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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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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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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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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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
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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
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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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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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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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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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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