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Advice on the application of the 1817 Act to works copyrighted before 1817, Amsterdam (1817)
Source: Bijzondere Collecties, Universiteitsbibliotheek van Amsterdam, Bibliotheek van het Boekenvak, archief KVB, inv. nr. KVB A 335
Citation:
Advice on the application of the 1817 Act to works copyrighted before 1817, Amsterdam (1817), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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13 translated pages
Chapter 1 Page 1
ADVICE
OF THE HONOURABLE LORDS
J. van der LINDEN, M.C. van HALL,
N. SINDERAM, S.AE. VERBURG
en F.A. van HALL,
Juris Utriusque Doctores, and Lawyers, licensed before the High Court of Justice in The Hague, and practicing within Amsterdam,
Concerning the sense and meaning of the enacted in Art. 3 of the Act of 25 January 1817, determining the rights which can be exercised with regard to the PRINTING AND PUBLICATION OF LITERARY AND ARTISTIC WORKS in the Netherlands.
At Leyden, Haarlem and Amsterdam, by
D. du MORTIER and SON,
A. LOOSJES, P.Z.,
AND
JOH. van der HEY.
MDCCCXVII.
Chapter 1 Page 2
Notice.
The Commission, by some Booksellers in this Kingdom, in the past years delegated to us, to counteract the shameful copying and selling thereof in every possible way, and with which accomplishment we constantly keep busy, has caused us to seek the advice of some of the most famous Legal Experts about the true sense and proper meaning of the 3rd Art. of the Act of 25 January last, concerning the publication of Literary and Artistic Works; forasmuch we feared that selfishness could perhaps operate to give a false interpretation of the provisions therein, and in that way continue
Chapter 1 Page 3
their robbery. We give this Advice herewith to the Public for reading and consideration, and do not doubt that we hereby also promote the beneficial objective of our honoured Clients.
D. du MORTIER.
A. LOOSJES, P.Z.
JOH. van der HEY.
Chapter 1 Page 4
Case.
In Art. 3 of the Act of 25th January 1817, providing the rights which can be exercised with regard to the printing and publication of literary and artistic works in the Netherlands, is provided:
"That the copyright, (described in the first and second article), will not last longer than twenty years after the death of the author or translator."
Is asked:
"Whether aforesaid 3rd Article is also applicable to such literary and artistic works, of which the copyright originated, or has been obtained before the introduction of the Act of 25 January 1817; and that therefore the Owners of this copyright, through the introduction of this Act, have lost, or will lose in future, this right, when the Authors of the literary and artistic works referred to in the Act already have been deceased for more than twenty years, or thereafter pass away?"
Chapter 1 Page 5
(2)
The undersigned, Juris Utriusque Doctores, and Lawyers, licensed for the High Court of Justice in The Hague, and practicing within Amsterdam, having seen the above Case-position and the question raised therefrom, are, (under correction) of the opinion:
That the indicated article of the aforesaid Act can never be, or be made to be, applicable to such Literary and artistic works, of which the copyright was already lawfully obtained, under previous regulations or otherwise, before the introduction of this Act; and that therefore the owners of such copyright, have not lost, or will not loose that right in the event that the Authors of their work already have been deceased for more than twenty years, or thereafter pass away; but rather that those owners retain all the rights which the previous Acts have granted to them; if they, in the re-publishing or reprinting of the aforesaid Works, act in line with the provisions which are provided for by law to that effect.
The undersigned deem it necessary, before they proceed to argue this here opinion, to note:
That before the month of December 1796, no written Acts concerning the book trade have existed in this country; and that therefore, until that time, all disputes relating thereto, have had to be judged and decided according to the fundamental rules of law on Property, and to customary practice.
Chapter 1 Page 6
(5)*
Those fundamental rules of law entail, as is known to all, that no Property can expire through a lapse of time alone, unless one has left their property, and this has fallen into the hands of a third party, and thus the property has been obtained by its third owner by prescription; while, apart from this situation, no owner remaining in possession of his property, can be deprived of this property.
It follows that all copyright, lawfully obtained before the Official Publication of 8 December 1796, has remained the lawful property of the owners thereof.
As regards the Official Publication itself, (the first Act concerning the book trade in this country,) it enforces this right of property for booksellers, their heirs and assignees; as if, (thus reads art. 2 of this Publication) the reported right is a right, whereon no one, without his consent, has claim, and wherein no one may damage him.
In a subsequent Act, namely that of 3rd June 1803, is likewise enforced this right of property, in almost identical terms, the second article of this Act reading as follows: as if the reported right of publication were a property, whereon no one, without his consent, has legitimate claim, and in the exercising of said right no one may damage him.
In both these Acts, no provisions are found, by which the copyright, or the property of Literary and artistic works, is limited to a certain set of years; from which therefore
* [Wrong numbering of pages]
Chapter 1 Page 7
(6)
results that all copyright, obtained during the existence of these Acts, just as that, which was obtained before the Official Publication of December 8 1796, remains the immutable property of the owner thereof, and is not lost through a lapse of time alone.
With the French Acts being introduced in this country on 1st March 1811 is enacted, by Decree of 9th April 1811, the Decree of 5th February 1810, containing the Regulations on the Book printing and the Book trade introduced in the Departments of the former Holland: in 39th Article of this Decree is said: The property right is reserved for the author and to his widow for life, if the marriage covenants of the latter entitle her thereto; and to their children for twenty years: from which seemingly, by legal effect, must be inferred that the copyright, obtained under the French administration, is obtained not so whole and unlimited, but with the provision that it lapses after a term of twenty years after the death of the Author.
By Decree of the King, who was at that time Sovereign of the United Netherlands, from 24th January 1814, this provision is abrogated again, in fact, after the reservation of the right of Property to every Author and Printer has been deemed necessary, in the objectives of this Decree, specified as one of the objectives of the Official Publication of 3 June 1803, and in the spirit of the former state of affairs, subsequently is enacted in art. 6 of this Decree: anyone, who publishes an original work,
Chapter 1 Page 8
(7)
be it all at once, be it in volumes or parts, of which he lawfully owns the copyright as author or otherwise, obtains hereby, for himself and his heirs, the exclusive right to publish etc. this work, of which seemingly must to be drawn the legal outcome that the vested copyright, since the announcement of this Decree, until the entry into force of the Act of 25th January 1817, remains the property of the owner thereof, and is not lost by any course of time.
As concerns our already stated opinion regarding the question presented at the Case-position, and relating to the latter Act: which rests on the following grounds:
Firstly, it is apparent from the words of the third article of the Act, that in it is only spoken of the copyright that was set out in the two previous articles: it is beyond a doubt that the rights previously obtained by Author or owners of Literary and artistic works, derives its force, not from the Act of 25th January 1817, but from the previously existing regulations thereon, and thus should be judged accordingly; and that thus that copyright, which by this Act is enacted and amended for the future, and to which thus are applicable the terms and provisions present in Article 3 of the new Act, is something entirely different than that from which the owners of earlier published work derive their rights.
Chapter 1 Page 9
(8)
Secondly, it is a generally accepted, fundamental rule of Act that Acts only decide for the future, and with regard to the past do not apply retroactively: in the Roman Act, which is still valid as ratio scripta in the civilized world, and among others, in the L. 7. Cod. de legibus, was already said: leges futuris certum est dare formam negotiis, non ad facta praeterita revocari; and the as yet, in this Kingdom, existing legislation, has explicitly accepted this principle in the second article of the Civil Code.
While finally all Legal Experts, who have dealt with the so-called transitory Act, uniformly teach that with no newer Acts, rights, which were once lawfully obtained, can be appropriated or restricted.
It is beyond a doubt that the copyright on Literary and artistic works, which existed and was obtained before the establishing of the Act of 25th January 1817, under previously existing Acts in this respect, was a lawful and indisputable property of the owners thereof, as, among other, is apparent from the Decree of His Majesty as Sovereign of the Netherlands, laid down on 24th January 1814, which in art. 6 has laid down in so many words that: "Anyone who publishes an original work, of which he lawfully owns the copyright as author, or otherwise, hereby obtains, for himself and his heirs, the exclusive right to publish that Work, etc."
Chapter 1 Page 10
(9)
This vested right, this jus in re, that property, cannot be impeded by subsequent Acts, let alone be appropiated.
It is true that, in art. 7 of the Act of 25th January 1817, it is said "that also subject to the provisions of this Act are all new publications, or reprints of Literary and artistic works published after the same promulgation." Yet it is undeniable that the legislator by this Regulation could or would have understood no other than that anyone, who would in future publish a new edition or copy, in such publication or copy must comply with the formulaic provisions of the Act related thereto, and be subject to it.
And that this, and nothing else, can have been the spirit of the Legislators, is demonstrated:
Firstly: from the words of that article itself, in which is treated only of the publication and reprinting as such, and not of the right to it, that is, of the copyright:
Secondly: from the principle that is accepted by all Legal Experts concerning the interpretation of Acts, namely that the Act must be judged and developed from the Act itself; and when comparing this fundamental rule with the latter Decree of 24th January 1814, which has not been abolished, is found in the 13th Article thereof, almost in the same terms, the same provision as in the 7th Article of the Act of 25th January 1817, while there could have been no doubt, at least, about the objective of the Legislators,
Chapter 1 Page 11
(10)
regarding previously published Literary and artistic works; forasmuch that objective is expressly demonstrated in the Decree itself; and at the time was absolutely necessary, by virtue of changes introduced in the French legislation concerning this, which by the Act of 25 January 1817 (as the aforesaid Decree of 24 January 1814 had provided all these rights) would have been entirely useless.
Thirdly: even if the interpretation of the 7th Article of the Act of 25th January 1817, hereby accepted by us, did not result from the words thereof, and even though these words of a more uncertain meaning, even then would that interpretation, above all others, be preferred, because thereby is not given retrospective effect to the Act itself, against its nature, and contrary to the principle of justice, as a consequence of which once lawfully acquired rights and property would be restricted or appropriated.
One can surely presuppose that the legislator, with the Act of 25 January 1817, intended to lay down rules, as regards such formalities, as he desires, that would be kept in mind when publishing or reprinting earlier published Literary and artistic works, after the enactment of this Act, but by no means that he also desired to restrict or appropriate once lawfully acquired copyright: if this would have been the objective thereof, (which we deem impossible for the reasons provided,) he ought
Chapter 1 Page 12
(11)
to have done so by an explicit and clear regulation, such as was not present in the Act of 25th January 1817.
Finally, it is the opinion of the undersigned, in any case in accordance with those principles of equity and justice that the legislator in the laying down, and the legal scholar in the interpretation, of an Act ought to never lose sight of.
After all, anyone who obtains a copyright after the Act of 25 January 1817, be it as author, be it as seller thereof, knows, or at least could know that, after the lapsing of twenty years after the Author's death, that right will cease to exist: this may unfavourably affect the ownership or value of Literary and artistic works: the Act exists and is known to everyone: it may oppress, but it oppresses all the stakeholders equally, and is therefore taken to be just from the latter point of view.
But if one would desire to retroactively apply the third article of the Act of 25 January 1817 to the previously acquired copyrights, one must also assign the legislator an unjust objective; because, in this case, how cheated would those feel, who, before the enactment of the Act, securely relying on former regulations -- regulations which reserved the copyright as vested property indefinitely and forever -- had bought any copyright of Literary Works or Artworks, whose Authors had been deceased for more than twenty years, or those Authors sooner or later from its heirs or
Chapter 1 Page 13
(12)
assignees: how deceived, we say, would such people feel, when they saw themselves deprived of that Lawfully acquired right, without any fault on their part, by an arbitrary legal provision, and their lawfully property destroyed, by one pen stroke as it were?
Thus (salvo meliori) advised within Amsterdam, 31th March 1817.
(Has been signed:)
J. van der LINDEN.
M.C. van HALL.
N. SINDERAM.
S.AE. VERBURG.
F.A. van HALL.
Translation by: Miluska Kooij
Source: Bijzondere Collecties, Universiteitsbibliotheek van Amsterdam, Bibliotheek van het Boekenvak, archief KVB, inv. nr. KVB A 335
Citation:
Advice on the application of the 1817 Act to works copyrighted before 1817, Amsterdam (1817), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | No Commentaries
Translation only | Transcription only | Show all | Bundled images as pdf
13 translated pages
Chapter 1 Page 1
ADVICE
OF THE HONOURABLE LORDS
J. van der LINDEN, M.C. van HALL,
N. SINDERAM, S.AE. VERBURG
en F.A. van HALL,
Juris Utriusque Doctores, and Lawyers, licensed before the High Court of Justice in The Hague, and practicing within Amsterdam,
Concerning the sense and meaning of the enacted in Art. 3 of the Act of 25 January 1817, determining the rights which can be exercised with regard to the PRINTING AND PUBLICATION OF LITERARY AND ARTISTIC WORKS in the Netherlands.
At Leyden, Haarlem and Amsterdam, by
D. du MORTIER and SON,
A. LOOSJES, P.Z.,
AND
JOH. van der HEY.
MDCCCXVII.
Chapter 1 Page 2
Notice.
The Commission, by some Booksellers in this Kingdom, in the past years delegated to us, to counteract the shameful copying and selling thereof in every possible way, and with which accomplishment we constantly keep busy, has caused us to seek the advice of some of the most famous Legal Experts about the true sense and proper meaning of the 3rd Art. of the Act of 25 January last, concerning the publication of Literary and Artistic Works; forasmuch we feared that selfishness could perhaps operate to give a false interpretation of the provisions therein, and in that way continue
Chapter 1 Page 3
their robbery. We give this Advice herewith to the Public for reading and consideration, and do not doubt that we hereby also promote the beneficial objective of our honoured Clients.
D. du MORTIER.
A. LOOSJES, P.Z.
JOH. van der HEY.
Chapter 1 Page 4
Case.
In Art. 3 of the Act of 25th January 1817, providing the rights which can be exercised with regard to the printing and publication of literary and artistic works in the Netherlands, is provided:
"That the copyright, (described in the first and second article), will not last longer than twenty years after the death of the author or translator."
Is asked:
"Whether aforesaid 3rd Article is also applicable to such literary and artistic works, of which the copyright originated, or has been obtained before the introduction of the Act of 25 January 1817; and that therefore the Owners of this copyright, through the introduction of this Act, have lost, or will lose in future, this right, when the Authors of the literary and artistic works referred to in the Act already have been deceased for more than twenty years, or thereafter pass away?"
Chapter 1 Page 5
(2)
The undersigned, Juris Utriusque Doctores, and Lawyers, licensed for the High Court of Justice in The Hague, and practicing within Amsterdam, having seen the above Case-position and the question raised therefrom, are, (under correction) of the opinion:
That the indicated article of the aforesaid Act can never be, or be made to be, applicable to such Literary and artistic works, of which the copyright was already lawfully obtained, under previous regulations or otherwise, before the introduction of this Act; and that therefore the owners of such copyright, have not lost, or will not loose that right in the event that the Authors of their work already have been deceased for more than twenty years, or thereafter pass away; but rather that those owners retain all the rights which the previous Acts have granted to them; if they, in the re-publishing or reprinting of the aforesaid Works, act in line with the provisions which are provided for by law to that effect.
The undersigned deem it necessary, before they proceed to argue this here opinion, to note:
That before the month of December 1796, no written Acts concerning the book trade have existed in this country; and that therefore, until that time, all disputes relating thereto, have had to be judged and decided according to the fundamental rules of law on Property, and to customary practice.
Chapter 1 Page 6
(5)*
Those fundamental rules of law entail, as is known to all, that no Property can expire through a lapse of time alone, unless one has left their property, and this has fallen into the hands of a third party, and thus the property has been obtained by its third owner by prescription; while, apart from this situation, no owner remaining in possession of his property, can be deprived of this property.
It follows that all copyright, lawfully obtained before the Official Publication of 8 December 1796, has remained the lawful property of the owners thereof.
As regards the Official Publication itself, (the first Act concerning the book trade in this country,) it enforces this right of property for booksellers, their heirs and assignees; as if, (thus reads art. 2 of this Publication) the reported right is a right, whereon no one, without his consent, has claim, and wherein no one may damage him.
In a subsequent Act, namely that of 3rd June 1803, is likewise enforced this right of property, in almost identical terms, the second article of this Act reading as follows: as if the reported right of publication were a property, whereon no one, without his consent, has legitimate claim, and in the exercising of said right no one may damage him.
In both these Acts, no provisions are found, by which the copyright, or the property of Literary and artistic works, is limited to a certain set of years; from which therefore
* [Wrong numbering of pages]
Chapter 1 Page 7
(6)
results that all copyright, obtained during the existence of these Acts, just as that, which was obtained before the Official Publication of December 8 1796, remains the immutable property of the owner thereof, and is not lost through a lapse of time alone.
With the French Acts being introduced in this country on 1st March 1811 is enacted, by Decree of 9th April 1811, the Decree of 5th February 1810, containing the Regulations on the Book printing and the Book trade introduced in the Departments of the former Holland: in 39th Article of this Decree is said: The property right is reserved for the author and to his widow for life, if the marriage covenants of the latter entitle her thereto; and to their children for twenty years: from which seemingly, by legal effect, must be inferred that the copyright, obtained under the French administration, is obtained not so whole and unlimited, but with the provision that it lapses after a term of twenty years after the death of the Author.
By Decree of the King, who was at that time Sovereign of the United Netherlands, from 24th January 1814, this provision is abrogated again, in fact, after the reservation of the right of Property to every Author and Printer has been deemed necessary, in the objectives of this Decree, specified as one of the objectives of the Official Publication of 3 June 1803, and in the spirit of the former state of affairs, subsequently is enacted in art. 6 of this Decree: anyone, who publishes an original work,
Chapter 1 Page 8
(7)
be it all at once, be it in volumes or parts, of which he lawfully owns the copyright as author or otherwise, obtains hereby, for himself and his heirs, the exclusive right to publish etc. this work, of which seemingly must to be drawn the legal outcome that the vested copyright, since the announcement of this Decree, until the entry into force of the Act of 25th January 1817, remains the property of the owner thereof, and is not lost by any course of time.
As concerns our already stated opinion regarding the question presented at the Case-position, and relating to the latter Act: which rests on the following grounds:
Firstly, it is apparent from the words of the third article of the Act, that in it is only spoken of the copyright that was set out in the two previous articles: it is beyond a doubt that the rights previously obtained by Author or owners of Literary and artistic works, derives its force, not from the Act of 25th January 1817, but from the previously existing regulations thereon, and thus should be judged accordingly; and that thus that copyright, which by this Act is enacted and amended for the future, and to which thus are applicable the terms and provisions present in Article 3 of the new Act, is something entirely different than that from which the owners of earlier published work derive their rights.
Chapter 1 Page 9
(8)
Secondly, it is a generally accepted, fundamental rule of Act that Acts only decide for the future, and with regard to the past do not apply retroactively: in the Roman Act, which is still valid as ratio scripta in the civilized world, and among others, in the L. 7. Cod. de legibus, was already said: leges futuris certum est dare formam negotiis, non ad facta praeterita revocari; and the as yet, in this Kingdom, existing legislation, has explicitly accepted this principle in the second article of the Civil Code.
While finally all Legal Experts, who have dealt with the so-called transitory Act, uniformly teach that with no newer Acts, rights, which were once lawfully obtained, can be appropriated or restricted.
It is beyond a doubt that the copyright on Literary and artistic works, which existed and was obtained before the establishing of the Act of 25th January 1817, under previously existing Acts in this respect, was a lawful and indisputable property of the owners thereof, as, among other, is apparent from the Decree of His Majesty as Sovereign of the Netherlands, laid down on 24th January 1814, which in art. 6 has laid down in so many words that: "Anyone who publishes an original work, of which he lawfully owns the copyright as author, or otherwise, hereby obtains, for himself and his heirs, the exclusive right to publish that Work, etc."
Chapter 1 Page 10
(9)
This vested right, this jus in re, that property, cannot be impeded by subsequent Acts, let alone be appropiated.
It is true that, in art. 7 of the Act of 25th January 1817, it is said "that also subject to the provisions of this Act are all new publications, or reprints of Literary and artistic works published after the same promulgation." Yet it is undeniable that the legislator by this Regulation could or would have understood no other than that anyone, who would in future publish a new edition or copy, in such publication or copy must comply with the formulaic provisions of the Act related thereto, and be subject to it.
And that this, and nothing else, can have been the spirit of the Legislators, is demonstrated:
Firstly: from the words of that article itself, in which is treated only of the publication and reprinting as such, and not of the right to it, that is, of the copyright:
Secondly: from the principle that is accepted by all Legal Experts concerning the interpretation of Acts, namely that the Act must be judged and developed from the Act itself; and when comparing this fundamental rule with the latter Decree of 24th January 1814, which has not been abolished, is found in the 13th Article thereof, almost in the same terms, the same provision as in the 7th Article of the Act of 25th January 1817, while there could have been no doubt, at least, about the objective of the Legislators,
Chapter 1 Page 11
(10)
regarding previously published Literary and artistic works; forasmuch that objective is expressly demonstrated in the Decree itself; and at the time was absolutely necessary, by virtue of changes introduced in the French legislation concerning this, which by the Act of 25 January 1817 (as the aforesaid Decree of 24 January 1814 had provided all these rights) would have been entirely useless.
Thirdly: even if the interpretation of the 7th Article of the Act of 25th January 1817, hereby accepted by us, did not result from the words thereof, and even though these words of a more uncertain meaning, even then would that interpretation, above all others, be preferred, because thereby is not given retrospective effect to the Act itself, against its nature, and contrary to the principle of justice, as a consequence of which once lawfully acquired rights and property would be restricted or appropriated.
One can surely presuppose that the legislator, with the Act of 25 January 1817, intended to lay down rules, as regards such formalities, as he desires, that would be kept in mind when publishing or reprinting earlier published Literary and artistic works, after the enactment of this Act, but by no means that he also desired to restrict or appropriate once lawfully acquired copyright: if this would have been the objective thereof, (which we deem impossible for the reasons provided,) he ought
Chapter 1 Page 12
(11)
to have done so by an explicit and clear regulation, such as was not present in the Act of 25th January 1817.
Finally, it is the opinion of the undersigned, in any case in accordance with those principles of equity and justice that the legislator in the laying down, and the legal scholar in the interpretation, of an Act ought to never lose sight of.
After all, anyone who obtains a copyright after the Act of 25 January 1817, be it as author, be it as seller thereof, knows, or at least could know that, after the lapsing of twenty years after the Author's death, that right will cease to exist: this may unfavourably affect the ownership or value of Literary and artistic works: the Act exists and is known to everyone: it may oppress, but it oppresses all the stakeholders equally, and is therefore taken to be just from the latter point of view.
But if one would desire to retroactively apply the third article of the Act of 25 January 1817 to the previously acquired copyrights, one must also assign the legislator an unjust objective; because, in this case, how cheated would those feel, who, before the enactment of the Act, securely relying on former regulations -- regulations which reserved the copyright as vested property indefinitely and forever -- had bought any copyright of Literary Works or Artworks, whose Authors had been deceased for more than twenty years, or those Authors sooner or later from its heirs or
Chapter 1 Page 13
(12)
assignees: how deceived, we say, would such people feel, when they saw themselves deprived of that Lawfully acquired right, without any fault on their part, by an arbitrary legal provision, and their lawfully property destroyed, by one pen stroke as it were?
Thus (salvo meliori) advised within Amsterdam, 31th March 1817.
(Has been signed:)
J. van der LINDEN.
M.C. van HALL.
N. SINDERAM.
S.AE. VERBURG.
F.A. van HALL.
Translation by: Miluska Kooij