeiting, provided that
      this collection is not the mere copy of one or
      several other works, that its execution
      required the work of the mind, and that it is
      at once the product of concepts foreign to the
      author and of concepts that are his own.
      (Law 19 July 1793; Criminal Code, 425.)

            (Leclerc v. Villeprend and Brunet)
      M. the Abbé Cardon had published under the title
of Lectures chrétiennes a work consisting
of excerpts of sermons and devotional books. Two
editions of this book were published successively.
Messrs Villeprend and Brunet, printers at Lyon,
after having

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(5 December 1814)                  Jurisprudence of the Court of Cassation                  (5 December 1814)

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asked the director of the bookstore for permission
to reprint this work, published a third edition. –
M. Leclerc, the assignee of M. the Abbé Cardon,
lodges a complaint for counterfeiting.
      Judgement [jugement correctionnel] that rejects
the complaint, given that the work seized is part of
the public domain, and that the accused have moreover
obtained permission from the government to reprint.

Appeal – Judgement of the Imperial Court of Lyon, of
the 26th of August 1813, worded as follows: “Whereas
the law of 19 July 1793, in retaining for authors the
exclusive right to sell, have sold and distribute
their works, only applies to those (works) that are
the fruit of the conception of genius, and not to
those that contain only the copy of a previous book
reproduced almost under the same title with
additions furthermore taken from other authors
indicated; - and the deposit of two copies in the
National Library prescribed by article 6, same law,
to allow the prosecution of counterfeiters, can not
confer to the printer, who first would have printed
a work, of which the manuscript is just the copy of
other works belonging to the public domain, the right
to print and reprint them exclusively; – and from
the point of view of printers, article 2 of the
Council of State Decree of 30 August 1777 enjoins that,
when a printer has obtained a privilege to print a
previous book, this privilege ceases, and the printer
cannot request a continuation of the privilege for a
second edition, unless the book is augmented by at
least one quarter, without this being a reason to
refuse others the permission to print earlier editions
that have not been augmented; – and if the parties
were still under the rule of this privilege recognized
by the Decree of 30 August 1777, after Leclerc
published a first edition of the Lectures chrétiennes,
his privilege would have ceased for the second edition,
and it would have been free for Villeprend, Brunet
and Savy to reprint the first edition, while conforming,
as they have done, with the instructions given to the
bookshop; – and by law a previous work should not be
considered as the property of the person who reproduces
it unless it is presented with changes or additions that
make it possible to consider it as a new work, with
regards to its plan and its subject; – and, in fact,
the Lectures chrétiennes are only a copy of the
Prônes of the late M. the Abbé Cochin, and other
works mentioned by M. Cardon himself, and that which
was added by him does not even constitute so much as
a quarter of his book; and, from this point of
view, he should not be considered its author; and he
himself has never even had the pretension to consider
himself as such in the manuscript that he assigned to
Leclerc; and, consequently, the work is in the public
domain; so it is therefore without foundation that
Leclerc lodged his complaint for counterfeiting against
Villeprend, Brunet and Savy, and there is good reason
to revoke the seizure, with indemnification for damages.”
      An appeal against this judgement was formulated
at the office of the clerk of the Court of Lyon by
Mr Chauchat, solicitor of the Court, solicitor for
M. Leclerc, Mr Durand-Delorme, solicitor of the
tribunal of first instance, and Mr Marnas, lawyer,
the latter two claiming to be attorneys in fact for
Mr Leclerc.
      This appeal was based on the judgement having
made a false application of the law of 19 July 1793.

                        JUDGEMENT

      THE COURT; – Takes evidence from Villeprend,
Brunet and Savy; – And pronounces judgement on
the plea in bar proposed by them against the appeal
of Leclerc: – Whereas Chauchat, solicitor at the
Royal Court of Lyon, is one of the signatories of
the (declaration of) appeal lodged in the name of
Leclerc, and he claims in this document to be the
solicitor for M. Leclerc; whereas the latter’s
petition to appeal is on file, and this
document, which is a solicitor’s act, justifies the
qualification of solicitor of record for Leclerc
taken by the aforementioned Chauchat, against whom
moreover an action of disavowal has never been
lodged – and under the terms of article 417 of the
Code of Criminal Instruction, the (declaration of)

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appeal can be lodged by the solicitor of the
condemned party: so therefore the (declaration of)
appeal against the judgement of Lyon, made in the
name of Leclerc, by Chauchat, his solicitor in the
instance of appeal, is in order and valid; – Reject
the plea in bar proposed by the intervening party
against the appeal of their adversary.
      And decide on the merits of the case [Et
statuant au fond]: –In view of the articles 1, 2, 3,
4 and 7 of the law of 19 July 1793; – Whereas the
law of 19 July 1793 applies, according to its literal
wording, to the authors of writings of any kind; and,
though it does single out works which are the
fruit of genius, it does also expressly designate
productions of the mind; and the law therefore extends
to also cover collections, compilations and other works of
this nature, when these works required, for their
execution, the discernment of taste, selection based on
knowledge, and labour of the mind; when, in short,
far from being the mere copy of one or several other
works, they were at once the product of conceptions
foreign to the author, and of conceptions that are
his own, and following which the work has taken a
new shape and a new character; – And whereas, 1º
the provisions of the Council of State Decree
of 30th August 1777, which was invoked in the
criticized judgement, could not be applied in a
case in which the facts are so absolutely different
from those to which this provision refers; – Whereas,
2º it had been declared by the Court of Lyon, that
the work entitled Lectures chrétiennes was just a
copy of the Prônes by Cochin and other previous
works, and that which was added by Cardon did not even
make up a quarter of the work; but it was not judged
by this Court that the copy was purely material, that
the copied passages had been reassembled and connected
with one another, without this connection requiring
any knowledge, discernment, or intelligence; and,
in short, this Court did not consider that the
Lectures chrétiennes, such as they were updated by
Cardon, did not constitute a product of the mind by
the aforementioned Cardon; and, on the basis of the
facts such as they were set out by the Court of
Lyon, this Court was, consequently, unable to decide
that Villeprend and Brunet's printing of the work
by Cardon entitled Lectures chrétiennes, without the
permission of Leclerc, the assignee of the afore-
mentioned Cardon, did not constitute a counterfeiting
offence; and that it therefore violated the articles
of the law of 19th July 1793 cited above; – Annulled, etc
      Of 2 December 1814. – Criminal section – President M.
Barris – Clerk M. Aumont – Concluding conf. M. Merlin.

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Translation by: Silje Normand