Norsk Retstidende.

Weekly magazine for law, statistics and economics, published by the Norwegian Bar Association.No. 28. Wednesday the 28th of June. 1876.

Verdicts.

It has been held that when a book is sold to a publisher without it being stated whether it is the full publishing right that has been sold or only the right to a single edition, it must be assumed that only the latter is meant. This is particularly clear when a literary product is sold to a magazine. Doubtful questions [arise] as to whether it was established that a publication, when a new edition was published, had been: “completely sold out” and the distribution of the burden of proof in this respect.

The High Court's deliberation and judgement of 22 April of the same year in the case, L. No. 155/1 1876: Book printer H. J. Jensen (T. E. B. Heiberg) against the poet Henrik Ibsen (Stang).

Assesssor Hansteen: In the year 1857 Henrik Ibsen's dramatic work “Fru Inger til Østerraad” was printed in the book by the printer H. J. Jensen's publishing houses magazine “Illustreret Nyhedsblad”, and a number of separate prints were made of the work, which were sold in bookshops. The following year, 1858, Ibsen's next dramatic work, “Hærmændene paa Helgeland”, was published as a companion booklet to “Illustreret Nyhedsblad”; but while the subscribers of “Illustreret Nyhedsblad” totalled 1,700, a print run of 2,220 copies of “Hærmændene paa Helgeland” was printed, leaving a surplus of 500 copies, which were sold in the bookshop. In 1871, the printer Jensen sent Henrik Ibsen a letter in which he informed him that he had decided to organise a new edition of “Fru Inger til Østerraad” and “Hærmændene paa Helgeland”, which is why he sent Ibsen a revision copy of the first sheets of the texts in case Ibsen wanted to make any changes. Ibsen replied to this in a letter of 17^th September last year, in which he strongly protested against Jensen having any ownership rights to the works in question, as they had only been sold by Ibsen at the time for use in “Illustreret Nyhedsblad”, and he therefore strongly objected to Jensen publishing any new edition of these works. Nevertheless, in the course of 1871 Jensen published a new edition of “Hærmændene paa Helgeland”, and because of this Ibsen, after unsuccessful mediation, sued Jensen and claimed all publishing rights to the two mentioned works, whereby he claimed confiscation of the published edition of “Hærmændene paa Helgeland” and compensation according to the judgement of unwilling men, made at Jensen's expense, for the loss he had suffered by Jensen's manner of publication with interest on the compensation fees from the conciliation summons; He also claimed that Jensen should be penalised under the Danish Criminal Code and ordered to pay the costs of the case. By Kristiania City Court judgement of 28^th September last year, Jensen was found unauthorised to publish or print the mentioned writings, and it was decided that the reprinted copies of “Hærmændene paa Helgeland” should be forfeited to Ibsen, whereupon Jensen was ordered to pay a fine of 10 Spd. to the Treasury and ordered to pay compensation at the discretion (of unwilling men?), at his expense, for the damage that can be assumed to have been caused to Ibsen by

the new edition of “Hærmændene paa Helgeland” organised by Jensen, plus 5 pCt. Interest on the compensation sum from the settlement summons on 16 December 1871 and 25 Spd. in process costs.

Jensen has appealed this judgement to the High Court, where he, as in the District Court, has claimed that he has been acquitted of Ibsen's charge and awarded the costs of the proceedings before both courts, while Ibsen has claimed that the District Court's judgement has been upheld and has been entitled to the costs of the proceedings before the High Court.

The first question in the case is whether Ibsen has granted him a limited right to print them. In this respect, the claims of both parties are naturally opposed. Jensen claims that he has acquired the full publishing rights without any limitation or reservation; Ibsen, on the other hand, claims, as already stated, that he only transferred these writings to Jensen for the use of “Illustreret Nyhedsblad”. No information outside the parties' admission in this regard is available, as the man through whom the negotiations were conducted, namely university librarian P. Botten Hansen, had died some time before this matter came up. In a letter dated 9^th June 1873, Ibsen has given a more detailed explanation of how things went at the time. He explains in this letter that in the first months of 1857 he sent a copy of “Fru Inger til Østeraad” from Bergen, where he was staying at the time, to Botten Hansen in Kristiania with a request to find him a publisher for the play. In response, Botten Hansen suggested that he, for a fee of 50 Spd. let the play be printed in “Nyhedsbladet”. Ibsen agreed, and during the summer the play was published in 5 consecutive issues of the magazine. When Ibsen arrived in Kristiania shortly afterwards, he learnt that the printers at Nyhedsbladet had, without his knowledge, taken separate prints of the play, which were sold for the magazine's account. At the beginning of 1858, the letter goes on to say, Ibsen, who by then had taken up residence in Kristiania, also sold Botten Hansen the right to have “Hærmændene paa Helgeland” printed as a supplementary booklet for Nyhedsbladet's subscribers for a fee of 30 Spd, whereby the magazine stipulated that the book should be printed in 2,200 copies. The number of subscribers was stated to be, as stated, 1700. If this statement was correct, it is added, there would be a surplus of 500 copies sold in favour of the magazine. Finally, the letter states that Jensen was personally completely outside these negotiations. When in this Ibsen's letter, as stated, it is said that it was without his knowledge that separate impressions of “Fru Inger til Østerraad” had been made, this does not agree with what is stated in the settlement complaint, as it is said that it was by agreement that some separate impressions of this book were made for the bookshop. I do not think, however, that it has any decisive influence whether one assumes one or the other. When it is now asked how one should proceed, in view of the conflicting explanations of these parties, as to whether or not the full publishing right can be assumed to have been ceded, this must of course depend on what one finds to be the presumption in favour in circumstances such as the present. My opinion is that if it is not stated whether it has been expressly agreed that the publishing right, the full and unrestricted publishing right, has been assigned, or whether only a right to print an edition has been assigned, has been transferred. But whatever one may generally assume about this, I think it must be clear that when, as here, a work is sold for printing in a magazine, the presumption must be that it was the author's intention to cede the full publishing right, so that the magazine's publisher could later print new editions. I believe that it is in the nature of things that neither the author himself nor

the magazine publisher who prints the work can be presumed to have thought of printing later editions when nothing has been mentioned about this. That in this case, in addition to the copies supplied to the subscribers, a number of copies which have arrived in the bookshop have been printed, I do not suppose can change the case; For there is no reason to doubt that both parties have regarded the printing for the magazine's subscribers as the main thing and the other as an accessory, and it is in itself quite reasonable that an author who sells a work for the use of a magazine may at once consent to the printing of a somewhat larger number of copies. My opinion is thus that, in the absence of further information, in such cases the matter must go to the book printer. In such cases, the case must go against the printer Jensen already because of the burden of proof.  But there is also a circumstance which, at least to some extent, confirms that Jensen himself did not realise that he had acquired a real publishing right, or in other words, the right to publish later editions. I am referring to the fact that when Jensen's estate a few years later, as far as I remember it must have been in 1864, went into bankruptcy proceedings, Jensen did not give up the publishing rights to these two works in the estate as property belonging to him, which he had been obliged to do if he really believed that he owned the publishing rights to these books. This fact is quite straightforward, and it is all the more significant when it is seen that the publishing rights to various other writings have been given up in the estate, which seem to have been of very little importance, as several of these writings were of such a nature that the publishing rights to them were sold at auction in the estate for quite insignificant sums. The publishing right to one work was sold for 5 shillings, the publishing right to each of two other works for 1 shilling, and the publishing right to one work was even sold for only 70 shillings. Of such great value, however, the publishing rights to the works in question must be assumed to have been, and I do not think that Jensen's remark that the reason why these works were not published was that the publishing rights to them were considered quite worthless can be disregarded. If the right of publication in 1864 was so purely worthless, there is also little reason to believe that Jensen in 1857 and 1858 imagined that it did not constitute any part of what he acquired for the respective amounts of 50 Spd. and 30 Spd.

If one assumes, as stated, that Jensen had not acquired the publishing rights to these writings, the next question after the procedure is whether it can be assumed that the right to publish them in accordance with the ordinance of. 7 Jan. 1741 had fallen into the free in 1871 as a result of the writings then being sold out. In a post of 30 April 1872, Jensen noted that he “in relation to the question of ownership of the works being re-published, with the intention of not applying the exception to which he is entitled, derived from the fact that the publishing rights to both works, when he began to publish them again, had long since fallen into the public domain”. However, since this circumstance, it is said, “makes the justification of what Indst. (Jensen) has done, undoubtedly, he demands that, in the event that the case in the main issue should, against presumption, go against him, the exception be taken into account as grounds for acquittal of any penalty under the Criminal Code, - - - - -, confiscation, compensation and legal costs”. Jensen's claim is thus that these writings at the time when he took the measure to publish them publicly had been sold, or, as it is called in the ordinance, “completely sold out” for so long beforehand that he, like anyone else, had the right to publish them publicly according to the ordinance. As evidence that “Hærmændene paa Helgeland” had already been sold out for a long time, he claimed that in “Norsk Bogfortegnelse”, which in 1870 was published by Botten Hansen and Sigwart Petersen, it is stated that this work was

sold out. Furthermore, he had presented to the District Court a statement from the booksellers Feilberg and Landmark of 5 November 1873 about that they for several years had vainly requested “Hærmændene på Helgeland”, until in October 1871 they were sent some copies of this book, namely of the new edition. After the delivery of the District Court judgement, Jensen has taken a witness statement, during which statements were presented from 3 booksellers, namely Richie, Petersen and Stensballe, which statements, as far as “Hærmændene på Helgeland” is concerned, state that this work was sold out for several years before a new edition was published. These statements are sworn to by Richie and Stensballe under the witness of the matter. I do not believe, however, that this information provides sufficient proof that the book was, as the Regulation states, “completely sold out” at the time in question. The book list in question cannot be given any significance, as there is no information as to which investigations form the basis for the statement that “Hærmændene paa Helgeland” was sold out. The statement from Feilberg & Landmark is contradicted by Ibsen. With regard to the statements made by the booksellers Richie, Petersen and Stensballe, I must firstly note with regard to Stensballe's statement that it has the additional remark that he “remembers having demanded the books in vain”; and this is given as the reason why he can make the statement that the books in question had been sold out for several years. Richie's and Petersen's declarations do not, it is true, contain any similar reason; but there is no reason to suppose otherwise than that these men, too, in making their declarations, rely solely on the circumstance that they remember having demanded or requested the books in vain. As these statements do not contain any further information as to what enquiries have been made as to whether these books were still in the bookshops, I do not think that any weight can be attached to them. It is clear that a testimony of such a nature as these can by no means be given the same importance as a testimony about something that the person concerned has experienced or learnt. This is a fact about which the witness cannot have any definite knowledge unless he has made very careful enquiries, not only here in the town, but from booksellers all over the country, and there is no reason to interpret the statements made in any other way than that the witness had only enquired about the books here in the town. For if such a careful enquiry or demand had been made of the booksellers in all other towns or throughout the country, one may be quite certain that it would have been informed by the booksellers who have given their statements. In a case like this, where it is a question of the author or the former publisher obtaining the right to publish a book, I believe that the strongest demands must be made upon the evidence. It seems to me that, as matters have now developed, it is not too much to ask in such a case that he who wishes to acquire the right to publish a book because it is sold out must secure complete proof that this is really the case, either by issuing a circular to all the booksellers in the country or in some other way; on the other hand, I do not suppose that such loose statements as those made here could be considered sufficient. As an example of these statements being rather superficial, I should also mention that it is said of both books, both “Hærmændene paa Helgeland” and “Fru Inger til Østeraad”, that they had been sold out for several years before new editions were published, which is quite incorrect, as no new edition of “Fru Inger til Østeraad” was published by Jensen, but only of “Hærmændene paa Helgeland”. Later, namely in 1873 and 1874, new editions of both books were published by Ibsen himself at the publishing house Gyldendalske Boghandels Forlag, but it is of course not these editions that are referred to in the statements,

for then they would have no significance, as they would not go far enough back in time.

I have here only dwelt on the information that has been provided regarding whether “Hærmændene paa Helgeland” was sold out. It is, after the present position of the case superfluous to deal with this issue with regard to “Fru Inger til Østeraad”, as there is no longer a question of compensation in connection with Jensen's relationship with regard to this book; the City Court has not awarded Ibsen any compensation in this respect, and no countersuit has been taken from Ibsen's side before the High Court.

I therefore believe that Jensen must be considered to have been unauthorised to publish “Hærmændene paa Helgeland”, and that he thus cannot avoid being sentenced to a fine, confiscation and compensation in this connection as was done by the District Court's judgment. I also assume that the amount of the fine is appropriately determined in this judgement. Thus, on the whole, I come to the same result as the District Court, whose judgement I assume can be upheld, just as Jensen must then be ordered to pay the costs of the trial also in the High Court.

Conclusion:

The judgement of the District Court should stand.

The costs of the proceedings before the High Court shall be paid by the printer H. J. Jensen to Henrik Ibsen with 70 - seventy - Speciesdaler.

Assessor Hallager: I agree with the First Judge in the essentials and the result.

Assessor A. Thomle: Likewise.

Assessor Blich: With regard to the question of whether the Appeal in its time should have been assigned the publishing rights to the writings in question in full, I agree with the first-ranking judge. On the other hand, I do not agree with him that in the present case there should not have been sufficient evidence that the Writings, as stated in Frdng. 7 Jan 1741, had been “completely sold out” for as long as the Regulation requires, before Jensen started the new edition of “Hærmændene paa Helgeland”. According to what the Chief Justice has stated in this respect, if his opinion were to be correct, one could not even stop at demanding that the publisher or the printer had made enquiries in this country, but one would have to demand that he had also contacted all booksellers not only in this country or in the Scandinavian countries, but throughout Europe, perhaps all over the world to hear whether the work had been sold out or not, and even if, in his opinion, they had asked for statements in this respect through the newspapers, one could not be sure that individual copies of the work could be found somewhere, and one could not assume that sufficient proof of this had been provided. I suppose that in the present case one must stop at the regulations for the proof which are generally made applicable; In this respect I think that there can be no question of anything else but that the persons who can best give information as to whether the work exists in the bookshop should be asked to make a statement in this respect, and if this statement is to the effect that the work has not been available in the bookshop for a long time, the first proof that the work is sold out must be considered sufficient. It also seems quite reasonable to me that if one has vainly sought the book in the place where it can be expected to be purchased, namely here in Christiania, where it was published and where the publisher and the most important booksellers live, then one can be fairly certain that it cannot be obtained from a bookseller in a smaller place in this country; Moreover, all booksellers are lately so closely connected with each other that one can be fairly certain that when a bookseller here in Christiania declares that the book is

sold out, one has already received sufficient information that it really does not exist in bookshops in other places either. I assume, moreover, that if even a single copy should happen to be in a bookshop, the work must nevertheless be considered sold out, and the provisions of the Regulation are thus fulfilled. The information provided certainly points in the direction that the work had already been sold out for a long time. I attach great importance to the book list of 1870. In a book catalogue, which is precisely intended to provide information of the nature in question here, one must assume that it also contains a reliable statement of how the situation is, and when it is stated that “Hærmændene paa Helgeland” is sold out, I assume that this is strong evidence that this is also the case. But then there are the statements from other booksellers, Feilberg & Landmark, Richie, Stensballe and Petersen. These declarations state that the work had already been out of the bookshop for several years before the editions published by the Appellant was started. Insofar as the Chief Justice has found in Stensballe's statement evidence that it was not particularly reliable, as Stensballe himself says that he remembers having demanded the books in vain, I, on the contrary, give this sentence an increased weight, as he has not been left alone by what bookshops generally declare when they say that a book is sold out; when they generally use this expression, there is only a presupposition that they must have been informed of it, if it were not so; but Stensballe says: I have personally investigated the matter and enquired where I could get the book, but I did not find it. I thus attach double weight to his statement, because he has personal experience that the book has not been available. With regard to the proof in similar cases, nothing more is required. When it is a question of whether a thing exists or not, it is only required of the person on whom the proof rests that he should bring as witnesses those persons who could be presumed to be able to give information about it, and when they declare that the thing, as far as they know, no longer exists, the proof is considered to be good, since in practice it has always been assumed that it has been necessary for the opposing party to show that what the witnesses have said is not true. I cannot convince myself that anything else should apply in this case. When the allegation was made by the Appellant that “Hærmændene på Helgeland” had been sold off for a long time, no more time had passed than Ibsen must have had perfectly good reason to be able to prove the contrary, insofar as that may be the case. His failure to take any step in this respect thus, in my opinion, further proves the correctness of what I assume to be the case, namely that the work had indeed already been sold out for a long time. I therefore assume that the Appellant must be acquitted insofar as he is charged with having published in print the work in question, and as a consequence I assume that the costs of the proceedings in both courts must be cancelled.

Assessor Manthey: I agree in substance and result with the First Judge.

Extraordinary Assessor, Expedition Secretary Kjerulf and Justitiarius Meldahl: Likewise.

The High Court's judgement was then handed down in accordance with the First Judge's conclusion.