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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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138 FIRST PART
[1st column:]
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.
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:]
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.
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.
No Transcription available.