PRIMARY SOURCES

ON COPYRIGHT

(1450-1900)

Casado's PhD on Copyright , Madrid (1859)

Source: Biblioteca de la Universidad Complutense de Madrid; D 51302

Citation:
Casado's PhD on Copyright , Madrid (1859), 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


      

ON COPYRIGHT


____________________


SPEECH

GIVEN

AT THE CENTRAL UNIVERSITY

on 26 February 1859

AT THE ACT OF RECEIVING THE SOLEMN INVESTITURE

OF


DOCTOR IN JURISPRUDENCE


BY

Mr. IGNACIO M. CASADO,

National Court Lawyer


      

      

MADRID


V. MATUTE y B. COMPAGNI., PRINTERS


calle de Carretas, 8.


________


1859







Chapter 1 Page 2


                        
            
            
            
            
            
                  Your Excellency and Most Illustrious Sir,
            
            
            Property, born with man, is the eminently
            constitutive aspect of his social condition.
            Every community, every lawmakers in any
            form of government, and therefore the
            Holy Tribune of the free city of Catones, as the
            former conqueror (1), who exclaimed: “I have
            subjected the world; but I am subjected to
            God's will", have unanimously recognized
            this truth as being indisputable; they have all
            guaranteed it within the varying limits of
            their different domination. And it could not
            be otherwise. You will season
            the fruits of the land with the sweat from
            your brows; you will be the prey of infinite evil
            that will overwhelm your existence and
            your descendants as of today
      
            (1) Alexander the Great.



Chapter 1 Page 3


                                    4
            
            God said when throwing our first parents out
            of the mansion of paradise; and this terrible curse,
            which repeatedly echoed throughout the whole
            world, germinated the feeling of social behaviour
            and that of reciprocal aid in the heart of all men;
            inseparable feelings of human nature which
            some sophists have uselessly tried to dispute.
            However society is inconceivable without labour
            since God condemned man to take benefit from
            the land with the sweat from his forehead; and
            labour decreed by the divinity as being necessary
            for the conservation and perfection of human
            nature in the physical, intellectual and moral order,
            could not exist without laws that protect it,
            without justice that safeguard it, without autho-
            rity that defend it. What would society be like
            if the idler and vagabond had the right to take
            the fruits of the labour from the industrious
            and hard-working man by using force or trickery?
            Human nature trembles when observing the
            terrible consequences of this state of anarchy.
            It was therefore necessary, going back to the
            origin of the world, to respect what the hunter
            had caught, the tree that someone had disco-
            vered, the beast that had been domesticated.
            And in respect, born from the conscience
            of the first
            



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                                    5
            
            men, is also the first law that secures property,
            which has been strengthened throughout the
            first centuries What would be of the community
            when these sacred links since their birth and by
            so many laws were broken? It would disappear
            at the voice of revolutions, like the lily disappears
            from the onslaughts of the hurricane, or with
            the wasting of all the industries, the flowering
            plant from the Ecuador would be transferred to
            the polar regions. However, Your Excellency,
            some men, in the deliriums of their imagination,
            wanted to approach a beautiful ideal, or maybe
            overjoyed by the innovative reforms in their times,
            voiced against such an unquestionable right,
            believing that the vices of society were born on
            the bases upon which it was established.
            Intelligence gets lost when it is driven by passion!
            dece á las pasiones! Luckily the voice of these
            philosophers was lost like an echo in the
            immensity of space, and their doctrines, avidly
            adopted by some alarmed rabble in the political
            arena, dissapeared instantly, like a meteor that
            is extinguished in the darkness of the the night after
            having illuminated the space for a moment with its
            sinister radiance. Humanity had rejected such
            horrible deliriums: irrecusable proof


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                                    6
            
            of the truth that they were attacking, proof also
            that property rights had started from uniform
            consent. How can we remove from men the
            innate idea of what is mine and what is yours?
            Do we not see a child, when he has hardly begun
            his intellectual development, separate what belongs
            to him from what belongs to us? Let society
            improve as much as it can; but never confuse
            what is purely accidental with the essence of
            things. The principles of justice are eternal like God
            la justicia son eternos como Dios, and in vain,
            the dreamer or the wicked will concentrate on
            trying to destroy them. One day civilization,
            the world's force, will equal all classes, fusing as
            in other times in Rome, the noble with the
            plebeian; but it will never extinguish poor people
            nor put an end to rich ones, because it cannot change
            the source of wealth: labour. Jean J. Rousseau said:
            The first man who, having fenced in a piece
            of land, said: this is mine, was the founder.
            of society. From how many crimes, wars, and
            murders, from how many horrors and misfortunes
            might not any one have saved mankind, by pulling
            up the stakes, or filling up the ditch, and crying to
            his fellows. Beware of listening to this impostor;
            the fruits of the earth belong to us all, and the earth
            itself to nobody. The philosopher was right:
            the land, at that time, belonged to everyone, like the forest
            


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                                    7
            
            belongs to all the birds bosque who sleep there.
            Nevertheless, why, as the bird chooses his tree,
            did not every man build his house, according to
            Voltaire, in order to constitute a nice city? Does
            not the beaver respect the places where his
            colleagues have built their communities? In
            addition, is there not a certain harmony between
            the laws of intelligence and those of instinct? Did
            the philosopher want man, equipped with reason,
            a sublime difference that separated him from
            everything else that was created, to fight against
            himself in an eternal war?
      
            Whoever appropriated land, did he not do so for
            the benefit of all? Did this land perhaps produce
            anything before it was tilled? Did the fruits someone
            took from the motherland not serve as sustenance
            for others? The barometer of the progress of a nation
            is the progress of its agriculture; and agriculture would
            agricultura moriria, como el árbol á quien le falta
            die, as a tree does when it loses its sap, when property
            rights are weakened. Let us go over history. First men
            lived in misery; our forefathers dressed in leaves from
            the trees and their food was frugal. The first tribes
            roamed around like vagants and the most warlike ones
            took hold of everything that belonged to the
            defeated as ther spoil of victory. Only culture made
            them rich and wealth made them peaceful. That said,
            if culture is necessary for nations to exist, if


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                                    8
            
            property is essential for culture, what other
            social institution has as many benefits? We
            can say, in response to Rousseau:
            Stop listening to deviations of genius: the
            earth, which shelters us all, would disinherit us, and her
            fruits would dry up like a drop of water dries
            with the heat of the sun.
            
            Hence, Your Excellency, having demonstrated the need
            and justice of property in general, in the rest of my speech
            I propose to point out: That justice
            imperiously claims from modern societies
            that copyright also rises to the
            category of perpetual property.
            
            Man is a physical, intelligent and moral being.
            Undoubtedly these three qualities constitute the
            basis of property; because only with material or
            physical force, we could never justify this right, and,
            what is more, it could not even be conceived; and
            podria concebir; and this does not need any proof
            of any sort. If, some time ago, consequently, as
            it is natural, out of the darkness and lack of know-
            ledge, this could be a title or guarantee in favour
            of acquisitions, soon after and while humanity
            was developing, other more solid principles
            would have to be established; on progress of
            intelligence and morality, And if


Chapter 1 Page 8


                                    9
            
            that is how it is, what are the reasons there so
            that this type of property does not deserve the
            same treatment as the material or particular property?
            None. Almost all writers reconize it in this way;
            and the strange thing is that, agreeing and confessing
            this in theory, when putting it into practice there are
            always subtleties and evasions to dispute what they
            have stated. For some time, it was an ailment and it
            is not uncommon in this century to reject a disclosed
            and proven truth, by taking the frivolous pretext of
            being an acceptable theory as the only reason;
            but impossible in practice. Only the lack of
            knowledge can give rise to this belief, which,
            although considered to be individually and in a se-
            parated manner, it does not deserve the honour of
            being refuted. However, I shall pause on it because
            it is quite widespread and it is opposed to the advance
            of civilization. Nobody would dare doubt that order
            and harmony exist, lead and reign in nature: wherever
            it is, there must be laws; where laws, principles or
            some or other systems and theories exist. Due to
            their very nature, theories constitute necessary truths,
            because whatever cannot be explained by using
            formulae is a chaos, a laberynth, and a fabric of
            of mistakes. Men should not be satisfied with
            knowing that something exists: they have to


Chapter 1 Page 9


                                    10
            
            explore what causes produce these effects; and from
            reflection to reflection, it moves from fact to law, from
            multiplicity to unity, from the relative to the absolute,
            from contingency to necessity. Therefore, theory is the
            speculative and practical truth, because truth is only one
            and the same thing cannot simultaneously be and not be.
            When a theory does not match well with well understood
            facts, it shall be vicious, incomplete, but when the severest
            criticism cannot censure it, even though the facts repel it,
            it shall remain a truth: there will be inaccuracy in the
            circumstances of locality and time; it will be like a flowering
            plant that can easily acclimatize to one country but cannot
            in another; but we can say, like Solon, and then our King
            Alfonso X the Wise: I give you not the best
            laws, but the best ones you are capable of
            receiving today. Hence, what is good in
            theory is good in practice; and the first is the daughter of
            observation of the second, the second is also a result
            of the first because both reinforce and confirm each other,
            because both must continue harmoniously, and while
            progressing like that, one day they will reap the delicious
            fruits they offer humanity. It is not my intention, Your
            Excellency, to censure anyone who is currently occupying
            the highest state powers




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                                    11
            
            in the various nations of the European society;
            but perhaps due to the lack of combination of
            these two principles, it is affected by much evil,
            because hardly any theoretical learning is required
            for governing communitiess, and, as Segismundo
            says: We all refuse to exercise an art that we have
            not learnt, and however, nobody refuses to
            accept the office for governing, although
            tried and it is the most difficult of all.
            Once in this area, we will continue to pay attention to
            other criticisms that are launched against copyright:
            they said this is something abstract, something
            impossible, for the same reason that the legislator
            can protect it: by doubting it, there is truth in the
            established principle; but the consequnce is by
            no way legitimate; on the contrary, it is very violent;
            thus, as thought is something abstract, there are no
            skilful terms that annybody can mix with it,
            it is easy to know that it is not in this case when
            the legislator's help is required but when it is no
            longer abstract and it is becomes formulated to
            the criteria of the public. This answer should not
            go unnoticed by those who oppose the doctrine
            we are supporting, those who cannot find su-
            fficient reasons to destroy it, who do not hesitate
            to change their earlier principles


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                                    12
            
            for a different one: thought is social and
            consequently, its property must also be social.
            This insecurity and lack of firmness stated
            in such an obvious manner denotes the limited
            faith they have in their arguments. We will be
            consistent, insisting and agreeing on the first
            principle that thought, in its origin, is
            individual and by no means social: if that is
            the case, we would have to confess that all their
            talents are given to inventing, something that,
            at a glance, shows a blunt repugnance of veracity.
            The most privileged talents cannot foresee
            the consequences that such grant would have
            on humanity. In view of such conclusive reasons,
            those against copyright would would abandon and
            and would try to seek protection from the principle
            of convenience, desiring to demonstrate that
            the legal recognition of this right would constitute
            a monopoly that, as such, would seriously benefit
            some and be detrimental to society.
            
            Hoever, we must disgress from the topic to which
            our speech was devoted, and we shall also enter
            into this area, disputing this argument already made
            and whatever other arguments might appear. It is not
            true that there is a monopoly in such a grant, because
            it is said that it exists when a legal prohibition


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                                    13
            
            prevents prevents someone else from working
            on the same industry, science or art, which
            does not happen here; thus, however much you
            discover something, and it is respected by
            the protection legally given, it does not
            deprive anybody from working on the same
            thing: in whatever case, what would be
            forbidden shall be the appropriation of
            something that already has an owner, and
            nobody will be able to say that this is neither
            suitable nor just. Neither can we agree that
            society loses, because the inventor will try
            to gain the maximum profit from his labour,
            placing his invention within the reach of
            most consumers, because if such a just right
            is restricted and limited, he himself and others
            who are in the same situation will be discouraged
            and will leave this profession; and I consider
            this, Your Excellency, to be of supreme interest
            because: what would be of humanity if it always
            remains in a stationary condition? Without loosing
            the perspective that education is one, and perhaps
            the strongest element upon which mankind rests, and
            the aspect that contributes most to the happiness of
            a nation. Let us look at the criminal statistics for a second,
            and we shall notably be convinced of this bitter truth. As the
            opponents are dissatisfied, they go even further and say:
            If perpetuity is granted, it is highly possible that inventions
            will be lost



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                                    14
            
            carelessly or due to the owner's lack of resources,
            and in this case, society would also be harmed.
            The hypothesis is difficult; but we could agree on its
            possibility. Will this reason be capable of changing
            something it is not by nature? And even then, would the
            same thing not happen to all kinds of property?
            It might be not wise to put certain conditions
             that could belong to it because of its special nature,
            because the same is also observed in all kinds of institutions;
            but these regulatory restrictions can only be supported
            when someone is blind to the true grounds for immaterial property,
            there is an immense distance which in my view is not sufficient
            to justify this hypothesis. Finally, it is said that the time
            for which ownership is granted to the author is sufficient
            to compensate his work. This reasoning, far from destroying our doctrine,
            serves to strengthen and confirm it because in a clear and
            definite manner, it reveals that the inventor's ownership
            is just, extremely just; and with regard to the protection that
            the legislator gives him, we do not agree that it is he who
            should award it but the inventor himself who,after many late nights
            and sleepless nights, has taken a step towards the advance of science,
            and consequently to that of civilization.
            
                  I HEREBY STATE



Translation by: Kay Leach

    


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