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Supreme Court on Originality , Madrid (1861)
Source: Archivo del Tribunal Supremo. id. Cendoj: 28079110011861100099
Citation:
Supreme Court on Originality , Madrid (1861), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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8 translated pages
Chapter 1 Page 1
Seven Hundred fifty-nine
[On the left margin]
Ramon Lopez Vazquez
Sebastian Gonzalez Nandin
A – Gabriel Ceruelo de Velasco
Joaquin de Palma
In the city and Court of Madrid, on 4 December 1861,
the case concerning Mr. Vicente Pujals de la Bastida against
Mr. Tomás Hurtado for plagiarism and damages are brought before
us as a cassation appeal that the first mentioned lodged against
the decision of the First Chamber of the Real Audiencia (High Court)
of this Court:
Whereas Mr. Vicente Pujals published in 1851 a Cartilla para
enseñar á leer (Primer for teaching how to read) and in 1855
a supplement entitled Cartilla progresiva pa-
ra enseñar a leer con la mayor facilidad y prontitud
sin necesidad de Caton, (Progressive Primer for teaching how to read
very easily and quickly without the need of a First Reading Book).
He presented copies of it to the Ministry of Public Instruction and Public Works.
He was issued with the relevant certificates:
Whereas in 1856 Mr. Tomás Hurtado printed a book
Chapter 1 Page 2
entitled Consideraciones sobre enseñanza de
la lectura del idioma español, (Considerations on
teaching how to read the Spanish language), in which
he censured Pujals' Cartilla (Primer)
and several other methods. He published a new one
later on, divided into two parts, for teaching
how to read briefly, easily and correctly in the
same language:
Whereas on 7 March 1857, Pujals concluded that
the last mentioned was a plagiarism of his Progressive
Primer without any other addition than joining capital
letters with lower case letters and the letters "h" and "y".
He filed a claim at the First Instance Court in the
district of Las Vistillas in this city claiming that,
pursuant to the law of 10 June 1847, Mr. Tomás Hurtado
be condemned for the publication he had made as his own,
of the first and second parts of the New method for teaching
how to read the native language briefly, easily and correctly:
that all the copies found of this work should be destroyed,
and by way of damages,that he should pay another 3,000
in folio and in 8 of the Progressive Primer,and the legal costs:
Whereas Mr. Tomás Hurtado counterclaimed, asking
that the claim should be dismissed and declared that
it was not true that he had adopted
Chapter 1 Page 3
what Pujals published in 1855 for his method,
because both of them were essentially different.
His was original in the idea, order of words
and examples that dominated it; he added in
the rejoinder that the law could not prohibit
publishing works of the same class and addressing
the object itself, however similar the method
might be with regard to its ideas, essence and form,
because the explanation and development constitute
a property that is different from the reprinting
and reproduction.
Whereas, having presented the evidence that
the parties produced, the Judge of the First Instance
Court issue its decision on 26 October 1857 that the
First Chamber of this Court confirmed on 30 June 1859.
They acquitted Mr. Tomás Hurtado of the proceedings filed
by Mr. Vicente Pujals de la Bastida, who lodged the current
cassation appeal on the belief that Articles 1 and 10 of
the aforementioned Literary Property Act and one of the
axioms applicable to every proceeding had been infringed,
Chapter 1 Page 4
although the decision was based on the fact that
the Cartilla (Primer) had already been
published by the Sala y Armella brothers, when this concept
is otherwise.
Verified by Minister Gabriel Ceruelo de Velasco
who was the Reporting Judge:
Considering that, according to Art. 1 of the law
of 10 June 1847 and for its effects, literary property
means the exclusive right of the authors of original writings
to reproduce them or to authorize their reproduction by means
of manuscript, printed, lithographed copies, or by any other
similar means,and that Art. 10 prohibits reproducing someone
else’s work without permission from its author, under the pretext
of annotating, commenting on it, adding it or improving its edition.
Considering that Mr. Tomás Hurtado, when he published his
Nuevo método de lectura (New reading method) did not
reproduce the original writing, that is, the same
work that Mr. Vicente Pujals issued for the same purpose,
as he clearly recognizes in his documents, he confined himself to claiming
that Hurtado had taken and reproduced as his own, the idea or method adopted
by him in his cartilla (Primer),
Chapter 1 Page 5
which belonged to him and consequently he committed
a true plagiarism, included in the provisions of the
aforementioned Act and he should be punished for it:
Considering,that even if the aforementioned law
is applicable to the matter from such point of view,
it would be necessary for this alleged plagiarism to exist that
the idea or method that Hurtado published as the original,
had been the same in concept as before, and prior to the legal
requirements for Pujals to acquire ownership, and that no one else
before him had published it:
Considering that three experts, two of them appointed
by the appellant, and whose scientific appraisal was requested
for submission at this point of the debate, they were asked
questions raised by him, besides declaring that the development
of his thoughts there is a substantial difference throughout each of
them.
Chapter 1 Page 6
They stated that in 1849 a Curso de lectura por un nuevo método
(Course for reading using a new method) had been published
in Figueras, which follows that of Pujals. Its authors
explained they had successfully taught this for a period
of six years, and that in 1846 the same procedure was also
published in Paris accompanied by a Teacher’s Guide, which
was said to be used for over 20 years in many schools.
Considering the result of these statements, Pujals cannot
uphold the originality of the idea he developed in his work,
and that it was exclusively a product of his scientific research,
nor that when Hurtado adopted it in the one he published later on,
that he had committed the plagiarism he was being accused of;
And considering that under neither of these two concepts,
that is, neither as a reproduction of a work or someone else’s
original writing nor as a reproduction of an idea or
method that the appellant published earlier, have the
sections mentioned above been infringed.
The claim should be dismissed and, due to the vagueness and
lack of expression,
Chapter 1 Page 7
the claimed axiom that is also alleged in support of the appeal
cannot be taken into consideration;
We hereby rule that we should declare, and do declare,
that there is no cause for the claim lodged by Mr. Vicente Pujals
de la Bastida, who we order to pay the legal costs and the amount
he provided as a guarantee be paid when possible;
and the file shall be returned to the Court of Madrid with the
corresponding certification.
Therefore this is our judgment, which will be published
in the Gazette and inserted in the legislative series (Colección legislativa),
making available the necessary copies. We hereby declare, order and sign it
Ramón López Vazquez – Sebastián González Nandín
Antero de Encharri – Gabriel Ceruelo de Velasco
Joaquín de Palma - Pedro Gómez de Hermosa
Ventura de Colsa
y Pando
Chapter 1 Page 8
Note: see page sixty and ..
of the Book
Publication. The above decision was read
and published by the Honourable, Mr Gabriel Ceruelo de Velasco
magistrate of the Supreme Court, holding public hearing in
Courtoom 1, today, which I, the Secretary reporting to this Court
hereby certify.
Madrid 4 December 1871
Luis Caltraveño
Translation by: Kay Leach
Source: Archivo del Tribunal Supremo. id. Cendoj: 28079110011861100099
Citation:
Supreme Court on Originality , Madrid (1861), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | No Commentaries
Translation only | Transcription only | Show all | Bundled images as pdf
8 translated pages
Chapter 1 Page 1
Seven Hundred fifty-nine
[On the left margin]
Ramon Lopez Vazquez
Sebastian Gonzalez Nandin
A – Gabriel Ceruelo de Velasco
Joaquin de Palma
In the city and Court of Madrid, on 4 December 1861,
the case concerning Mr. Vicente Pujals de la Bastida against
Mr. Tomás Hurtado for plagiarism and damages are brought before
us as a cassation appeal that the first mentioned lodged against
the decision of the First Chamber of the Real Audiencia (High Court)
of this Court:
Whereas Mr. Vicente Pujals published in 1851 a Cartilla para
enseñar á leer (Primer for teaching how to read) and in 1855
a supplement entitled Cartilla progresiva pa-
ra enseñar a leer con la mayor facilidad y prontitud
sin necesidad de Caton, (Progressive Primer for teaching how to read
very easily and quickly without the need of a First Reading Book).
He presented copies of it to the Ministry of Public Instruction and Public Works.
He was issued with the relevant certificates:
Whereas in 1856 Mr. Tomás Hurtado printed a book
Chapter 1 Page 2
entitled Consideraciones sobre enseñanza de
la lectura del idioma español, (Considerations on
teaching how to read the Spanish language), in which
he censured Pujals' Cartilla (Primer)
and several other methods. He published a new one
later on, divided into two parts, for teaching
how to read briefly, easily and correctly in the
same language:
Whereas on 7 March 1857, Pujals concluded that
the last mentioned was a plagiarism of his Progressive
Primer without any other addition than joining capital
letters with lower case letters and the letters "h" and "y".
He filed a claim at the First Instance Court in the
district of Las Vistillas in this city claiming that,
pursuant to the law of 10 June 1847, Mr. Tomás Hurtado
be condemned for the publication he had made as his own,
of the first and second parts of the New method for teaching
how to read the native language briefly, easily and correctly:
that all the copies found of this work should be destroyed,
and by way of damages,that he should pay another 3,000
in folio and in 8 of the Progressive Primer,and the legal costs:
Whereas Mr. Tomás Hurtado counterclaimed, asking
that the claim should be dismissed and declared that
it was not true that he had adopted
Chapter 1 Page 3
what Pujals published in 1855 for his method,
because both of them were essentially different.
His was original in the idea, order of words
and examples that dominated it; he added in
the rejoinder that the law could not prohibit
publishing works of the same class and addressing
the object itself, however similar the method
might be with regard to its ideas, essence and form,
because the explanation and development constitute
a property that is different from the reprinting
and reproduction.
Whereas, having presented the evidence that
the parties produced, the Judge of the First Instance
Court issue its decision on 26 October 1857 that the
First Chamber of this Court confirmed on 30 June 1859.
They acquitted Mr. Tomás Hurtado of the proceedings filed
by Mr. Vicente Pujals de la Bastida, who lodged the current
cassation appeal on the belief that Articles 1 and 10 of
the aforementioned Literary Property Act and one of the
axioms applicable to every proceeding had been infringed,
Chapter 1 Page 4
although the decision was based on the fact that
the Cartilla (Primer) had already been
published by the Sala y Armella brothers, when this concept
is otherwise.
Verified by Minister Gabriel Ceruelo de Velasco
who was the Reporting Judge:
Considering that, according to Art. 1 of the law
of 10 June 1847 and for its effects, literary property
means the exclusive right of the authors of original writings
to reproduce them or to authorize their reproduction by means
of manuscript, printed, lithographed copies, or by any other
similar means,and that Art. 10 prohibits reproducing someone
else’s work without permission from its author, under the pretext
of annotating, commenting on it, adding it or improving its edition.
Considering that Mr. Tomás Hurtado, when he published his
Nuevo método de lectura (New reading method) did not
reproduce the original writing, that is, the same
work that Mr. Vicente Pujals issued for the same purpose,
as he clearly recognizes in his documents, he confined himself to claiming
that Hurtado had taken and reproduced as his own, the idea or method adopted
by him in his cartilla (Primer),
Chapter 1 Page 5
which belonged to him and consequently he committed
a true plagiarism, included in the provisions of the
aforementioned Act and he should be punished for it:
Considering,that even if the aforementioned law
is applicable to the matter from such point of view,
it would be necessary for this alleged plagiarism to exist that
the idea or method that Hurtado published as the original,
had been the same in concept as before, and prior to the legal
requirements for Pujals to acquire ownership, and that no one else
before him had published it:
Considering that three experts, two of them appointed
by the appellant, and whose scientific appraisal was requested
for submission at this point of the debate, they were asked
questions raised by him, besides declaring that the development
of his thoughts there is a substantial difference throughout each of
them.
Chapter 1 Page 6
They stated that in 1849 a Curso de lectura por un nuevo método
(Course for reading using a new method) had been published
in Figueras, which follows that of Pujals. Its authors
explained they had successfully taught this for a period
of six years, and that in 1846 the same procedure was also
published in Paris accompanied by a Teacher’s Guide, which
was said to be used for over 20 years in many schools.
Considering the result of these statements, Pujals cannot
uphold the originality of the idea he developed in his work,
and that it was exclusively a product of his scientific research,
nor that when Hurtado adopted it in the one he published later on,
that he had committed the plagiarism he was being accused of;
And considering that under neither of these two concepts,
that is, neither as a reproduction of a work or someone else’s
original writing nor as a reproduction of an idea or
method that the appellant published earlier, have the
sections mentioned above been infringed.
The claim should be dismissed and, due to the vagueness and
lack of expression,
Chapter 1 Page 7
the claimed axiom that is also alleged in support of the appeal
cannot be taken into consideration;
We hereby rule that we should declare, and do declare,
that there is no cause for the claim lodged by Mr. Vicente Pujals
de la Bastida, who we order to pay the legal costs and the amount
he provided as a guarantee be paid when possible;
and the file shall be returned to the Court of Madrid with the
corresponding certification.
Therefore this is our judgment, which will be published
in the Gazette and inserted in the legislative series (Colección legislativa),
making available the necessary copies. We hereby declare, order and sign it
Ramón López Vazquez – Sebastián González Nandín
Antero de Encharri – Gabriel Ceruelo de Velasco
Joaquín de Palma - Pedro Gómez de Hermosa
Ventura de Colsa
y Pando
Chapter 1 Page 8
Note: see page sixty and ..
of the Book
Publication. The above decision was read
and published by the Honourable, Mr Gabriel Ceruelo de Velasco
magistrate of the Supreme Court, holding public hearing in
Courtoom 1, today, which I, the Secretary reporting to this Court
hereby certify.
Madrid 4 December 1871
Luis Caltraveño
Translation by: Kay Leach