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Chapter 1 Page 1

212                                    SECOND PART
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LITERARY PROPERTY, COUNTERFEIT, TRANSLATION.
      The act of publishing a translation of a French work into a foreign
language constitutes a counterfeiting offence (Law of 19-24 July 1793,
Art. 1; Code Pénal, Art. 423, 427) (1).

(Rosa v. Girardin.)
      After M. Rosa published in Paris a Spanish translation of a work [ouvrage]
by M. Girardin entitled Leçons de chimie élémentaire, he was sued by the latter
for counterfeit before the Correctional Tribunal of Rouen. – The defendant objected
that a translation into a foreign language did not constitute a counterfeit.
      However, a decision of 23 July 1845 declared the reality of the offence of
counterfeiting on the following grounds: – « Whereas it would be the most irrational
of claims to maintain that no encroachment had been committed – in particular,
an encroachment of unfair competition [atteinte de concurrence] – against the
author of a work written and published in French, just because one had
limited oneself to translating it and printing it in a foreign language, say,
Spanish as in this case; - Whereas although it is true that this translation is
aimed only at those who understand this foreign language, it is no less
true that one is aiming at a section of the public, that one is hoping to find
readers and buyers for the translation; and so one is in this way, albeit in
a not so significant proportion, taking possession of something that
belongs to another, which means precisely that one is violating the
prohibitions imposed by the law, which does not and could not make
any such distinction; - Whereas it is precisely this which M. Rosa is
being charged with; and he took the liberty to publish the work in
question without the consent of, and with detriment to the right of
either Lefèvre or the author Girardin, this edition in Spanish bearing
the title of Lecciones de química elementaria and being the
translation or the copy of the Leçons de chimie élémentaire;
- In view of Art. 1 of the law of 19-24 July 1793, and Art. 423, 427
and 52 f. of the Code Pénal; - The court pronounces Rosa guilty of
counterfeit for having, in violation of the abovementioned law of
1793 and of the exclusive right of the author Girardin or Lefèvre,
printed and sold the former's work, entitled Leçons de chimie
élémentaire, this counterfeit edition having been produced in
Spanish and entitled Lecciones de química; - In compensation
whereof the court sentences Rosa to a fine of 100 francs, on
pain of imprisonment in default of payment; declares the whole
edition to be confiscated and, consequently, that all the copies
are to be seized, and also confiscates the plates or stencils of
the counterfeit edition; - Ruling on the compensatory damages,
the court adjudicates 1,000 francs to Giardin. » - Appeal.

DECISION.
      THE COURT; - Accepting the arguments of the first judges;
- Confirms, etc.
      On 7 November 1845. – Court of Rouen, Criminal Chamber
- M. Simonin, President – M. Rieff, Attorney General – Messrs.
Liouville (from Paris) and Dasviel, lawyers.

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      (1) M. Pardessus, Droit commercial, vol. 1, nr. 164, teaches
the same doctrine: « Translating into Latin or a foreign language
a work that has been published in France, and putting this
translation on the market, may perhaps be the same as counter-
feiting it. In such a case, though, the courts would be able to
assess the circumstances... » This doctrine is also that of
M. Ét. Blanc, Traité de la contrefaçon, p.416. M. Renouard,
however, in Traité des droits d'auteur, vol. 2, nr. 16, had
adopted a different opinion, and this latter opinion, which
seems to have been sanctioned by practice, has appeared
preferable to M. Arm. Dalloz, for the twofold reason that
a translation reproduces not the expressions, but the ideas,
which are in the domain of everyone, and that, moreover,
a translation requires an intellectual effort which is
sufficient to turn it into a labour that is special and distinct
from the translated work (Suppl. to the Dict. Gén., vº
Propriéte litteráire, nrs 6 and 14). It goes without
saying that this opinion might be untenable in the case
that the language into which the work had been translated
happened to be understood by many people across
France, so that for those Frenchmen who did speak
that language the translation would be able to replace
the original work. The decision which is cited here
and which was criticized does not make this distinction.


Translation by: Frédéric Rideau