---

11 translated pages

---

Chapter 1 Page 1

            
            
            
            
            COPYRIGHT            
            ~~~~~~~~~~~
            
            
            SPANISH AND FOREIGN LEGISLATION
            
            COMMENTED, ANNOTATED AND EXPLAINED
            ACCORDING TO HISTORY, PHILOSOPHY, JURISPRUDENCE
            AND INTERNATIONAL TREATIES
            
                        By Dr.
            
            
                  MANUEL DANVILA Y COLLADO
            
            Lawyer from the Madrid, Valencia and Granada Bars;
            Speaker at the General Codification Commission; Former Vicepresident
            at the Congress of Deputies and honorary member at the Economic Society of Friends of
            Society of Friends of Valencia and the Agriculture Association of Salamanca
            
                        
                        FIRST EDITION
            
            
                        MADRID
            IMPRENTA DE LA CORRESPONDENCIA DE ESPAÑA
                        Paseo de las Yeserias
                              1882
      
            Translators' note: To avoid an unnecessary semantic confusion, "propiedad intelectual"
            has been translated as "Copyright". For a genealogy of the term, see Hughes (2011)

---

Chapter 1 Page 2

            
            
            
            
            
            
            
            
            INTRODUCTION.
            
      What copyright has been, is, and ought to be in Spain (1)
            
            
            
      A well-known thinker says that property, which is
      intimately attached to man, to his personality and to his individual
      and social destiny, should reflect every evolution of human life,
      and the concepts of intelligence, religious beliefs and the
      various sentiments that dominate men and transform
      the life of the people, should be transparent in laws
      concerning the organization of property.
      
      
      
      
      And in effect, property is so inherent to the human
      being that its existence has been a constant fact
      since the primitive Ayras to us; including at least
      the eventful age of the French Convention,
      in spite of which their bold denials
      managed to record it among man's
      natural and imprescriptible rights.
      This universal feeling makes it qualify
      as an innate right, because nothing is
                  
      ____________________
            
      (1) This essay, which varies slightly in style, was published in
      La Época newspaper on 14 and 17 October 1875. It was used
      as a preamble for proposing a law that was put before the [Spanish] Congress
      of Deputies. The author fully supports the integrity of the opinions stated
      in these articles.

---

Chapter 1 Page 3

                        10
            
            known as well as this secret instinct that we give to our
            desired property, our works, and that impels us
            to separate and recognize acts, and the desire for
            the property of others. Lerminier said
            that when property is considered subjectively, it includes
            the powers that form his being; it is the aspect that
            fulfills his personality; this way of considering property
            in the individual is far from being a mistake; this
            aspect resides in it; it is a force that searches for this right,
            like looking for that freedom, that of safety. He
            can discover his origin and independence of this right
            with the same powers: owning the physical world
            is the necessary development of freedom:
            without property, pwoer would be nothing. Therefore
            Savigni recognizes that man would not be free as
            opposed to nature, if he did not have the right to dominate
            it: this right, which is none other than the extension of
            individual freedom over exterior objects, is what
            constitutes property.
            
            This notion is related to the general idea of rights,
            presented initially as an element of dominance,
            the perpetuity for which the man is considered to be
            an arbitrator of his thoughts, capable of moderating
            his desires, in command of his strength; he feels a love for
            glory, he has the satisfaction of its virtues and the conscience
            of his capacity; he triumphs over nature for it, and after
            having dominated the land and ruled the waves,
            he admits that not in vain is he called the king of creation.
            Without this right, which ensures that man can own
            his conquests, the concept of personality would be limited,
            because he would not have known the attributes of his power.
            The generic idea of property involves the idea of its perpetuity,
            subject to the general laws of transfer,
            
            

---

Chapter 1 Page 4

                        11
            
            and rejecting that of a temporary, incompatible existence
            of the same nature.
            
            When these general principles are assumed, it is
            possible to examine the historical and rational facts of
            copyright because legislators would not be worthy of their
            name if they desperately resist the double impulse
            of reason and history, which show them how to use
            the power that society puts in ther hands.
            Having finished that, nobody can reasonably defend
            that the most characterized, most founded, most
            irrefutable property, the first ever property, is no
            other than a mere usufruct. How can we proclaim
            this without destroying the grounds for any kind
            of property! If the law has the power to
            that the intellectual essence that is found on
            a book does not belong to whoever painfully
            wrote it, there is no possible defence for other
            properties. You can start to understand this truth for
            property, now that organic institutions are not considered,
            and due to their origin, they are connected to men, to the
            constitutive beginning of their, and to the laws pf their
            social development. In a letter of 4 December 1843
            addressed to Mr. Gobard, the director of the Brussels
            Museum of Industry Louis Napoleon Bonaparte
            wrote the following : “Like you, I believe that
            an intellectual work is a property like an estate or
            a house, which should enjoy the same rights, that cannot
            be expropriated unless for public use".
            

---

Chapter 1 Page 5

                        12
            
                        I.
            
            
            Possibly intellectual and physical atmospheres
            incessantly surrounding the human being cannot
            be appropriated, but land, literary and artistic works and
            creations, which some commentators call real and
            intellectual property, undoubtedly are [appropriable],
            although the idea appears before the tangible facts that are
            its legitimate consequence. Human intelligence has used
            various forms to materialize the creations of the spirit,
            and papyrus, stone, metal, and wood have only initially
            served for a fragile verification of man's inspirations,
            the reproduction of which is difficult to verify and that
            constitute how useless it was to claim a right that nobody
            was disputing. For this reason, neither in antiquity nor in
            the Middle Ages were there any laws about artists' and
            authors rights, even though book trading was very
            important in Rome; Martial invented the word
             plagiarist to define whoever reproduced
            someone else's work; Virgil tried to defend himself from
            them with sic vos non vobis. Suetonius
            narrated during the lifetime of Tercentius that no work
            was as expensive as the Eunuch of this author, which
            confirms the habit of urban magistrates purchasing
            comedies from their authors to entertain the people-king;
            and that other examples could be reproduced as the
            learned Nodier mentioned in his questions on
            legal literature.
            
            The same occurred in the era when all the nations began
            to legislate on this matter. The invention of parchment,
            the same with that of paper, although they solved
            the problem of easy, cheap and stable reproductions

---

Chapter 1 Page 6

                        13
            
            
            involves the doubt as to whether the work is the main
            work and the copy is an accessory or vice versa. Justinian
            solved this doubt in his Institutions. The discovery
            of the press provoked, among its beneficial outcomes,
            this clear and perceptible concept of copyright when the
            fearful concept of privilege was born. Today it is the
            subject of research of every thinker who studies it
            from the point of view of morality and progress.
            Unexpected creations of imagination and genius became
            the essence of the modern world and when revolution
            clashed with ideas, they followed another revolution
            grounded in facts, as always happens in the wonderful
            science of history. According to Vergara's felicitous
            expression, in a delicate work bequeathed to us,
            machines have enhanced the human body and scientists
            have perfected the spirit; steam and the printing press
            have made men cosmopolitan, erasing frontiers and
            and building the pedestal of humanity.
            
            Inventing the press and discovering America meant
            a historical turning point for Spain, a moment in which
            a great Queen, glory of the Motherland and the century,
            heightened the Spanish throne, opening the way for a talent
            that absurd concerns had uselessly denied for so many
            centuries of ignorance. The pragmática given
            in Toledo in 1480 (law 1, tit. 15. book. 8 Novísima Reco-
            pilacion), satisfying the need to legislate work of spirit,
            mentioned that "when considering kings of glorious memory,
            it was beneficial and honourable that their kingdoms brought
            in books from other territories, so that men could become
            learned with them, they wanted and ordered books to be
            exempted from taxes (alcabala). This exemption was extended
            to import and export duties, tithes, tolls, and other rights.
            So, in cities, towns and Crown properties, and also
            

---

Chapter 1 Page 7

                        14
            
            
            segnorial homes and orders and plebeian lordships,
            under a penalty, whoever acted to the contrary,
            would commit and incur sentences for those that
            request and carry forbidden impositions".
      
            These and other exemptions were confirmed by the
            Catholic Monarchs themselves in tax (alcabalas) laws 31
            and 32 given on 10 December 1491 to the fertile plain
            of Granada and another pragmática given
            in Toledo on 8 July 1502 (law 1, tit. 16 id.), in which
            printing and introducing books without a licence was -
            prohibited. Regents and bishops were entrusted with this
            task. It was ordered that any book printed and brought into
            the kingdom without licence should be burned in the twon
            square wherever they were found. Their owners had to pay
            whatever the burnt books were worth and reimburse what
            they have received from selling them.
            
            Princess Juana of Castile reiterated the same prohibitions
            on behalf of and due to the absence of Philip II,
            on 7 September 1558. He did the same on 27 March 1569 and
            in 1598. In Lerna in 1610, his sucessor, Philip III, prohibited
            that, without a special licence, no books by Spanish authors
            could be printed outside Spain. Any book printed in that way
            could not be brought into the country either, under the penalty
            of loosing the books , nature, honour nd dignity, and half of
            their assets divided into thirds for the Chamber, judge and
            plaintiff. On 22 December 1692, Charles II abolished any
            jurisdictional privilege (fuero) for printers and book merchants
            related to their trade. Only printing superintendents or their
            subdelegated judges should know of these business
            to avoid concealments or unnecesary conflict of competences.
            In 1705, 1716, 1734 and 1752 Philip V and Ferdinand VI
            

---

Chapter 1 Page 8

                        15
            
            
            passed several regulations focused on securing the
            interests of the state rather than those of the authors.
            
            Charles III reserved this glory, following the patriotic
            advice from Jovellanos and Floridablanca. He was
            a precursor who knew how to sow the good seed, which
            produced such exceptional fruit by transforming the way
            of life of Spanish society. He began on 14 October 1762,
            by abolishing book fixed prices, because “freedom of trade is the Mother
            of wealth”.
            
            Nevertheless, educational and instructional books were exempted
            since "they constituted an essential need". Shortly after this, and at
            the Buen Retiro, he issued a royal order on 23 March
            1763 for no one to be granted any exclusive privilege to print any
            book whatsoever except the author who had written it.
            According to this rule, if a secular or regular community applied for
            a privilege, the appplication was consequently rejected. Furthermore, if a
            dead hands' community (manos muertas) had a privilege already granted,
            such privilege was to cease afterwards. Moreover,
            as fine doctrinal developments made their way through
            all these concerns, the Monarch promulgated the royal
            order of 20 October 1764, the first Spanish law to
            recognize copyright. Privileges granted to authors were
            not supposed to be extinguished upon their death.
            Their heirs could inherit them unless they were communities
            or dead hands. They could continue with the privilege if
            they applied for it, because of the attention deserved to thse authors,
            who after having distinguished their motherland,
            they left no heritage to their families other than the honest wealth
            of their own works and the stimulus for imitating their good example.
            
            

---

Chapter 1 Page 9

                        16
            
            
            Spanish literature still owes further gratitude to
            Charles III , because under the ruling of 14 June 1768
            and the Council by the Dispatch of 16 June of the same year, it was
            ordered that authors would defend their works before the Inquisition
            prior to their direct prohibition; that having died as a foreigner,
            someone else would defend them on their behalf and while they were
            being qualified, books could not be seized. Only the Holy Office
            could deal with religious and moral matters. Another royal order
            on 14 June 1778, and dispatch of the Council of 9 July of the same year,
            not only confirmed and restated the resolutions of 22 March 1763
            and 20 October 1764, they also ordered that the Royal Library,
            Universities, Academies and Royal Societies should enjoy privileges for the
            works written by their members jointly or especially when they had
            published them alone, for the period of time these privileges
            were granted to other authors. Although works of deceased or
            foreign authors could be reprinted having collated them with
            manuscripts, added to them or embellished them with notes
            or new observations, they would not enjoy any exclusive privilege
            in this case, in the same way that no one should enjoy privileges except
            the author or inheritor. And number 3 stated that if the granted privilege
            for any author had expired, and he or his heirs had not applied
            for an extension within the following year, a licence could be granted
            to anyone who applied for re-printing the book; and the same possibilty
            would apply if, after granting the extension, this was not used within
            a period proportional to whatever the Council indicated.
            Therefore and because of this default, which indicated the abandonment
            of ownership, the work would be at the government’s disposal, not allowing it to be
            needed or for its price to increase if it were useful.
            
            That was the state of the Spanish legislation on […]
            

---

Chapter 1 Page 10

                        36
            
            
            copyright can be developed and confirmed by the
            invention of the press and auxiliary arts that enrich the field of intelligence.
            All the alarms voiced at the damaging consequences of copyright are fanciful
            and the opposing and persistent resistance against the recognition
            of copyright is a retrograde resistance, a resistance against which every moral
            movement of legislations and sentiments is against.
            
            The idea of copyright, which is badly defined and worse known,
            begins to be appreciated by universal conscience. And after four centuries,
            it is still growing and being clarified, and especially after the last century,
            it develops with amazing speed. Everybody already admits that the matter
            of perpetuity is a question of honour for copyright, even more than a question of interest
            that seriously affects the strength of territorial property, which darkens the idea itself
            of property rights and exposes it to the most interested parties' recognition of the luminous
            beacon of justice.
            
            Therefore, undoubtedly copyright is a common property and it does not require
            anything more than the general system of law for its existence. It is easy to understand
            then that its constitution should be the object of the above mentioned (general) law and
            of a regulation that specifies the ways to enforce it. To this effect, the following two resolutions
            should be taken: the establishment of a copyright office (registry) and its applicable tax. In order to
            reconcile authors' rights with the right that society might have for spreading useful knowledge,
            and what the progress of the science undoubtedly demands, it should also be specified
            an obligation for every author
            

---

Chapter 1 Page 11

                        37
            
            
            to always have copies which they own available to the public,
            and the right for private individuals, the State, and scientific corporations
            to re-print and alienate what had been abandoned for a limited time
            knowing the consequences. This could be the practical solution to
            reconcile the social and the private interest and that redeems copyright
            of the unjust yoke that fits so badly with the progressive march of humanity.
            The intellectual work is the product of the work of the spirit; raising it,
            enriching it, that will raise and enhance human personality,
            the seed of redemption of unfortunate people. This is how,
            due to its admirable harmony, the work that is a holy law for man,
            also tends to be the source of his most valued rights and
            the safest guarantee of his happiness.
            
            
            
            
            
            
                        ---------------


Translation by: Kay Leach