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Court of Cassation on telegraphic news, Paris (1861)
Source: Bibliothèque universitaire de Poitiers (SCD): Dalloz, Jurisprudence générale. Recueil Périodique et critique de jurisprudence, de legislation et de doctrine, 1862.1.136
Citation:
Court of Cassation on telegraphic news, Paris (1861), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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COURT OF CASSATION 157
[1st column:]
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;
[2nd column:]
- 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
No Transcription available.
Source: Bibliothèque universitaire de Poitiers (SCD): Dalloz, Jurisprudence générale. Recueil Périodique et critique de jurisprudence, de legislation et de doctrine, 1862.1.136
Citation:
Court of Cassation on telegraphic news, Paris (1861), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | Commentaries: [1]
Translation only | Transcription only | Show all | Bundled images as pdf
[1st column:]
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;
[2nd column:]
- 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
No Transcription available.