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Chapter 1 Page 1

136                                    FIRST PART

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LITERARY PROPERTY, TELEGRAPHIC NEWS REPORT, AGENCY,
REPRODUCTION, UNFAIR COMPETITION.
      Telegraphic news reports bringing to the notice of the public political,
scientific and literary news, cannot be considered works of the mind, and are there-
fore not susceptible of literary property (Law of 19 July 1793) (1);
      Consequently, an agency created for the purpose of communicating to
newspapers who engage its services telegraphic news reports which are
transmitted to it from various countries by paid correspondents, does
not have the right to prevent other newspapers from reproducing the same
news reports after they have been published in the subscribing newspaper (2);
      And such an act cannot either be qualified as unfair competition, entitling
one to sue for damages, since the non-subscribing newspapers which in this
way benefited for free from the news reports published by the subscribing
newspaper, did not use any undue manoeuvre to obtain this advantage, and
they did not, say, bring forward or delay the dates on which their issues
are normally published.

(Havas, Bullier & Co. v. Gounouilhou.)
      Messrs Havas, Bullier & Co., have set up in Paris an agency for the
purpose of supplying newspapers which are subscribed to this agency, with
the news items which are transmitted to it by its correspondents from the
main cities of Europe by means of electrical telegraphy. - Amongst the
newspapers which have signed up for a subscription with the Havas Agency,
is the newspaper Le Peuple from Bordeaux. – Because La Gironde, a
non-subscribing newspaper which is also published in Bordeaux, coming out
a few hours after Le Peuple, has been literally reproducing on its pages
news items which came from the Havas Agency's correspondents, without
even acknowledging the source, Messrs Havas, Bullier & Co. decided
to lodge a claim against M. Gounouilhou, the manager of La Gironde, in order
to have such reproduction prohibited and to obtain compensation for
damage caused to the plaintiffs in the past.
      A decision of the Commercial Tribunal of Bordeaux, dated 11 January 1861,
accepted this claim for the following reasons: - « Whereas it is indisputable, in
theory, that the news of an event is a thing of the public domain, belonging to
everyone; but it is equally certain that once this news is gathered by an
individual, subjected by him to a certain editing, and transmitted by him in some
way or other from a more or less remote location, it becomes his thing, his property;
and of this immaterial thing one should say exactly what one says about an ownerless
object on which man lays his hand for the first time, an object which he fashions
by his work, recreates by his industry, his intelligence or activity (Troplong,
Prescript., art. 2219, N°3); - Whereas it is well-known that the plaintiffs,
benefiting from the promptness
_____________________________________________________________________________________

(1 and 2) This important decision is in accordance with the rules which determine the
constitutive features of works of the mind to which the guarantee established by the
law of 19-24 July 1793 applies. – On works which must necessarily fall within the public
domain, as soon as they appear or are published, see what is said about this in Jur.
Gén., v. Propriété litt., n°119.

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Chapter 1 Page 2

COURT OF CASSATION                                    157

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with which telegraphy can transmit news across enormous distances, exploiting the
public interest which pertains to the fast arrival of these news reports, have
set up in Paris an important agency, which is represented in the major cities of
the world by specially appointed employees; and whenever an event takes place in
a country, these agents send to Paris telegrams [dépêches] which are delivered, on
a subscription basis, to newspapers in the capital and the provinces; and, amongst
these newspapers there is one in Bordeaux called the Journal du Peuple; and another newspaper
based in the same city and appearing under the name of La Gironde, which is not
subscribed to the Havas Agency, considered itself to be entitled to reproduce the
elegrams [dépêches] which appear in the Journal du Peuple, and which are, every morning,
sent to its offices from Paris; - Whereas Havas & Co. maintain that, as the directors
of the agency which bears this name, they are the exclusive proprietors of the telegrams
[dépêches] that are processed in their bureaus and forwarded by these to newspapers in
Paris and the provinces; and that they sell these telegrams, and that nobody else
apart from those who pay for them has the right to reproduce them and turn them into
an object of speculation and profit; that the reproductions which are carried out by
the newspaper La Gironde encroach on their rights, and that, at the same time as making
the latter indemnify them for the damages which it has caused them up to this day, it
is necessary to forbid that newspaper to undertake any such reproduction in future; -
Whereas Gounouilhou, whilst acknowledging up to a certain point that the telegrams
are definitely the property of Havas until the moment they are made public, maintains
that they cease to be Havas's property after they have been published by the Journal
du Peuple; that they then fall within the public domain; that every newspaper, such as
the one of which he is editor, has the right to reproduce them; - Whereas if, as is
recognized by the newspaper La Gironde, the plaintiffs are proprietors of the telegram
which they send to the Journal du Peuple, it is impossible to accept that, by virtue
of the telegram having been published in this newspaper, they lose this property right,
and that every other newspaper is entitled to reproduce it; and indeed, in order to
lose the right of property which one has in an object, this object has to be alienated in
some way, this property right must be relinquished in some fashion; and this is not the
situation we are dealing with; and Havas & Co. sell to the Journal du Peuple what they
have sold and delivered a few instants earlier to newspapers in Paris, and what a
few instants later they will deliver to newspapers in Madrid or elsewhere, the object
of this sale being the opportunity to share in the news which they compile or publish,
but by no means do they transfer their right of property in these telegrams; and this
is true to such an extent that after having sold these in one place, they can sell them
in another, without the first purchaser taking exception to that; and this truth is so
obvious that it must surely compel those who are most opposed to the opinion being set
forth in the present judgment to recognize that La Gironde, in this case, certainly
does not have the right to act as it has been doing, though the grievance should have
come from the Journal du Peuple, rather than from the Havas Agency; and this forced
admission must necessarily imply, at the very least, that La Gironde is taking something
that does not belong to it; it is true that the Journal du Peuple, by printing these
telegrams, delivers them to the curiosity of the public; but from there to permit another
newspaper to publish them itself and derive profit for free from an object for which it
should be paying for, there is a difference which anyone can see; and this observation
is all the more true, given that one must, first of all, emphasize that La Gironde
reproduces the telegrams sent by Havas Agency word for word; that not only does it
state the event, but it even presents it in the same form with which the Havas Agency
had invested it, however little literary value this form may possess; that, secondly,
La Gironde understands so perfectly well that by acting in this way it is overstepping
its rights, that it avoids indicating anywhere on its pages the source of the published
news item; that in this way it causes people to believe that it has obtained it from
its own correspondents; - Whereas it is indisputable that only through the Havas Agency
do the telegrams published by the Journal du Peuple reach Bordeaux; and without this
agency the Parisian newspapers who are subscribed to it would not find out about these
news until the following day; and in addition to the right which exists in favour of the
plaintiffs, it is most certainly useful to give encouragement to enterprises of the
sort we are concerned with in this law-suit, both in the interests of the public and
for the sake of the private interests affected; and to authorize the newspaper La
Gironde to act in the way it does, is to allow it to encroach on a property right,
and signifies an injury to respectable private interests;

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- Whereas, moreover, the other newspapers which appear in Bordeaux have not mistaken
themselves on the import of such a publication; for, like La Gironde, they might well try
to add to their usual interest that of the most recent, breaking news; but they have
understood that this right, which the Journal du Peuple buys for a lot of money - that
this right they could not possibly claim without loosening their purse; - Whereas, finally,
even if telegraphic dispatches do not, properly speaking, constitute a literary work,
and the question put to this tribunal is novel by virtue of the very nature of the
object of litigation, the property in these telegrams can be governed by the law of
1793, whether one examines the terms of this law, or whether one takes into account
the case law which has proclaimed how it is to be applied; and, in fact, the Court of
Paris ruled, on 9 February 1832, that the law of 1793, as far as the deposit formalities
are concerned, was not applicable to objects which by their nature are not susceptible
of being deposited and classified in public libraries, in contrast to works of
scholarship, literature or the fine arts; and it is certain that such is the nature of
a telegraphic dispatch, which has no other value than through its novelty; and, besides,
imposing the deposit requirement in such a case would lead to the most serious incon-
veniences for Havas & Co. and would make the exploitation of their enterprise
impossible; and, finally, it was decided by the Court of Paris, on 25 November 1836 (1),
that he who literally reproduces in a newspaper an article from another newspaper
causes a detriment to the latter which has to be indemnified, in accordance with
the general principle contained in art. 1382 of the Code Napoléon; - Whereas, with
regard to compensatory damages, etc. »
      However, on appeal by M. Gounouilhou, decision by the Court of Bordeaux, on 22
April 1861, which annuls [the first court's decision] in these terms: - « Whereas,
in order to prevent the appellant from reproducing in the newspaper La Gironde
the dispatches or news which they transmit by telegraphic means, for an agreed price,
to the manager of the Journal du Peuple, the respondents invoke: 1° the provisions of
the law of 19 July 1793 regarding literary property; 2° the general regulations which
protect the right of property; 3° the provision contained in art. 1382 of the Code
Napoléon; - Whereas, with regard to the first and second arguments, it is necessary
to distinguish between the leading articles [articles de fond] on politics and literature
which newspapers publish and simple news items; - And the former are works of the mind,
the product of the writer's labour, bearing to some extent the imprint of his personality;
- And, in this respect, they can be the object of a property right which continues to exist
after their publication, and which the author may wish to retain, whether so as to allow
the newspaper to which he contributes his articles to profit from them exclusive, or
whether he is planning, if it so suits him, to produce a new edition of these articles;
and they indisputably fall into the class of writings to which the protection of the
law of 19 July 1793 extends; - It is different in the case of simple news items, such
as those which the Havas Agency transmits to the Journal du Peuple as telegraphic
dispatches; - And these telegrams are no more than a quicker means of bringing to the
attention of the newspaper and its readers recent facts or events which are as yet
unknown, and they derive all their value from the lack of information which people
have about these events; as long as they remain in the form of private telegrams, they
are, just like letters, the property of the manager of the newspaper to which they
are addressed; and if third parties, say, a journalist were to intercept them or if
he arranged for a copy to be secretly delivered to him, he would be encroaching on
another's property and would become liable for compensatory damages; the facts,
however, the events which these telegrams announce are in the public domain [domaine
commun], and they could not in themselves constitute the object of an exclusive
[privatif] right; - And the only advantage of the newspaper which is the first
to be informed, in whichever fashion and at whatever price this may be, is that
it can be the first to profit from the news item, the first to communicate it
to its readers; but once it is known and put into circulation, it belongs to
everyone, and the person who has published it has no more right to it than
anyone else; so there is no object here susceptible of any appropriation
whatsoever, and the respondents are not entitled to support their claims by
invoking the special law of 19 July 1793 or the common law regulations which
protect property in general; - Whereas, for art. 1382 of the Code Napoléon
to be applicable, it is not sufficient that the act held against the defendant
should be harmful to the plaintiff, if that act is permitted and the defendant
has just done something which he was entitled to do; and from the instant a
piece of news becomes public, everyone has

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Chapter 1 Page 3

138                                    FIRST PART

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the right to make profit for himself out of it, to comment on it by word of
mouth or in print; and this right belongs to journalists as to everybody else;
and one of their most essential and most useful concerns, one of their
obligations towards their subscribers, is precisely to seek out information,
to collect and record in their columns all the news, all the events of
any interest which they are able to find out about; and so the newspaper
La Gironde, which comes out a few hours after the Journal du Peuple, has
the right to repeat the news and events put into circulation by the latter
newspaper; - And it matters little whether La Gironde reproduces these in
the same terms or in different ones, since the form is of no consequence
here, and the whole value of the news is in the news itself; and it would
be pointless, whilst admitting that the newspaper La Gironde has the right
to reproduce the gist [la substance] of the news published by the Journal
du Peuple, to prohibit it merely from using the same expressions; - Whereas
if La Gironde, with a view to profiting gratis from the telegrams of the
Havas Agency, had brought forward or delayed the publication of its daily
issue, one might perhaps see in that a dishonest strategy which would justify
the application of art. 1382; but this reproach is not being levelled at
La Gironde, and this newspaper, which continues to appear at its usual time,
cannot be obliged to pass over in silence facts which at the moment it sends
the composed pages of that day's issue to be printed are already public
knowledge [sont à la connaissance du public]; - For these reasons, etc. »
      APPEAL by Messrs Havas, Bullier & Co., for the violation of the law of
19 July 1793 and art. 544, 546, and 1382 of the Code Napoléon, because the
contested decision refused to recognize that the plaintiffs had a right of
property in the dispatches which are transmitted to them from all parts of
the world by means of electrical telegraphy, through their numerous agents,
and which they then communicate to the newspapers which are subscribed to their
agency. - The Havas Agency, they admit, does not, it is true, have the
exclusive right to obtain political or otherwise news at their source, and
to transmit them by means of electrical telegraphy. It merely claims that
it has the property in the dispatches which are transmitted to it, at great
expense, by its correspondents, and, consequently, that it has the right to
prevent anyone else from exploiting the publication of these dispatches.
Certainly, the formulation of art. 1 of the law of 19 July 1793 on literary
property is very broad: « The authors of writings of all sorts, it states
there, shall enjoy, during their entire life, the right to sell, authorize
for sale and distribute their works in the territory of the Republic, and
to transfer that property in full or in part. » Thus, every work which to
some degree reveals intellectual labour falls under the scope of that article.
- Now, the act of obtaining, through intelligence, enterprise, and the
expenditure of money, news items which are entirely unbeknown at the place
where the individual who obtained them happens to be, is that not, as far
as the essence is concerned, a true act of creation, and does it not, as
far as the form of its swift and laconic writing up is concerned, display
a special character [un cachet spécial] which is as susceptible of literary
property as a sketch, a geographical map, or a photograph? - Does property
really not exist above all and at any rate for this collection of news
items which come in from all parts of the world and are gathered together
in a synoptic table that is placed every day before the eyes of the reader?
- The decision does recognize that the original telegrams are the property
of the agency, which is entitled to be the first to subject them to publication;

[2nd column:]

but it adds that as a result of this publication the agency's property
disappears and that, consequently, the latter does not have the exclusive
right of reproduction, and this being so because the facts contained in
these telegrams are in the public domain. The reasoning observed by the
court does not have the significance which the decision ascribes to it. If
the events the news of which make up the subject of the telegram are in
the public domain - something that is beyond question - then it does
certainly follow that every newspaper can arrange to have news of these
events transmitted to it by its own correspondents, and then communicate
these to its readers, but it cannot make public and borrow them from
reports which it has not organized or paid for in any way. The concession
which the agency makes to one newspaper, namely of the right to publish on
its pages the dispatches which the agency communicates to it, cannot entail
the same right for all other newspapers which have nothing whatsoever to do
with this concession, it cannot mean that they in their turn are entitled
to make these dispatches into an object of speculation. Once it is admitted
that the Havas Agency is the proprietor of the original telegrams which it
receives from its correspondents, and that it alone has the right to have
them published in a newspaper, it would be inconsistent to deny, after this
publication, that it has the same right with regard to all other newspapers.
- The plaintiffs conclude by asserting furthermore, that the newspaper
La Gironde has committed an act of unfair competition, for which reason it
should in any case have been sentenced to pay compensatory damages.

DECISION.
      THE COURT; - On the only argument of the appeal and its various
ramifications: - Whereas telegraphic dispatches which bring political, scientific or
literary news to the knowledge of the public cannot be regarded as works of the mind
and placed under the protection of the law of 19 July 1793; - Whereas from the instant
that a piece of news has been published in print, everyone has the right to make his
profit from it, to repeat it and comment on it; and this right belongs to a journalist
just as it does to anyone else;
      Whereas the contested decision declares that the newspaper La Gironde neither brought
forward nor delayed the publication of its daily issues, in order to gratuitously profit
from the telegrams of the Havas Agency, and it has not committed any act from which one
might deduce an intention of unfair competition, so in acquitting M. Gounouilhou from
the charge lodged against him, the Imperial Court of Bordeaux has not violated any
law; - Reject the appeal.
      On 8 August 1861 – Chamber of Petitions - Messrs Hardoin, cons. f. f. de pr.- De
Boissieux, Reporter – De Peyramont, Attorney General, c. conf.- Rendu, lawyer.


Translation by: Freya Baetens