Application des principes établis dans les chapitres précédens, à quelques questions de propriété li

CHAP. 36: Application of the principles established in the preceding chapters, to some questions of literary property.

There exist between the productions of the mind and the other products of human industry some differences that it is important to observe; for they will serve to resolve some of the principal questions to which literary property gives rise.

From the moment a work is delivered to be printed and put on sale, any person who buys a copy of it acquires, by that very fact, the faculty of appropriating all the ideas, all the sentiments that are expressed therein; she has, with regard to the amusement and instruction that reading can give, all the rights she would have, if she had acquired the entire property of the work.

This faculty of appropriating by study the sentiments and thoughts exposed in a work made public by printing, belongs not only to any person who buys a copy of it; it belongs to all those who wish to take the trouble to go and read it in the libraries where the deposit of it has been made.

The pleasures or profits that one can draw from any other kind of property cannot thus be divided or multiplied; any advantage that a person derives from a piece of furniture, a house, a field, generally deprives the proprietor of this piece of furniture, this house or this field of an equal advantage; all that profits one, is almost always lost to the other [^266].

Thus, although the principal object of a literary work is the instruction or the pleasure that reading gives, the person who has the property of it has, in this respect, no advantage over the persons who have acquired copies of it; it can even happen that, without divesting herself of her property rights, she has not reserved for herself the disposition of a single copy.

The proprietor of a material object, of a piece of furniture or a house, can subject his property to all the changes he judges suitable; he can, without infringing upon anyone's rights, alter or even destroy it; he can, according to the expression of the jurisconsults, use and abuse it, without having to fear any legal proceedings.

The author of a literary composition can also dispose of it as he sees fit, so long as he has not published it; it is in his power to modify it to make it better or worse, or even to annihilate it completely; whatever the manner in which he disposes of it, no one will be received to bring an action against him.

But at the instant a work has been made public, and copies of it have been sold, it is no longer in the author's power to destroy it; he can, in new editions, correct his errors, modify his style; but there his power is limited; from the moment he himself has ceased to exist, his work becomes invariable; the person to whom he has transmitted the property of it can neither destroy nor alter it.

If the proprietor of a work made public has the power neither to annihilate it, nor even to modify it, and if, with regard to the instruction or amusement that one can derive from it by reading, he has no more advantage than the person who possesses a single copy of it, in what then does his property consist? It consists solely in the faculty of multiplying copies of it, and of selling them for one's profit, and in the power to prevent others from enriching themselves by the same means. His property rights are not, moreover, so inherent in himself that they cannot be separated from him; they are susceptible of being alienated or transmitted by inheritance, like any other kind of goods.

It follows from these facts that the person to whom the public authority guarantees, for a certain number of years, the exclusive enjoyment of a work, has during that time exactly the same rights she would have if her property were entirely and forever guaranteed to her. If it were to happen that literary properties were put on the rank of all others, if they were transmissible from generation to generation, like any other kind of goods, the questions to which they would give rise would not be different from those they have given rise to under the current laws: to arrive at a good solution, one would not need to resort to other principles than those by means of which they have already been resolved.

The circumstance that the laws that determine the duration of the guarantee accorded to literary property are without influence, either on the nature of the questions to which this property gives rise, or on the manner in which they must be resolved, permits me to examine here the principal of these questions and the solutions that have been given to them, without going beyond the limits I have prescribed for myself, nor changing the nature of this work.

Before being delivered to be printed and put on sale, a literary composition exists in manuscript; and, in this form, it is the product of human industry like a printed work. However, the law of 19 July 1793 grants an indemnity to authors whose works have been counterfeited only when they have themselves delivered them to be printed and published; it is silent on the printing of manuscripts, done without the authorization of the authors. Must one conclude from this silence that a manuscript does not belong to him who composed it, or that at least he can claim only its material? He who succeeded in seizing it, and who took a copy of it, would he be held to restore only the original? Could he, after having made this restitution, sell copies of it for his profit?

These questions are of little embarrassment for men who recognize that every production is the property of him by whom it is formed, and who think that literary works must be put on the same rank as all other properties. In admitting, in effect, that each is proprietor of the values to which he gives birth, and that no one can legitimately enrich himself by seizing the labor of another, the circumstance that a writing has or has not been published changes absolutely nothing in the question. The principles that protect all properties in general are applicable to a manuscript work as to a printed and sold work; and it is impossible to see why infringements of the former would be more licit than infringements of the latter.

If the laws that protect property in general were not applicable to manuscript works, there would be no way to deliver them with safety to be printed, because the author, in losing possession of them, would by that very fact lose all his rights. A man who, without having obtained the consent of the proprietor, permitted himself to deliver to be printed a manuscript that had fallen into his hands, and to sell copies of it, would therefore render himself guilty, according to the general principles of right, of an infringement of property. He should be condemned first to restore to the proprietor all the profits he had made, to repair, secondly, the damages he had caused him, and finally to suffer the penalties that those who knowingly usurp the property of others deserve [^267].

The question relative to the property of manuscript works, so simple and so easy for those who admit in principle that every product belongs to him who creates it, is not so easy for those who consider as a monopoly the guarantee given to authors. If, by the nature of things, every person, in effect, had the right to have printed and to sell for his profit a work that had fallen into his hands; if the laws made to guarantee to authors the exclusive sale of their compositions had created a privilege for their profit, by infringing upon the rights of all, it would follow that these laws should be restricted to the special cases they have provided for, and that no one could claim but the protection they have formally given. Now, the laws made in France, since 1793, on literary property, have had for their sole object to repress the counterfeiting of works made public by means of printing.

Article 4 of the law of 19 July 1793 provides, in effect, that any counterfeiter will be held to pay the true proprietor a sum equivalent to the price of three thousand copies of the original edition; but, if no original edition exists, that is to say if the author has never delivered his work to be printed, will he be without right against the one who has stolen a copy of his manuscript from him, and who has had it printed and put on sale? Article 5 of the same law, which determines the indemnity to which the distributor of the counterfeit edition must be condemned, presents the same difficulty; it fixes this indemnity at a sum equivalent to the value of five hundred copies of the original edition. One therefore always supposes that it is a matter of a work that the author has himself published or had published.

The action that this law grants to the author whose work has been printed and put on sale without his consent is subordinated to a condition: it must be preceded by the deposit, in the Bibliothèque Nationale, of two copies of the edition that he himself has had printed; but, if there has been no publication on his part, and if consequently no deposit has been made, will he not be admitted to exercise any legal action? will he who has purloined his manuscript be able to sell copies of it with impunity, and without being held to pay him any indemnity? Yes, if the law of 19 July 1793 created privileges, established monopolies; no, if it recognized rights; if it limited the time during which they could be exercised, and if the difficulties it has not foreseen must be resolved only by the general principles of right.

The dispositions of the Penal Code provide for the case where a work has been printed or reprinted without the consent of the author or the proprietor, and that where a counterfeit made abroad is introduced into France; but there is a violation of property that they have not foreseen: it is that of which a person would be guilty who had printed abroad a copy of a manuscript work belonging to another person, and who introduced copies of it onto our territory. Article 472 of this Code, which qualifies as an offense of counterfeiting the introduction onto French territory of works counterfeited abroad, gives it, in effect, this qualification only for works that had already been printed in France. There would therefore be no way to reach, by our laws, him who, after having made abroad an edition of a not-yet-printed work of which he had purloined a copy from the proprietor, introduced copies onto our territory, unless, however, one were to prosecute him as guilty of fraudulent subtraction.

But could one not prosecute, as guilty of theft or of counterfeiting, in the country where the work had been printed and put on sale, the individual who would thus publish abroad, without the author's authorization, a manuscript of which he possessed a copy? The solution to this question depends on the dispositions of the laws of the people among whom it would be agitated. An Englishman who stole a manuscript from one of his compatriots and who went to publish it on the territory of the United States of America, could not be prosecuted before the judges of this latter country, since the American laws grant no protection to literary property when the proprietor is a foreigner, and he does not reside on the national territory. If the same individual came to have the work printed and sold in France, I do not doubt that he would be condemned to damages toward the author, if the latter had the means to prove his property; since our laws guarantee to foreigners the same rights as to nationals, for those of their works that have not been published first outside our territory.

Are the letters that a person addresses to another the property of him who writes them or of him who receives them? To resolve this question well, one must distinguish various kinds of letters. The writings that one puts in this form, to give them a particular kind of interest, like the Provinciales, the Lettres persanes and a host of others, must not be distinguished from any other kind of works. Letters that a person addresses to another on subjects of literature or science, such as, for example, the Letters of Euler to a German Princess, seem at first to present a little more difficulty. However, if one considers both the intention of the person by whom similar letters are written, and the intention of her to whom they are addressed, it is impossible to see in them anything other than simple lessons. He who writes them proposes only to instruct or to amuse the person to whom he addresses them; and the latter intends to receive only what is truly given to her. There is therefore no transmission of literary property properly so-called: there is alienation only for a single copy [^268].Letters to which business or friendly relations give rise cannot be considered literary works. Those who write them intend neither to publish nor to sell them; they intend even less for the persons to whom they are addressed to make them an object of speculation. There are few people who would wish to maintain friendly correspondences in writing under the condition that all their letters would be printed and delivered to the public. If, therefore, it happened that an individual delivered to be printed confidential letters that had been addressed to him personally, or that had fallen into his hands, the person who had written them would certainly be justified in demanding their suppression. Such a publication would be considered, not as an infringement of a literary property, but as a breach of trust, as a violation of the tacit contract that any friendly correspondence supposes. It is by considering the publication of private and confidential letters from this point of view that the courts of justice of England have forbidden it [^269].

A person to whom one addressed, for her amusement or instruction, letters on literature or on the sciences, would be proprietor, we have said, only of a copy of these same letters, because he who gives lessons on any subject whatsoever does not intend, in any manner, to alienate the property of a work. For the same reason, those who receive, even in a public place, oral lessons from a professor, cannot, after having collected them, have them printed and sell them without his authorization. To teach a science to men who have the desire to learn it, and to sell a work to a man who trades in books, are, in effect, two entirely different things. He who receives a lesson that he has paid for or that others have paid for him, can draw from it all the instruction it contains, just as he who pays for his seat in a theater can draw from the performance to which he is witness all the pleasure it can give. But the former has no more right to have printed and to sell the professor's discourse, than the latter has the right to have printed and to sell the tragedy or the musical score he has heard.

An orator has over his speeches, a preacher has over his sermons, the same rights as a professor over his lessons; everyone is free to go and hear them, and to profit from them in terms of instruction; but no one may, without the author's consent, make them an object of commerce. Bossuet and Massillon were proprietors of their funeral orations and their sermons in the same capacity as Corneille and Racine of their tragedies: in delivering them, they gave to everyone the right to listen to them, and to profit from their lessons; but they gave to no bookseller the right to have them printed and to sell them.

The rights that an author has, as proprietor, over the works he has published, consisting solely in the faculty of having them reprinted in whole or in part, and of selling copies of them, it follows that the only advantage that everyone is forbidden from deriving from them, is that which results from reprinting and sale. Any reprinting, even partial, of a work without the author's consent, is therefore an infringement of his property; it is sufficient that the fragment reprinted and delivered to the public be considerable enough to have a value. If, on the one hand, the author's rights must not be an obstacle to the progress of the human mind, on the other hand, no one must seize his labor to make it a means of enriching himself.

A writer who, to give value to a work of his composition, were to include in it a considerable fragment of a work belonging to another, and who, by this means, were to diminish the value of the latter, would render himself equally guilty of infringement of property, whatever, moreover, the relative importance of the part that was his own. The editor of an encyclopedia, for example, who were to seize a particular treatise belonging to another writer, and who, without his consent, were to include the greater part of it, would render himself guilty of counterfeiting. If one were to judge that in such a case, property is not violated, a bookseller could incorporate into a vast dictionary of sciences and arts all the particular treatises that belong to the best writers [^270].

The insertion, in a review or in any other periodical or non-periodical collection, of part of a work, is also a counterfeiting, if the part one has taken is considerable enough to dispense with the reading of the original. Journals are authorized, doubtless, to report on the new writings that are published each day; but they are not permitted to appropriate them, while appearing to give only an analysis of them [^271].

It is no more permitted to counterfeit a work of little extent than to counterfeit a very considerable one; the author of a romance, of a fable, can have his property respected, just as the author of an epic poem can have his respected [^272]. A newspaper article belongs to him who is its author or who buys it, in the same capacity as an encyclopedia belongs to the scholars who composed it. The journalist who were to make his journal with articles taken from other journals would therefore infringe upon their property, and could be prosecuted as guilty of counterfeiting [^273].

The writer who makes notes on a work that has fallen into the public domain, does he have the property of these notes, in such a manner that no one can join them, without his consent, to another edition of the same work? This question has presented itself several times before the courts of justice of England, and it has been resolved in favor of the authors of the notes [^274]. It would be difficult to see on what one would found a contrary decision, unless one wished to forbid making annotations on works that have ceased to be in the private domain [^275].

But if one cannot, without infringing upon property, seize the work of another to sell it, nothing is more licit than to use it to spread enlightenment or to combat errors. A writer who were to make, for example, an abridgment of a history, a voyage, or a treatise published by another, would not render himself guilty of counterfeiting, if he engaged in a genuine intellectual labor; if he summarized, in a language that was his own, the facts and thoughts of the principal work. A conscientiously made abridgment would be a property as inviolable as the work on which it had been made. But one could not consider as an abridgment the reduction of a work to smaller dimensions, if this reduction were made by the suppression of a certain number of passages [^276].

The translation of a writing into another language has not been considered a counterfeiting either, although it can, however, diminish the sale of the original work. The translator seizes the facts, the observations, the method of the author; but he renders them in a language and in a style that are his own. His translation is therefore his property; but this property is not an obstacle to others exercising themselves on the same subject, and making new translations of the same work [^277].

The writer who treats a subject therefore does not ravish from anyone the faculty of treating it on his side; a hundred writers can write simultaneously or successively on the history of France, on morality, or on physics; and although all work from the same documents, recount the same facts, or describe the same phenomena, none can complain that the others are infringing upon his property, if none copies the work of another.

There are, however, subjects that it is impossible to expound in two ways: such are books of calculation, tables of interest, tables of logarithms, chronological tables, almanacs, dictionaries, and certain compilations. He who first composes a work of this kind, who publishes, for example, a table of logarithms, does he take from every other person the right to make a similar work? If everyone can make an exactly similar work, will it not result that the property of none will be guaranteed, or that at least it will almost never be possible to ascertain the infringements that are made against it?

When a work of this nature has been composed and published, and it is impossible to make, on the same subject, a work that is different without being inexact, it seems that the property of the work must entail the property of the subject. The recognition of this kind of property would constitute, it is true, a sort of monopoly; but it would not be an obstacle to the progress of the human mind. The appropriation, by labor, of a subject that cannot be treated in two ways, would be analogous to the appropriation of a parcel of land which, being occupied by no one, would have become the property of the first who exploited it. One could not say that there is a monopoly in the first case, without recognizing that the monopoly also exists in the second; for the occupation is as exclusive in the latter as it could be in the former.

However, the jurisconsults who admit the principle of occupation when it is a matter of material things, do not admit it for subjects that are of the domain of the intelligence; they thought, doubtless, that if the property of the subject were inherent to the property of the work, the author could put on his writings a price that would be out of proportion with the value of his labor. A calculator can therefore compose and publish a table of interest, a table of logarithms, and other books of the same kind, although perfectly similar works already exist. It will suffice, for these writings to be his property, that they be truly the result of his labors; but he would be guilty of infringement of property, if, instead of doing the calculations himself, he had simply copied them [^278].

We have seen that, when an author has published a writing, a second can, without infringing upon the property of the first, compose another on the same subject and under the same title; but could one equally give to a journal or to any other periodical writing, the title of a journal or a periodical writing already existing? It has always been judged that one could not seize the title of a journal to found a new one, and this with reason.

There are, in a journal and in any periodical work, two entirely distinct things: the writings already published, and the reputation and the clientele that attach to the title. The writings already published are a property of the same nature as all other literary compositions; it would be no more licit to reprint and sell them without the authorization of the proprietors, than to print and sell other works. The reputation and the clientele that attach to the title are a commercial property, much more than a literary property. The title is, for the proprietors of the journal, what a trademark is for a manufacturer, which serves to distinguish the products that have come out of his manufactory from those that have a different origin. The usurpation of this title is therefore, properly speaking, neither a counterfeiting nor a plagiarism; it is the usurpation of a reputation and a clientele that have almost always been laboriously and dearly acquired. This subject, moreover, belongs less to this chapter than to the chapter in which commercial funds were discussed [^279].

Among the various motives on which is founded the guarantee given by the laws to all property, there are two that no one could reasonably contest: the first is to encourage men who can devote themselves to some labor to form new properties by giving them the certainty of enjoying and disposing of them at their will; the second is to determine men who are already proprietors to watch over the conservation of their goods, in the hope of transmitting them to their children or to the persons who are dear to them. One therefore always supposes, when one guarantees to each the products of his labor, that it is important to humanity that these products be formed and conserved; but, if a literary production offended good morals, if it were to bring disorder and trouble into society, could the author invoke the protection of the laws to exclusively sell his work? Would not the guarantee that would be given to him tend to encourage the production of a kind of writing whose existence it would be good, on the contrary, to prevent?

When governments have limited the time during which an author or his heirs could sell his work, they have had principally for their object to encourage letters and sciences; they wished, it is said, that after a certain time of enjoyment, all writings would fall to the rank of common things, so that everyone could reprint them without paying anything, and that they would be sold cheaper to the public. The simple refusal to guarantee to a writer the property of a work whose tendency one judged to be vicious would therefore have principally for its effect to dispense printers and booksellers from paying him any author's right, and consequently to spread a greater number of copies of his writings. One would facilitate, at least for a time, the sale of a bad work, by putting the public in a position to obtain it at a low price, in order to take away from future writers the temptation to produce similar ones.

The refusal to guarantee to an author the property of a dangerous work cannot therefore be considered as a sufficient means of preventing or repressing the composition and sale of bad writings; it would be necessary, moreover, that the printers and booksellers could themselves derive no benefit from the counterfeiting, and that, for their part, they should find in the laws no guarantee for the reimbursement of their advances or their labors; these means would even be effective and without danger only insofar as they were combined with a good criminal law.

If a work offends good morals, if it contains defamations, or if it provokes the commission of punishable acts, the author and his accomplices must be put on trial and punished. If it is reprinted and put on sale, the authors of the new publication must suffer the same penalties as if they had composed it; but they cannot be punished for having infringed upon the property of another. The author whose work has been counterfeited has the right to demand only the reparation of the damage that has been caused him, and this damage is always in proportion to the number of copies whose sale the counterfeiting has prevented. But, when he himself cannot sell copies of his work without rendering himself guilty of an offense, he cannot be admitted to demand an indemnity from those who have prejudiced the sale by committing the offense themselves.

When the publication of a work can give rise to no proceedings against the author or against the bookseller who publishes it, and when, consequently, both can sell copies of it without offending any law, there would be grave dangers in recognizing for the courts the faculty of refusing the guarantee that the laws give to literary property, especially when questions of property are judged neither according to the same forms, nor by the same judges, as questions of culpability.

In France, for example, it belongs only to the jury to decide whether the publication of a writing is or is not punishable; jurors alone are competent to pronounce on the moral tendency of a work. The party who complains or who accuses is held to submit to certain forms; it must articulate in a positive manner the facts that give rise to the prosecution, and characterize the offenses of which it complains. It is only insofar as it submits to these obligations that the accused party has the means to defend itself.

Questions of literary property are judged, on the contrary, by permanent magistrates, elected by the government, and without jurors. The question that is debated between the author or his representative and the counterfeiter does not bear on the moral tendency of the work; it bears on the identity between the original edition and the edition that is claimed to be a copy of it. The judges who would stray from the point submitted to them, to pronounce on the tendency of the writing that gives rise to the debate, would exceed the bounds of their competence. They would condemn an author or an editor on an accusation that had not been articulated, and without having put them in a position to defend themselves.

In England, where jurors are called upon to pronounce on questions of property as on questions of culpability, the danger is less grave; however, there are always some inconveniences in confusing matters that have no relation between them. The guarantees that exist when it is a matter of the punishment of an offense, and those that the laws give in civil trials, are not exactly the same; jurors, moreover, decide much more easily to refuse the protection of the laws to a property whose value they do not always know how to appreciate, than to declare a man guilty of an offense. The courts of justice have, moreover, been little struck by this inconvenience; for they have never hesitated to refuse all protection to works that have appeared to them contrary to morality [^280].

The judges, in refusing all guarantee to works contrary to morals, have not concealed from themselves that their circulation would be more considerable, since the editors would be dispensed from paying anything to the authors; but this consideration has not stopped them.

“It is very true,” said Lord Eldon, “that the refusal of the court to stop malicious publications may have the effect of multiplying them; but I answer to that that, sitting here as judge of a simple question of property, I have nothing to do with the nature of this property, nor with the conduct of the parties, except as to their civil interests [^281].”There is one case in which the magistrates grant an author of an immoral work an action to prevent its counterfeiting: it is when he reproaches himself for having published it, and desires to suppress it.

A law that prolongs the time during which an author can exclusively sell copies of his works does not apply only to writings that are not published at the moment of its promulgation; it applies to all those that have not yet fallen into the public domain [^282]. When the author has alienated his works, the increase in time granted by the law profits the acquirer and his heirs [^283].

If, on the one hand, one can say that the prior laws guaranteed them, for a determined time, only under the tacit condition that at the expiration of this time, everyone could freely reprint them, one can say, on the other hand, that the authors were not free to make conditions, and that the law that gives the guarantee recognizes a right and does not create it. English jurisprudence and French jurisprudence are uniform in this regard [^284].

There is a question that pertains more to international law than to the particular law of each people: it is that of knowing whether it is in the interest of all men that the property of a work be protected only in the country where its publication was first effected. An Englishman who came to publish his writings on our territory, before having had them printed in any other country, would enjoy, among us, for the sale of his work, the same rights as if he were French; but our laws would not guarantee him the property of it, if he had first published it in a foreign country. A Frenchman who first published his writings in Belgium or in England would lose the property of them in France, even if he came immediately to make a second edition there.

It is difficult to properly motivate such dispositions: each government, in guaranteeing to authors only the works published under its dominion, has doubtless claimed to give encouragement to the art of printing and to the book trade; but would the encouragement not have been the same if one had put more or less high duties on works printed abroad? If a work is to be printed in Brussels, what does it matter to French printers and booksellers that it be so for the profit of a foreign counterfeiter rather than for the profit of the author, their compatriot? The priority that a people obtains over others for the publication of a work assures it advantages so small and even so uncertain, that it is not easy to see why governments have attached so much importance to it [^285].

The refusal that governments make to guarantee the property of works that are not first published on their territory does not cause great prejudice to large nations; but it harms small ones a great deal. A writer who publishes his works in France, in England, or in the United States, can sell a considerable enough number of copies to be indemnified for the sacrifices he has made. He who would publish his in Geneva, in one of the small states of Italy or Germany, would not be sure of selling, in the only country where his property would be protected, a number of copies sufficient to pay the costs of printing. The various States of the American Confederation guarantee to all the members of the Union the property or at least the temporary enjoyment of their works, whatever the State in which the publication was made. This is an example that the peoples of Italy, Germany, or Switzerland will doubtless one day follow. As for the great nations, they will for a long time have other interests to regulate than those of letters and sciences.

Most questions of counterfeiting or plagiarism bear on points of fact, and belong less to the domain of science than to that of conscience. One can establish in this regard only a few general rules: it is for the jurors or the magistrates to make a wise application of them. “The principle that must serve as the basis for our decision,” said an English judge, Lord Mansfield, “is of great importance for the country. We must take care not to throw ourselves into two equally prejudicial extremes: one would be to deprive of the fruit of their labors men of talent, who have consecrated their vigils to the interests of society; the other to stop the progress of the arts and to deprive the world of improvements. The law that guarantees to authors the rights they have over their works protects them from the plagiarism of language and opinions; but it does not forbid writing on the same subject. If it is a matter of history, for example, a man may report the same events in the same order of time; if it is a matter of dictionaries, he may give the interpretation of the same words. In all these cases, the question of fact submitted to the jury is: whether the change is colorable or whether it is not. For there to be counterfeiting, the similarity must be such that one can reasonably suppose that one work is only the transcription of the other, and nothing but the transcription [^286].”

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Notes

[^266]: These propositions admit of some exceptions. The houses that surround a beautiful garden profit from the advantages of the view and the healthfulness of the air, without causing any loss to the one who is its proprietor. [^267]: The name and renown of a person are, for him, a property, which it is no more permissible to infringe upon, either by usurpation or otherwise, than any other kind of property. A person could not therefore legitimately exploit the name or reputation of another, to enrich himself, by attributing to him works that the latter had not composed. Thus, a bookseller who had published Memoirs under the name of a famous personage (Fouché, Duke of Otranto), to whom they did not belong, was condemned, upon the prosecution of the son of the alleged author, to deposit the entire edition at the registry of the court to be destroyed, or to pay to the prosecuting party, as damages, five francs for each of the copies that were not produced.—Decree of March 20, 1826, Royal Court of Paris, 2nd chamber. -J.-B. Sirey, vol. XXVII, 2nd part., p. 156 and 157. [^268]: Richard Godson, Practical treatise on the law of patents for inventions, bk. III, ch. II, p. 224-225. [^269]: Ibid, 225-227. It should not be concluded from this that a person does not have the right to publish, as proof or as means of justification, letters that he has received. [^270]: The editor of an English encyclopedia had inserted a considerable part of a Treatise on the Art of Fencing (75 pages out of 118). Brought to justice as guilty of infringement, he was condemned. R. Godson's Practical treatise, bk. III, ch. III, p. 233. [^271]: This question has been presented several times in England, and it has always been resolved in the same sense. R. Godson's Practical treatise, bk. III, ch. IV, p. 246-247. - Judgment of June 8, 1830, court of the Seine; J.-B. Sirey, vol. XXX, 2nd part., p. 162. [^272]: R. Godson's Practical treatise, bk. III, ch. V, p. 280-281. -Joseph Chitty, Treatise on the laws of commerce and manufactures, vol. II, ch. XII, p. 241. [^273]: Decree of October 28, 1830, Court of Cassation, criminal section; J.-B. Sirey, vol. XXXI, 1st part., p. 568. [^274]: Joseph Chitty, Treatise on the laws of commerce and manufactures, vol. II, ch. XII, p. 242.-R. Godson's Practical treatise, bk. III, ch. III, p, 242-245. [^275]: The infringement of an annotated work would give rise to damages only for the value of the notes, if the work had fallen into the public domain. —Decree of September 4, 1812, Court of Cassation. -J.-B. Sirey, vol. XXI, 1st part., p. 266. [^276]: R. Godson's Practical treatise, part. III, ch. III, p. 238-240. -J. Chitty, Treatise on the laws of commerce and manufactures, vol. II, ch. XII, p. 242. [^277]: Ibid, p. 241-243. [^278]: R. Godson's Practical treatise, part. III, ch. III, p. 228-237. To seize collections and compilations that are not simple copies, that have required, in their execution, discernment, taste, science, and the labor of the mind, is to commit the offense of infringement, even though the author has remained anonymous. Decree of December 2, 1814, Court of Cassation. J.-B. Sirey, vol. XV, 1st part, p. 60. [^279]: R. Godson's Practical treatise, part. III, ch. IV, p. 268-271. [^280]: R. Godson's Prac. treat., bk. III, ch. I, p. 212-213. [^281]: R. Godson's Practical treatise, bk. III, ch. I, p. 213-214. [^282]: Ibid, p. 210. - J. Chitty, Treatise on the laws of commerce and manufactures, vol. II, ch. XII, p. 240. [^283]: J. Chitty, Treatise on the laws of commerce and manufactures, ch. XII. R. Godson's, p. 211. [^284]: Most of the transitional questions to which the laws on literary property have given rise have been treated by M. Merlin, in his Questions de droit, and in his Repertoire of Jurisprudence, under the words: INFRINGEMENT and LITERARY PROPERTY. [^285]: The author who has published a work in a foreign country, and then comes to have it reprinted in France, is not permitted to prosecute infringers, even when this work has been inserted into a new work that has not been published outside of France. Decree of November 26, 1828, Royal Court of Paris, chamber of correctional police. J.-B. Sirey, vol. XXIX, 2nd part., p. 6. [^286]: R. Godson's Practical treatise, bk. III, ch. IV, p. 294.