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28 translated pages

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REMARKS

ON

LITERARY PROPERTY

IN RESPONSE

TO THE ESSAY PUBLISHED IN THE MADRID GAZETTE

ON 31 JULY AND 1 AUGUST OF THIS YEAR

      

      

VALENCIA

IMPRENTA DE J. FERRER DE ORGA.

_________________

1838.

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      The editors of Gazeta de Madrid praised the Diccio-
      nario de jurisprudencia of Mr. Joaquín Escriche, and an example
      of merit, they copied numbers 1352 and 1353 in full of
      the author’s article. It seems to me that their
      choice was not very accurate (unless they take all the cloth from
      the same roll,which I have neither had the time nor humour to examine).
      Besides his declamatory and pedantic style, it has no method whatsoever
      and jumps from one thing to another without any connection or plan.
      The worst thing is that it includes several untruths as I am going to
      demonstrate. Hence, this fixes certain ideas on literary
      property rights, which is something our [Spanish] Parliament
      should not delay in attending to.
                        ___________
      
                  THE PECULIAR NATURE OF LITERARY PROPERTY
      
      Undoubtedly the author of any work owns it,
      unless he concedes its rights to someone else, and this property appears
      with certain privileged distinctions based on the nobility of
      its origin and illustriousness of its object. When the ownership of
      personal property or roots are judged in so many ways in every nation,
      and more so in some others than in ours,
      and when there are jurists who support that neither the author
      should be granted exclusive powers to print his written documents, which is
      a paradox for me; we must examine what has influenced this substantial,
      and apparently unjust, difference.
      
      These are three main reasons: 1. The author works more for profit,
      and the enlightenment of his fellow beings, and neither
      

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      one thing nor the other would be completely achieved, if he himself and his
      inheritors could re-print the book because they do not even have the means
      to reproduce it and sell it to all the other speculators.
      Neither is it easy to publish in more than one nation. 2. This right
      is not transmissible for a large number of years, as it cannot
      be easily divided. In very few years time, it would stumble over thirty
      or forty heirs of the inheritors, some would not have the
      powers to reprint it, others would completely reject it,
      and others would not want it unless under certain conditions. And
       even if it were feasible for them to agree on its enforcement, they would
      retract from doing so as they would have to entrust commissioning it to
      a great number of foreign hands,and there would be
      difficulties when dividing the profit or the losses;
      the result would be that the work would never come to light
      again and the public would not have this knowledge that would be very
      useful and perhaps necessary for them. For the same reason,
      the means for divulging written works have always been made available;
      and this is how every country allows translations into other languages
      of any work in view of the author, without him being able to protest
      against this. This is very much more simple than summarizing or
      commenting on the written document. 3. Ownership of a book cannot
      leave the nation where it was written; wanting to establish an
      international right that is common to everyone, is a delirium
      that some less reflexive heads among us have given thought to.
      They soon had to drop it because it was impracticable.
      practicable. In effect, apart from the embarrassments that would be caused
      in the event of war and the damages that the industry and
      commerce of every country would sustain in times of peace, would it
      be possible to establish a similar right? Is there any author
      who has the means at hand for reproducing and translating
      their original work in every nation at the same time? And if
      he was unable to verify this, and to say the least his inheritors
      and their heirs, multiplied by generation, both in number and diversity
      of their ideas and interests? Is it allowed, according to Common Law rules,
      
      

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      to force them to do something they cannot or do not want to do?
      How long should elapse to see their rights expire? Under a system
      which in all justice should extend to machines and inventions of
      any kind, a barrier would soon be built between nations that was even
      more impenetrable than the Wall of China. There would be few who today
       were not very close to the infancy of enlightenment, if by chance
      they had adopted it. It is therefore evident that this
      property cannot succumb to the same fate, have the same guarantees,
      or be subject to the same rules as other properties. Consequently,
      the thesis that Mr. Escriche obstinately supports is false.
            
                        ________________
            
            LEGISLATIVE BASES ON THIS POINT
            
      This explains why almost every country, where there are laws or
      practices ensuring literary property rights, has agreed to
      establish them based on the following axioms, with some very slight
      variations:
            
      1. The author has ownership throughout his lifetime.
      2. His inheritors only has this for a certain and short number of years.
      If there is any exception, it is in favour of his widow and children.
      3. Once the immediate inheritors have deceased, the work becomes part of
      the public domain.
      4. Anyone can publish it when translated into another language in the
      same country in which the author brought it to light.
      5. Ownership of a written document (both its title and its content)
      is only within the nation in which it was printed for the first time,
      whenever all the requirements prescribed by law have been fulfilled.
      6. The author or owner of the first edition produced in a foreign
      country cannot claim the property rights as his.

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      The Gramática by the Frenchman Chantreau, whose ownership is
      based in Spain, has been re-printed several times in France during
      the author’s lifetime and novels by the Anglo-American Cooper, who
      published them in Paris, have been repeated in the United States of North
      America without his consent. Sir Walter Scott did not begin to
      print his Novels and the Life of Napoleon in Paris or on New
      York knowing that he could not obtain exclusive rights in
      England; but before publishing them, he signed a contract with
      some booksellers in France, America and Russia, advancing proof
      that they could verify reprinting or translating them, at their convenience,
      two or three months before other speculators.
      
      This is the summary of what was done in former times and in the new
      continent; it is notable to see that both address practices
      rather than laws, which are very few in France.
                        ________________
            
            WHAT APPEARS IN OUR USES AND LAWS
            
      We still have even less, because the need of prior censorship,
      the barriers that the press has always suffered, the
      inquisitorial surveillance with which they are watched, and the
      lack of incentives for speculations of this kind, excused us from
      the laws indicating the limitations of literary property rights
      and which punished any transgressors. However, let us examine
      what positive facts and the laws compiled in the eighth book of
      Novísima provide.
      
      Cervantes published the first part of his immortal Don Quixote
      (one of the few works that would have produced profit for the
      successors, if the literary property rights could have been transferred
      like the others). In 1604, the kingdoms of Castile granted him a ten-year
      privilege, and then those for Aragon and Portugal in
      1605. Without any doubt, the author did not have the slightest
      involvement in reprinting the first part

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      in Valencia that same year, and of the second in 1616, because
      laws 3, 4, and 13 of tit. 16, lib. VII of the Novísima were
      different from those in the kingdoms of Aragon, Valencia, and
      Catalonia. There is no record that Cervantes had a privilege other
      than for Castile, Aragon and Portugal. Two editions of the first part,
      one in Milan in 1610 and another in Brussels in 1611, and the second
      part in Brussels in 1616, were reprinted without his consent,
      even though both cities were under the rule of the Spanish crown.
      They could have claimed less for reprinting his work in Navarre
      because up until 1783, it was not ordered (law 30 of tit. 16) that
      if the book was printed or reprinted in Castile or Aragon under
      an exclusive privilege, the Council of Navarre would not allow it
      to be reprinted in that kingdom to the detriment to the author or
      his inheritors. Cervantes died in 1616, and what had to happen
      did happen. The inheritors were not careful or did not have the means
      suceda, de que los herederos no se cuidaron ó no tuvieron medios
      to re-print Don Quixote, because they did not apply
      for permission to do so.In 1637, permission was granted to Pedro Coello,
      a book merchant, who was the first to publish both parts at the
      same printers and in a uniform size. This is what happened
      in former times.
      
      In the times of Charles III, there was a first mention of
      the ownership of written documents, and law 24 of tit. 16, lib. VIII
      of the Novísima prohibited granting anyone an exclusive privilege
      other than to the author. Law 25 prescribed that the privilege should
      continue for the inheritors if they requested it. This privilege, far
      from being justthe recognition of a right, as Mr. Escriche
      assures, was the basic statement of such a right, so the author
      had to go to renew it when it expired, which was always every
      ten years; and law 26, which clarified the two previous ones, stated
      in Art. 3 that, with regard to the author and to his inheritors, if
      no extension was requested within one year, the licence would be
      granted to whoever applied for it; if the author did not use it

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      within the timeframe that the Council indicated, the work would
      be left at the disposal of the Government; and Art. 4 stated that
      the inheritors had to verify reprinting it within thelimited
      term that was set, otherwise they would lose the sole right.
      Consequently, the right that authors and their inheritors had to
      print the works how and when they wished was not as extensive and
      absolute as Mr. Escriche wanted to imply. They were very limited,
      as we have just seen, by the said Articles in law 26; neither
      would it be of good logic to deduce that only an exclusive
      privilege was granted. It mattered very little that instead of
      this privilege only a simple printing authorisation
      was given to others because, by granting it to whoever applied for
      it, there could be no more effective way of destroying the
      exclusive rights of authors. In effect, law 26, which is the last
      of its kind among the Novísima, tends to help studying the sciences,
      literature and the arts, and to favour printers and booksellers.
      Therefore, the public cause lies in fomenting an art and
      a trade that contributes to general culture, and to divulging
      science and useful knowledge, for use of the exact
      expressions at the end of this law.
      
      Twenty or thirty years after having been promulgated,
      it became obsolete. Not only have we seen that after
      the death of Mr. Tomas de Iriarte and Mr. Félix Maria
      Samaniego, and even when their heirs were still alive,
      permission was granted to whoever applied for re-
      printing their       Fábulas ; but the comedies of
      Moratín, El delincuente honesto by Jovellános, and some other
      books were re-printed in Spain with the required licences during
      the authors’ lifetime. As there is not even a law of the 67 that fill
      titles, 15, 16, 17 and 18 of lib. VIII of the Novísima Recopilación,
      that has not expired, equally the Autos acordados
      (decrees) that referred to them, it is essential for us to refer to the very few
      ones that our Spanish Parliament or our kings have recently promulgated.
      
      Neither the decree of 22 October 1820 nor the additional one
      

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      of 12 February 1822, reinstated by His Majesty on 17
      August 1836, refer to literary property rights.
      As what was expressly granted was not restored by the Spanish
      Parliament on 22 July 1823, that His Majesty sanctioned on
      5 August that same year, I will only mention that the three
      first articles should be read so they are in keeping with
      the singular nature of the ownership of writings;
      many other chapters are missing from this law and it should
      be understood from article nine concerning translations
      that the custom used in France that many uphold, if there is
      a discrepancy, however small it might be, for every ten lines
      of the first translation, the translation is to be taken as different.
      Intelligent people know how easy it is to sometimes use a synonym,
      and add or remove something, without this being called a
      new work.Art. 18 of this decree was also
       devoted to the principle recognized by every nations, that “works
      by Spanish writers printed abroad that were of common property,
      or if they were owned by someone and had been printed there with
      their consent could be brought into and sold in Spain, paying the relevant
      rights or those for “customs duty”. This is the only thing on
      this matter that can be said in accordance with the right
      principles of Economy. It was still different from theme art. 603
      of the 1822 Penal Code, which had already reduced death sentences,
      forfeiting belongings, exile or prison to a fine for 15 to 30
      duros [Spanish five-peseta coin].
      
      The only decree establishing literary property rights in a clear
      and fairer way, although in a tiny manner, is that of HM the Queen
      on 4 January 1834 in its fourth title. The royal order of 5
      May 1837 only refers to the benefit authors or translators
      of dramas should derive from their performance, and not to their right
      to print and re-print them, which is the point we are dealing
      with right now. After reading that Royal Decree, it seems to be very
      clear that all its regulations concern books printed in the

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      Spanish dominions: almost none would be applicable to other (territories)
       especially those under the third title dealing with obligations
      of authors, printers and engravers, and of their responsibility.
      The fourth title begins by saying that "authors of original
      works", implying that these works must have been printed in
      accordance with the articles mentioned above, and consequently in Spain. It was
      not even required to ask for a response to this law, since it is obvious
      that no nation has nothing to say to what is done beyond it,
      except in only a few and specific cases. Here neither we recognise as
      an inventor of a machine the one who enjoys such a patent in
      England, nor (we consider) the author of a book the one
      published in France. Anyone can introduce a machine into Spain that
      is protected by English laws, and re-print books that the
      author or his cessionary own in France. Let us suppose that
      Mr. Amoros is the owner in that country of an invention
      for Gymnastic exercises; Who can prevent the first
      Spaniard who so wishes to bring it here and put it on our soil?
      Who has never dreamt that he could not reproduce many works
      and translations that only a few years ago we re-printed here
      by Marchena, Sicilia and other Spaniards? How could it be disputed
      the right to the printer of Palma Villalonga by which he re-printed
      Martinez de la Rosa' Poética?
      
      Desiring to give the same status to the prints made
      by the Spanish abroad to our prints would be to claim that they are
      subject to a penalty (usurpation), when they re-print there some books
      the ownership of which is located in Spain, this should be punished as
      an infringement of Art. 2 of the decree of 22 October 1820,
      those born in these kingdoms who publish abroad
      any work about the Holy Scriptures and on the dogmas of our holy
      religion, without the prior licence of the Ordinary. When we reflect on
      the same issue by saying: Our laws secure the ownership
      of their writings to the authors during their lifetime: I am an author-
      of such a book published in Paris; then only I can re-print it in Spain;

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      this is as good reasoning as the following: Our laws
      impose a death penalty on murderers: so-and-so is because he
      maliciously killed his travel companion in Turkey; then he must suffer
      his last torture here. One is neither the author or the other the assassin
      that our laws suppose and claim. Mr. Escriche himself has
      inadvertently lost the true doctrine and the one applicable
      on this point, when he says halfway through his article that
      que as the laws that in every nation ensure authors the-
      ownership of their works can only be enforceable in their own territory,
      there is, in fact, reciprocal freedom between nations for re-printing
      foreign books that are published in other nations. Earlier on
      he had said that not only national authors, but also foreigners
      who print their works in Spain, enjoy property rights here,
      since the law neither excludes them, nor even limits everyone’s overall
      right to make the fruit of their labour their own.In fact,
      neither our laws nor the foreign ones distinguish between ownership
      rights acquired by them to publish a work by reference to whether
      they are a national, resident foreigner, or a transient. Therefore,
      what is established in both parts, copied from Mr. Escriche's essay,
      is all that can be said on the matter.
      
      It is incredible that he, who has laid down these principles,
      deflects from them based on an argument that appears to be right
      but is no more than a paralogism. Property rights,
      according to Mr. Escriche, begin with the work, grow with it,
      and accompany whenever the author started forming it,
      because everyone is the owner of the products of their industry … The laws
      that protect and guarantee literary property in general are as
      applicable to manuscripts as to printed specimens and for sale;
      so therefore those who, without permission from the author or the owner,
      give the printers a manuscript that has come into their hands,
      will commit an act against literary property rights, and will incur in
      the same penalties as those who re-print an already published work.As
      these are the only grounds to suggest that no one can re-print the works
      by a Spaniard here who has published it abroad, and that

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      this crime is a true theft, we should clarify the play on words
      surrounding such reasoning and point out the absurd consequences
      that can be derived from it.
      
      Whoever steals a manuscript, commits the crime of misappropriating
      someone else’s treasure, whether this is gold, a belonging made of
      silver or clay, depending on the great or small merit of the work,
      and more even, depending on the greater or smaller use that its
      publication promises. By the same rule, he is forced to return it to the owner
      and pay him indemnity for the damages that its use might have
      caused him, in the same way as if he had taken an animal, machine
      or brig away from him that provided him with some kind of benefit.
      However, he is not an usurper of what we call literary property
      as this does not start to exist until it is a legally printed and published
      work. The laws that protect it always refer to printed books
      and those printed under such and such conditions; and even the
      penalties imposed on the infringers tend to be based on the sale price
      of the first edition. Art. 1 of the decree of the Convention of 19 July
      1793 declaring authors’ rights, establishes that they have the exclusive
      right to sell, authorise selling and distribute their works in the
      domains of the Republic. Could this be done with a
      manuscript? The regulation for printers and booksellers, issued by Napo-
      leon on 5 February 1810, when referring to the same thing, says in
      artic. 40: Authors, not only nationals but also foreign authors, of any
      printed or engraved work may sell their rights, etc. In the
      same way, articles 30 and 32 of His Majesty’s decree of 1834
      prohibit anyone from re-printing the works for which
      someone else is the owner; and only the inattentive eyes of Mr. Escriche
      can see a presumption where a principle lies, namely that the work
      has to be published so that the five articles of title four can be applied.
      Laws cannot limit ownership of a manuscript to a certain number of years,
      whether it is

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      in the hands of the author, or anyone else who is legitimately
      entitled to it; but as soon as it becomes printed matter,
      the law of 9 July 1778 (26 of tit. 16) told authors and their
      inheritors: Come to renew the ten-year privilege that
      the laws of 1763 and 64 give you, and if you neither do this, nor
      reproduce the work within the term you are told, I will permit whoever first
      requests to re-print it; and that of 4 January 1834 which secures
      the ownership to the author for the whole of his lifetime, and to the inheritors
      for only ten years, ordering that the work would become then public domain.
      Such is the essential difference established by our laws between the literary
      ownership of a printed book and the absolute domain with which a manuscript
      is owned. Whoever lends the manuscript, for example, is doing the same as if he
      wrote a letter to someone without authorizing him to publicize it;
      and if an individual (these are Mr. Escriche’s precise words)
      were to publish confidential letters that were
      addressed to him personally, or that had come into his hands,...
      a publication of this kind would not be considered a crime against literary
      property rights, but a breach of trust or as an infringement of the tacit
      contract implied by any private correspondence.
      
      Let us now see the consequences deriving from this if supposedly the
      author enjoys literary property rights from the time he starts to create
      the work.
      
      First. The writer would not have such a privilege for being German,
      English or Spanish, which seems to be the central point of all
      Mr. Escriche’s arguments, but for having started, continued or concluded
      his work in this or that nation. Above all, we should determine if we are
      to abide by the birth, youth or adulthood of the manuscript,
      or if it is indispensable that it has followed the whole career
      until its conclusion in the same country. In whatever way this is
      established, it would not be easier for Mr. Escriche to prove that
      he had worked in full or in part on his Diccionario in Spain,

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      than to a Frenchman visiting the Peninsula before publishing a book
      in Paris, which was the fruit of his wakes on the river banks of the
      Manzanares or the Guadalquivir. Mr. Escriche can be sure
      that nowhere will such legislation be recognized; and however clear
      the proof might be that he had only written his work in Paris,
      it would be of little use to establish his literary property rights there,
      if he had not published it in the French territory.
      
      Second. If the author begins to enjoy the privileges and rights
      attached to literary property since he started his work, those who inherit
      it before is printed, will have to be content with the limited and short
      ten-year possession that the law grants to the inheritors of who already
      enjoyed that property. However, everyone recognizes as rational
      the doctrine expressed by Mr. Escriche when he says:Whoever inherits or
      through another just title becomes the owner of a posthumous work,
      this is to say, a work that the author left in manuscript without having it
      printed, must have the same rights as the late author, and enjoy
      ownership rights throughout his lifetime; because by publishing it and
      extracting it from the oblivion it was in, puts him in the place of
      the author and acts in his stead with probably no little benefit
      to national literature.
      
      So unwise are the consequences extracted from the erroneous principle
      that the laws on literary property are applicable to writings
      as soon as the author puts his hand to them; consequences that Mr.
      Escriche could have avoided if he had never left the circle which he himself
      outlined in this passage: Under our laws, literary works, either manuscript or
      printed works, are covered by the number of private belongings that anybody can
      have except their owners, subject to special modifications that the different
      nature of these belongings require. Our laws therefore, taking into account the
      different nature of a manuscript and of an already published book, protect the
      property of the first like other personal properties; and consequently whoever
      steals it,

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      has to return it and pay indemnity for the damages. For printed works,
      we have special laws in Spain but these neither have protected
      nor protect other than those published with permission from bishops,
      archbishops, the Holy Office, presidents of the Courts, Council,
      or judges of printers during the various times in which a preliminary
      licence was required; any publications coming from a printer whose owner
      had to abide by conditions and penalties indicated in title three of
      the decree of 4 January 1834, and those who had handed in two copies
      for the Library of the Spanish Parliament (that now do not have to be
      submitted) and one for the national library, and responsibility
      lay with the author or publisher and the printer in cases under title five of
      the decree of 22 October 1820. That is to say, our laws have never
      protected literary property here for those who published their
      works abroad and neither have they provided any kind of protection for
      manuscripts by Spanish authors because foreign nations are not within their
      reach.
                  _________
      
      
EMIGRANTS SHOULD NOT RECEIVE INDEMNITY FOR WORKS THEY PRINT
                  DURING THEIR EXPATRIATION
      
      
      As Mr. Escriche foresees that it is not easy to conceal the enlightened truths
      that anyone with common sense could see, and badly mixing personal business
      in a reflexive essay devoted to instruct, as a last resort he tries to excite
      readers’ compassion, by saying that whatever is wanted from other
      Spanish authors who publish works in foreign countries, there can be no
      doubt that those who were launched by political revolts also have ownership
      in their motherlands. They have found themselves in the sad need to beg
      for food and shelter from strangers because of the unjust tyrants of
      their homeland denied them. Surely he could have omitted the exclamations about
      his intention, mixed with some Latin flavoured gerunds,
      

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      because nobody ignores that by having to leave their country by force and
      unjustly, they should be indemnified for the damages they sustained for this
      very reason. Nevertheless, even by returning emigrants to wherever they
      should be under a rigorous scale, so they receive the salaries owed to them,
      and sactions that not everybody could obtain were required in order to give
      them other legitimate indemnities. Since literary property cannot be given
      an extension that does not have, things will stay as they are.
      There will be not be any variation to this state of affairs
      because these things should not be included in a legislation that could now
      be proclaimed.
      
      We should also find out whether emigrants have suffered advantages or
      disadvantages because of this, as they can only claim compensation but they
      argue for their benefits or the conveniences achieved by chance in
      other nations to be increased or doubled. On this point, Mr. Escriche provides
      some light by saying that a Spaniard might prefer to print a work abroad,
      whether to launch it there to be protected by foreign laws in order to prevent it
       from being reprinted, if it was first published in Spain, or for selling it in
      another country with whom (with which) Spain has severed their commercial
      relations. If, generally speaking, we add to these advantages those derived from
      the more beautiful and cheaper French editions compared to those produced on
      the Peninsula, we will infer that to emigrants who, for being there, have
      been able to establish property rights on their works in France,
      which they would not have been able to achieve if they also had it in Spain.
      According to what we have said above, a benefit that can hardly be promised
      has followed. And trying to increase this now with the concession of the
      same rights in their country, it is exactly the same as if Mr. Alcalá Galiano were to
      request the University of Madrid to bestow upon him a professorship equal
      to the one he worthily held at the University of London.
      In view of the limited leeway of this principle, it should not appear
      

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      to be completely ludicrous that, on his return to Spain in 1820, Mr.
      Tomas de Isturiz were to ask that he be given an amount equivalent to the
      huge amount he spent in that capital, because this was due to having
      emigrated.
      
      Our Government, well introduced in these truths, far from issuing a
      general order to every emigrant to bring to our domains the works they
      might have published abroad, it has found out which were useful to
      Spaniards,without offering for the time being sufficient incentive to
      reproduce them here. It has allowed the introduction of a certain number
      of copies under a moderate right, not as compensation
      for damages that they have not been able to recover for any title published abroad,
      but as a kind of remuneration for their sufferings and for the losses caused by
      leaving their motherland. Members of Parliament should be cautious to
      examine this matter from their true point of view if when they meet again,
      they are presented with a petition that was circulating in Madrid over the last few
      months gathering emigrants’ signatures who want the Spanish Parliament
      to declare that nobody except them could re-print in Spain whatever works
      had already been published abroad. This proves by itself that
      such a law, that Mr. Escriche thinks there is, has yet to be done.
      Moreover the said behaviour of the Government demonstrates that in Spain
      the rights that Spanish nationals hold in other nations are unrecognised.
      Let's imagine for a moment that our laws granted to Spaniards the
      universality of rights Mr. Escriche believes is just and convenient. Would this
      provide our industry with any advantage? Quite the contrary; without a navy
      for such trading, not being able to dispatch our manufactures to the markets
      in the New World as easily as when hardly any others were known, and
      overwhelmed by the disastrous consequences of three centuries of despotism
      and of an exterminating civil war, our neighbours will surpass us for many years
      

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      with cheaper and better paper, printing and binding, and even more with
      the means of transporting and dispatching the finished books. If to all these
      advantages, that are really in excess, our Government were to add the
      extraordinary one by which Spaniards could retain the rights here for whatever
      they printed abroad, it would not take long to only supply our printers
      with paper of local interest or for books with limited sales, because everyone
      would prefer to hold the property rights for the same work in two nations,
      instead of only in one.
      
      I have tried to argued against Mr. Escriche on this point with every
      entrenchment available, so he had no doubt about the erroneous doctrine
      he so passionately upholds, and that consequently he becomes convinced
      that anyone can or could re-print the Parisian edition of his Diccio-
      nario de legislacion, in Spain, although not the additions
      that enlarge the second one. And when someone does what the law does not prohibit,
      what our practices and those of the most civilised nations sanction,
      his action is lawful, and there is neither any prey, or
       rapacity, or piracy, nor theft, nor stealing,
      or anything like that. This is not the first occasion in which I have observed
      that Mr. Escriche is badly informed of what words mean,
      or he is not very scrupulous in confusing them. But as the reflections
      I could make about the conduct upheld in the business I allude
      would neither enlighten the public, nor belong to the matter,
      I shall leave them aside in order to continue going over other
      witticisms from La Gazeta.
      
                   ____________
      
      
      MR.. ESCRICHE’S NEW BLUNDERS AND MISTAKES
      
      Far from the truth at the bottom of the matter that I have proposed to
      clarify, he incurs in several inaccuracies and mistakes that I cannot let go by in
      

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      silence. I shall therefore try to explain them following the same disorder
      found in the never sufficiently pondered article Autor.
      
      1. Not only the 41 laws of tit. 16, lib. VII of the Novísima addresses
      earlier censorship and licences to print, the five of tit. 17 do so too.
      
      2. The decree of 17 August 1836 reinstated that of the Spanish
      Parliament of 22 October 1820 and the additional one of 12 February 1822;
      and according to Mr. Escriche’s way of saying it, it seems as if only the
      first one was reinstated.
      
      3. Without it being essential to further his intentions, Mr. Escriche
      insists with the greatest determination in upholding that the law of
      Philip III of 1610 (7 of tit. 16) referred to not allowing books printed
      in romance outside Castile to be introduced there, and not to prevent
      Castilians from printing their works outside the kingdom. This is
      absolutely false, either because the former was stated in the
      draconian law of Philip II of 1558 (3 of tit. 16 ) in the most rigorously
      manner; or because the preamble of the 7th and the decision agreed
      by the Council of 15 September of 1617 clearly stated the latter;
      or finally because the history of typography of that era evidenced it.
      At Ricardo del Campo’s (who is undoubtedly the Richard Fields, London
      printer), Cipriano de Valera had just produced his translation of the
      New Testament in 1596, the one he did of Instituciones de la re-
      ligion cristiana by Calvin in 1597, and the Dos Tratados, del Papa y
      de la Misa in 1599, and his Biblia in Amsterdam in 1602.
      In 1591, Antonio Pérez had threatened from Zaragoza that he would
      publish his rebuttals, and in fact, they were printed in Pau that same
      year. With the death of Philip II, Antonio Pérez began to hope that
      he would be allow to return to Spain; but the inquisitors hindered this
      with one hand, and with the other stored the materials they collected
      to really burn him alive, because beforehand it had only been as a statue.
      They also wanted no other Spanish title to escape from their claws
      

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      if it had been printed in other countries, should their bad luck brought them
      this way. This was the reason why they got Philip III to promulgate this Act,
      while having such direct part as in others from the same reign and from
      the predecessors.
      
      It was not necessary for Mr. Escriche to be so tiresome as he did to prove
      that this Act was completely and everywhere out of date since its very beginning. It
      would have been enough to consider that actions done in another nation
      were outside the scope of our laws. When you are far away from
      true principles, you sometimes waste a lot of time establishing
      what you could have demonstrated in the right way in few words.
      By doing that, he would have saved himself from developing a peculiar
      explanation of however much this law deprives of the nature, honours,
      dignities, and half of his belongings to those who printed some work abroad,
      and however much the decree agreed on 15 September 1617
      makes the licence granted by the Council invalid and worthless;
      not because of that should it be understood that property rights
      were removed from the author in Spain for such work. I shall now have
      to ask with Mr. Escriche: Would there be by any chance,
      anyone who believes that the same fact can simultaneously produce rights
      and penalties in favour and against the same person?. Nobody can
      improve their condition with a crime: nobody acquires rights or actions
      with malice.
      
      4. Most editions in romance that were printed outside Spain during
      the last half of the 16th century and at the beginning of the next one,
      came from presses in the Netherlands, Naples and the Duchy of Milan,
      which were subject to the same system of censorship and licences
      as ours, as at the time governors appointed by our kings headed these
      states. With such requirements, all books were published there
      and the Spanish ones were either reprinted from those coming from
       the Peninsula, or their authors publish them there because they
      were living there. The little amount of books printed in other places is almost
      limited to a few elementary treaties in our language published
      

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      in Paris, Geneva, Rome, Venice, Rouen, Lyon, etc.
      to Julian Medrano, César Oudin, Franciosini, Ambrosio de Sala-
      zar and various others since they used to teach it; to the reprinting
      of some of our short novels that occassionally accompanied a French
      or Italian translation for the use of their students and finally, to pro-
      ductions of the kind of those few mentioned by Valera and those by
      other Protestants, so that nobody dared introduce into Spain in the times
      of thebenign Philip II or in that of his son, in the same
       way , that no one dared introduce Cartas y Re-
      laciones by Antonio Pérez. Check out this brief but historic-
      bibliographical review of the Spanish books that were then published
      abroad, and compare it with the wrong impression that any of the following
      paragraphs from Mr. Escriche give. The
      proceedings, he says, and formalities required by law for
      printing were so awkward, and so rigorous and long the examination that
      had to be performed beforehand based on the contents of the writings,
      that there was hardly no one who, after such a long time and having exerted their
      patience, was able to obtain the competent authorisation from the Council to produce
      them; and therefore authors preferred to send and print their works
      abroad in order to bring them back, as they really did, by a thousand ways to the kingdom,
      where, without much difficulty they could circulate and sell them.
      The laws were circumvented in this way. Books were spread around that had
      not undergone the rigid and suspicious censorship rules,
      and ideas that Government and Inquisition had decided to eliminate
      were however propagated. After listening to such an absolute conclusion, it would seem
      that our presses were totally shut and that there was no author who did not
      go abroad. However, it is evident that of the few books that were printed without
      the same formalities used here that the Spanish authorities also allowed,
      there was hardly one, whose circulation in the Peninsula was convenient
      or possible to his author.
      
      5. I do not know which legal rule Mr. Escriche used to raise at least
      

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       the doubt of whether the restatement in 1836 of the decree of
      22 October 1820 has completely abolished that of 4 January 1834,
      and whether the same can be inferred by the simple fact that it is
      not mentioned in that of 5 May 1837. A law does not abolish
      another in the chapters that the later one does not include, and
      the one of 1820, reinstated in 1836, did not mention the subject of literary
      property rights, which totally covers title four of that of 1834. Even less
      should the lawmakers’ silence be considered enough, when the
      derogation should be as express and solemn as it was the legislation
      of the abolished law.
      
      6. It is inaccurate to say that the Royal Decree of 5 May 1837
      implies and proclaims the principle by which property rights not only
      protects printed works, but also (on) hand-written ones. It
      only refers to dramatic works, from which the author can extract
      something useful, even though they are hand-written, as the
      preacher does from his sermon and the professor from his lectures.
      Other hand-written works are indisputably owned by whoever holds
      them under lock of his desk drawer, but without earning any profit
      at all.
      
      7. Both paragraphs that deal with the possibility authors have to write
      about the same matter, are so subtle that they are of very little use,
      and conclude by solving any uncertainty in a way that is untrue. So that the
      second author of a work on logarithms, for example, can call it his,
      it is not neccesary that he had made the calculations without
      copying them from someone else (which would be seriously
      difficult to find out if there was a perfectly similar other
      one before), it would be however necessary to separate the plan
      and details from the other one, reducing, extending or adding
      something new to it, so that the learned would know that it was
      a different work, at least in the main part.– Anyone could challenge Mr. Escriche’s
      conclusion that dictionaries are defined as treaties that
      cannot be presented in two different ways.

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      8. There are three mistakes in the next paragraph, one is of little
      importance and the other two of vital importance. The first begins by saying
      that it has already been seen that two authors can compose their
      works under the same title . Mr. Escriche had not mention this issue
      before since he can only referred to the possibility that they can work
      on the same subject matter.
      
      One of the greatest mistakes is that that Mr. Escriche limits the property
      rights in titles to newspapers , and therefore all the arguments
      he adduces in their favour, are equally applicable to the rest of works. For
      this reason French Courts decided a short time ago in favour of Mr.
      Michaud, if I am not wrong, that he could not take another title for
      Biographie universellewhich he had given to his
      Dictionary; this judgment is based on the decision by the Cour of Cassation
      of 28 of the floral month of the year XII of the Republic, which is a
      precedent because in France it almost has the force of law.
      
      The second important mistake is where he deals with newspapers,
      and we can read: The writings already published are
      of the same nature as all other literary compositions,
      and consequently nobody can re-print or sell them without authorisation
      from their owners. Mr. Escriche uses a dark and ambiguous
      term such as writings already published, which he repeats twice,
      those typical in a newspaper, which some calleditorials; but neither
      these, nor those of news, taken from the private correspondence of the
      publisher or editors, are of the same nature as other intellectual
      productions since they show various issues that neither the legislator
      not the judge should lose sight of. Evening newspapers in France
      used to repeat the editorials published in the morning newspapers;
      and the only thing that was ordered a few years ago was that they
      could not be re-printed until the following day, since you do not have
      to be so clever to know that there is an immense difference
      between these articles of interest that is very transitory or daily
       and a pathology treatise or a course of mathematics.
      
      9. Few judges would decide in the way that Mr Escriche does
      

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      the fact that some author had transferred ownership of a writing
      in general terms, and then a legal rule is enacted
      extending that ownership. Undoubtedly the transferee would enjoy
      this benefit since he would be subject to the detriment in the
      the opposite scenario. It would be as if the buyer of a house located
      in a bad alley, was to gain in value because a square had been built in
      front of it, and as if the merchant who acquired goods which value
      increased for the sudden prohibition to be introduced. The former
      owners of the house and of the goods would have nothing to do
      with the higher price taken by one or other.
      
      10. The application to be given to the decree of 1834, regarding
      works published before that time, counting the ten years period of ownership
      that the inheritors could enjoy after the death of the authors, as
      stipulated in its article 30, and not from the promulgation of the decree,
      would be absurd, according to Mr. Escriche,
      since it was the same as declaring that, by virtue of a recent law
      a right that existed five, ten or more years before by virtue of another
      earlier law, had expired, as if the repealing law could make
      the repealed one not to have been in effect nor produced its effects
      until the derogation act. If it is not easy to understand the subtleties
      of Roman law concerning retroaction, badly presented by Mr.
      Escriche in this case, everyone understands that the lawmaker in
      1834, without making any innovation on what happened earlier, and
      believing that the ten-year privilege was sufficient for the inheritors,
      could say to those who had already enjoyed it for ten, fifteen or
      twenty years: Be happy with this length of term which is equal to
      or longer than the one those in future will enjoy. Of course this
      would be much less of an extortion than if the lifelong ownership
      was reduced to ten years; and Mr. Escriche does not reject this
      as long as the said term starts to run from the day the law is
      legislated. We should note that when the law of 1834 was issued,
      no inheritor whatsoever was enjoying his rights because of earlier laws,
      

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      porque none had come forward
      promptly to ask for the extension of their privilege a year after
      the previous one expired, according to what was stipulated in law
      26 of tit. 16.
      
      Based on the principle that the law gives every living inheritor
      the ownership of works for ten years as from the date of its promulgation,
      it would follow that whoever had enjoyed it for twenty years before
      could enjoy it for thirty and only the author’s inheritors
      could have it for only ten if the author had died the day before;
      which contradicts the spirit and text of the law which establishes that it
      cannot overrun more than ten years, and that these years are consecutive
      to the author’s death. It would also follow that rights would resurrect after
      they expired, and that some particular books would again be privately owned,
      which had already become communally owned because the inheritors’ rights
      had expired. In my opinion, this would be absurd.
      
      Mr. Escriche adds that such an application would bebarbaric,
      because it would unexpectedly ruin inheritors who,
      trusting the law, had made editions that could not be sold because
      of booksellers who would make other more cheaper editions.
      Mr. Escriche does not consider a law barbaric for shortening
      and restricting to a certain number of years an indefinite time that authors
      and their inheritors had for printing and exclusively selling their works
      as far as the specified term begins from the promulgation; and it favours it
      with such a soft epithet, when he puts together a publication that the heirs made
      (and not the author, who continues to own it throughout his lifetime)
      with the one that the speculators could publish in the exceptional event
      that quick sale of the work would provide an outlet for many simultaneous
      editions. However, that could cause serious damage in certain
      circumstances, and it would only force the inheritor to lower a bit the price
      of his edition, but never less than the cost; and he would
      always be given time for being the only seller as it was assumed

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      his edition was concluded when the others had not started theirs yet.
      
      11. It is untrue that it is currently projected, among several
      European powers, and even American ones, to reach
      diplomatic agreements for adopting an international law
      that guarantees property for all authors, or at least temporary
      protection of their works, whatever the nation in which they
      were printed.European and American nations have too many real
      and serious things to think about, before dreaming about those issues that are
      unrealistic, according to what has been demonstrated. In Paris approximately
      three years ago, several writers made a passionate call because the
      Belgians were re-printing all their works easily. The Tuileries
      office took the issue very seriously and appointed a commission
      that consisted of authors and editors. As a result of their work, they
      proposed an agreement between every nation be reached to reciprocally
      protect the literary property rights of their authors. This absurd
      idea was immediately rejected in various documents and the commission
      was dissolved without having insisted that at least an agreement
      with Belgium be reached. This country had motivated the claim
      and it is a country that, due to its geographical situation, and since
      the language and French money are the usual currency (identical in
      value to the Belgian one), and taking into account the close links of
      their kings with those of the house of France, for the aid they
      gave to build an independent state, and for the protection
      they continue to provide, it could almost be considered as
      an integral part of the French territory.
      
      12. Booksellers ought not to be very grateful to Mr. Escriche
      for the favour he gives them by saying that today introducing
      Spanish books printed abroad is punished by four-year prison sentences
      and forfeiting their belongings;and even less for
      his effort to resurrect laws 3 and 22 of tit. 16 of book VIII of the
      Novísima, laws that are so unjust that, neither when they
      were passed, have they been applied. Let's look back at the history

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      of our political persecution, let's open, if you want, the bloody annals
      of the Inquisition, and give me at least one example of a bookseller
      who, because he introduced or sold books in romance printed abroad,
      has been given the death sentence or either the loss of his belongings,
      or that of perpetual exile, or even four years of imprisonment. Moreover,
      when the one of 1838, and the Penal Code of 1822 reduced them in
      art. 603 to a fine of fifteen to thirty five duros, Does
      Mr. Escriche dare to claim its application? A considerable lack of criteria
      is needed, or a huge surplus of heat, to appeal to similar extravagancies
      and to add those that are related to the use that can be given to a work
      introduced by virtue of the Order of 28 August 1834. Whoever brought
      it for their own private use, can give or transfer it;
      so it is not strange to find some of them at the disposal of the first buyer
      in shops in La Trinidad or the Puerta del Sol, that could well be re-printed
       (and nothing can prevent this) if the bookseller can sell them.
      
      Something a little more worthy from the pen of the author of a Diccionario de
      legislacion, would be to plead just for the opposite principle,
      to use his zeal in expressly abolishing these laws, which
      luckily only existed in writing, and are a real blot of our Code. He should
      ask for art. 18 of the 1823 decree to be reinstated so that we are not in
      dispute with the practices of some more advanced and civilized countries.
      
      13. And lastly, what Mr. Escriche says finally about the French laws
      that recognise property rights for the author and his widow throughout
      their lifetime, and for their children for 20 years, is not completely
      accurate and as clear as it should be. The decree by the Convention
      of 19 July 1793 established in article 2, that in the ten years following
      the author’s death, his inheritors or cessionaries have ownership of
      his printed works. The imperial decree of 5 February 1810 extended
      this right to the whole lifetime of the author’s widow, and to 20 years
      for his children;
      

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      but so that the widow can hold this while she is alive,
      the husband must have assigned this right to her in their
      marriage contract. If this stipulation is missing,
      presumably what is stated in art. 2 of the decree from
      the Convention would be applied. The meaning
      of the word children has raised some doubts;
      but on 4 May 1822 the Court of the First Instance of the
      Seine ruled in the lawsuit between Mr. Agasse’s widow
      and Mr. Verdière regarding the Curso de literatura by Laharpe,
      that should be taken in the strict sense and which excluded
      the collateral inheritors, whose rights were prearranged
      by the law of 1793, and not abolished by that of 1810.
      
      It is about time to finish the heavy task I have started.
      What I have said should be enough for the editors of the Madrid
      Gazette, to figure out that article that
      they published; it is mistaken on its main object; almost all
      the legal points that it incidentally mentions are bewildering;
      it is an unpalatable allegation that gets involved in at every step
      with already insinuated matters, some of which are inconveniently
       mixed together. There are contradictions between them, and
      to sum this up, everywhere you can see he (Escriche) is far from being a
      model in language, style and knowledge, as they believed he was.
      Their disappointment is less important than that of the public,
      who, when seeing certain doctrines in the Diccionario
       de legislacion, could take them for granted,
      without examining them, and therefore they should be warned
      of their contradiction with the good principles of law.
      
            AN AFICIONADO TO JURISPRUDENTIAL
                  CONTROVERSIES
      
      Valencia, 14 August
      of 1838



Translation by: Kay Leach revised by José Bellido