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Monday, 2 January 1893. No. 6274.

WEEKLY PAPER ON LAW.
LEGAL NEWS- And ADVERTISEMENT JOURNAL.

TWENTY-FIFTH EDITION. JUS ET VERITAS.

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SUPREME COURT OF THE NETHERLANDS

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Chamber of Criminal Cases

Hearing of 21st November 1892.

President, F.B. Coninck Liefsting, Master of Law.

Justices, Masters of Law: A.A. de Pinto, A.J. Clant van der Mijll, A.P.Th. Eyssell, B.H.M. Hanlo, P. van Bemmelen and S.M.S. de Ranitz.

The claim that copyright could exist only for those writings which include a literary thought finds no support in the Act of 28 June 1881 (Bulletin of Acts, Orders and Decrees No. 124).
Art. 1 of that law recognizes copyright for each writing, also for such a writing that contains nothing more than that which is to be regarded as town news, even if that alleged news could be considered as already known to a part of the public.
The decision on the question of whether a notice in a newspaper is or is not to be regarded as a citation, referred to in art. 7 of that Act, can not be reversed on appeal.
For the applicability of Art. 349bis Penal Code is not demanded that the perpetrator acts from the desire for undue pursuit of gain or premeditation to injure.

G.H.S., 81 years old, administrator of the Leyden Daily, born in Leiden, residing in Zoeterwoude, is appellant in cassation against a judgment of the Court of Justice in the Hague of 5 May 1892, whereby, with the reversal of a verdict of the District Court in The Hague of 29 Febr. 1892, the appellant has been declared guilty of willful infringement of another's copyright, and at that point, with the application of the Articles 349 bis, 349 quater and 23 Penal Code, the Articles 3 and 10 in relation to Art. 7, first paragraph, of the Act of 28 June 1881 (Bulletin of Acts, Orders and Decrees No. 124) and the Articles 214, 215 and 239 Code of Criminal Procedure, has been sentenced to a fine of NLG 25, with an alternative detention of five days, and ordered to pay the costs of the two instances, also recoverable by imprisonment of at most 1 day.

After had been heard the report of justice CLANT VAN DER MIJLL, and the counsel for the appellant, B. M. VLIELANDER HEIN, Master of Law, had explained the provision further in the plea, Advocate-General GREGORY has advised the following:

Your Right Honourable Lords President and Justices! As a ground of appeal is proposed in the plea: Infringement and misapplication of Articles. 1, 2 and 7 of the Law of 28 June 1881 (Bulletin of Acts, Orders and Decrees No. 124) and art. 349bis Penal Code: because a festival program or festival guide holds no literary thought, but merely alleges to contain town news, and on which notices the Court did not even positively decide that they were "news", is not a writing for which copyright can be obtained; Furthermore, because the Court on the basis of incorrect arguments denies the prosecuted newspaper notice the nature of lawful citation or abstract for announcement, and both here, as in its decision regarding the intent, overlooks that it mainly comes to the desire for undue pursuit of gain." As may be seen, the argument is made up of two parts, while each of those parts contains more than one allegation.
In the 1st part is claimed, in the first place, that a festival program or festival guide, which is at issue here, expresses no literary thought, and there can be obtained no copyright for such a writing. If the expression of a literary thought was a requirement for the existence of the copyright, simple notices should be denied that right. And yet it is crystal clear from Art. 7, 2nd para., that those notices also fall under the protection of the Act. One has therefore failed to mention an article, in which the so-called criterion of literary thought is indicated. And however much weight they may have attached to the expression "literary works" in the Explanatory Memorandum (1), firstly it is not ascertained that the Government had in mind a limited meaning, which the honorable pleader referred to, and furthermore thereby could not, in any case, be negated the power of the word "writings" (Art. 1), in its apparently abolutely common meaning. See also J. van de Kasteele, Master of Law, "Copyright in the Netherlands." - Leiden, 1885, p. 61, who holds for correct "a very broad interpretation of the article", and in whose feelings "any writings, whether or not the ideas in it, or the content that it contains, are prominent, (will) fall under the provisions of our law." However, I think to need to go further than this writer, and also place under the law those writings, which lack any thought. Because the law does not distinguish and speaks only of "writings", should also be counted as that any programs of festivities, lists of raffles held, and all other announcements, of whatever nature. And therefore I cannot allign myself with what is argued in the second place in the 1st part of the argument. The honorable pleader, perhaps feeling the force

(1) Annex to the Proceedings of the Lower Chamber of the States-General 1876/77, 202 par. 2.

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of the argument drawn from the 2nd paragraph of Art. 7, in which is spoken of notices, subordinates in his plea that the announcements in any case have to contain news in order to fall under the protection of the law. My answer is once again that in art. 7, para. 2, mention is made not of news, but very generally of notices. Furthermore, the concept of "news" is very relative. What may have been long known in detail about the upcoming festivities to the inhabitants of a municipality, for others living elsewhere, to whom the gazette is sent from that municipality, is indeed "news". Besides, it is not always "le charme de l'inconnu" which makes an notice important. E.g. with a recent murder or with prevalent diseases, such as cholera, about which all kinds of notices were announced in the newspapers during a few days, the newspaper publisher can render a service to many, who oft lack the time to read, by reprinting all those notices chronologically.
As regards the 2nd part of the argument, it is firstly claimed that the Court, on false grounds, denies the persecuted daily the nature of lawful citation or abstract for announcement. I should think that one is dealing here with a factual decision, which must be respected by the court on appeal. But in addition, in my opinion, it is hard to imigine a lawful citation when, as here, is printed by far the largest part of the festival program, and that in a daily or newspaper, which of course mostly aims at keeping its readers informed of whatever important events occur in the municipality, rather than to give a detailed entry on the contents of such a writing. I add to this that which the government said in her Explanatory Memoradum to art. 18 of the Act of 28 June 1881 (Bulletin of Acts, Orders and Decrees No. 124.) (1): "A certain amount of freedom of decicion continues to be ensured to the court. It assesses for each case, whether it has before it a legitimate overview or abstract of work, or an independent work, or an unlawful work, wherein the modifications, extensions and abridgings of the original document only serve to cover the crime committed". And therefore it is not relevant whether already in the conclusion of the so-called announcement is referred to the "Festival guide", for that reference could have been given precisely to escape prosecution.

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I believe the judgment is entirely correct, and have therefore the honour to plead for the dismissal of the appeal, and to order the appellant to pay the costs thereof.

The Supreme Court etc.,
In view of the ground of appeal, proposed in the plea:
Infringement and misapplication of Articles 1, 2 and 7 of the Act of 28 June 1881 (Bulletin of Acts, Orders and Decrees No. 124) and art. 349bis Penal Code, because a festival program or festival guide holds no literary thought, but merely alleges to contain town news, and on which notices the Court did not even positively decide that they were "news", is not a writing for which copyright can be obtained; Furthermore, because the Court on the basis of incorrect arguments denies the prosecuted newspaper the nature of lawful citation or abstract for announcement, and both here, as in its decision regarding the intent, overlooks that it mainly comes to the desire for undue pursuit of gain;
Considering that pursuant to the contested judgment is established factually:
1. That, on 28 Sept. 1891, a printed work entitled "Remembrance of the Liberation of Leiden. Festival guide. Saturday 3 Oct. 1891," has been published and distributed in Leiden;
2. That this work was printed there by E. IJ., and that he had guaranteed himself of the copyright of that work in the manner set out by law, which had been published in print without mention of the name of the author or publisher, but only of the printer;
3. That the appellant, however much aware of this proviso of copyright, in the Leyden Daily of 30 Sept. 1891, at which paper he was responsible for the issuance and administration at the time, has let an notice be placed wherein, with the exception of some other announcements, which the Court deemed to be of lesser importance, the contents of the festival guide was copied, while at the conclusion of that notice was referred to the festival guide;
4. That the number of the Leyden Daily referred to has been distributed in the usual manner for that paper;
Considering that the Court's decision, that the appellant had willfully infringed the copyright of another by the proven action, in the ground for cassation is contested on three kinds of grounds;
Considering that the first ground, that a festival program or festival guide is not a writing for which copyright can be obtained, because it holds no literary thought, but merely alleges to contain town news, on which notices the Court did not even positively decide that they were "news",
Considering in this respect, that the claim as if copyright could exist only for those writings which contain a literary thought, finds no support in the Act of 28 June 1881 (Bulletin of Acts, Orders and Decrees No. 124.), whereby the copyright is regulated;
That, however, art. 1 does not distinguish between the nature of the writings, and thus recognizes copyright for each text, therefore

also for such a text that contains nothing other than what, in the ground, is called purely town news or is published as town news, even if the alleged news could be considered to already be known to the public;
This is confirmed by the provisions laid down in the second paragraph of Art. 7, in which the freedom to further publish in print notices or essays from newspapers and magazines, provided the source is mentioned, is given in no other way than under the condition that the copyright is not reserved in the manner set out by law;
That the Explanatory Memorandum, which accompanied the bill of 1877, which was relied on in the plea, contains nothing that could lead to another view;
That yet, in para. 2 of that memorandum, is said that "the bill regulates copyright, namely the rights of authors of literary works", but that to this is immediately added: "in addition to those works, which, very closely related to the former, likewise are part of the book trade. Excluded are the products of painting and sculpture";
That therefore in that sentence are not contrasted the writings of men of letters and those of another nature, but all that which constitutes a subject of the book trade is contrasted against the products of visual art, the last of which would fall outside the proposed regulation, while to the former, without limitation, that regulation would apply;
that the first of the grounds raised for the argument is unlikely;
Considering that the second of these grounds lies in that the Court on the basis of incorrect arguments denies the prosecuted newspaper the nature of lawful citation or abstract for announcement;
Considering to that effect that, according to Art. 7 of the Act, copyright of works published in print does not preclude that therefrom citations are included in other works for announcement or review;
that the Court has dismissed the reliance on this art. on the ground that "the content of the accussed notice, an abstract of the festival guide, inter alia containing the names the participants in the procession, and the route that the parade will follow, exceeds the scope citations have";
Considering that it was noted in the plea that the law does not limit the scope that citations may have, but precisely because those limits may not be set in general rules and are not set, the court, in each individual case, by comparing the writings, and thus by a factual consideration, will have to decide whether another's copyright has been infringed upon by the announcement; that therefore the Court of Justice's decision on this issue cannot be reversed on appeal;
Considering that, in the last place, it has been argued, to support the ground for cassation, that the Court has overlooked both in its decision regarding the scope that citations may have, as in that regarding the premeditation, that it mainly comes to the desire for undue pursuit of gain;
Considering that in fact has been decided by the Court of Justice that "from the circumstances under which the copying of the contested notice of the Festival guide took place, as evidenced by the statements of the accused and the statements of the witness V. d. D., follows the intent of the accused to willfully infringe the copyright of E. IJ", while the statements and declarations referred to, according to the judgment, mean that of the accused, that he, when he had the notice placed in the Leyden Daily, was aware of the copyright obtained for the Festival guide by another, and that of the witness, that he, before the placement, had drawn the attention of the accused to the warning placed at the heading of the Festival guide, that copying would be prosecuted;
Considering that in this ground it may be claimed that for the application of Art. 349bis Penal Code, it would also be a requirement that the perpetrator acted with the desire for undue pursuit of gain or, as it is expressed in the plea, with intent to injure, but that this assertion is incorrect, because the art. Speaks not of such an intent, and the word deliberately has no other meaning in that art. than anywhere else in the Code;
That the art. therefore with that expression sets no other requirement than that the perpetrator committed the act intentionally, whereby another's right was infringed upon;Considering that the ground for cassation is therefore unfounded in all its parts;
Given art. 370 Penal Code;
Dismisses the appeal;
Orders the accused to pay the costs incurred therein.

(1) Cf. SMIDT, 2nd edition 19th issue p. 29.



Translation by: Miluska Kooij