International > Committee on Intellectual Co-operation

— 2 —
compensation for these sufferings by developing the laws regulating these intellectual rights in
such a way that the resulting progress would be decisive, fruitful and beneficial to humanity.
On the other hand, it is evident that the more effective the League of Nations can prove its
authority in this sphere to be, the wider and more extensive will be the approbation which it
will arouse in all the intellectual circles of the world, where there is undeniably a certain scepti¬
cism, we might even say disenchantment, in regard to the League. The task which we propose
would therefore constitute an appropriate and effective means of propaganda in circles at present
in little sympathy with science, but which it is of great importance to gain to our cause.
(See La protection internationale de la propridtd intellectuelle et la guerre mondiale
a collection of documents published by the Bureaux Internationaux of Berne ; Berne, 1919.)
§ 2. THE METHOD.
It is of great importance that we should avoid questions of pure terminology. The scientific
world, it is clear, is still very far from being agreed on the matter, and discussion is not unlikely
to lead to serious difficulties. It proved, at the very outset, an almost fatal stumbling-block to the
Convention of Berne of 1886, the French advocating the term “literary and artistic property”
{propriete litteraire et artistique) as against the term “author’s rights” (droit d'auteur) proposed
by the Germans. The situation was only saved by the adoption of the intermediate formula
“authors’ rights in their literary and artistic works” (droit des auteurs sur leurs oeuvres litteraires
et artistiques), which occurs in the first article of the Convention. We cannot, therefore, do other¬
wise than agree with the rapporteur of the Italian law, Antonio Scialoja, who, despite his own
firmly-established and clear opinion in the matter, expressly declares, in his admirable Report,
that he intends to refrain from attempting any definition of the rights to be protected or from
determining their legal nature. Let us, therefore, on the above analogy, simply use the term:
“rights of men of science in their scientific works or discoveries”, or, as we have expressed it, for
the sake of brevity: “scientific property”, thus distinguishing it from literary and artistic property
and from industrial property. For the sake of still greater brevity, we may include the three separate
types under one common term: intellectual property. As was remarked by Eugene Pouillet (in his
preface to the first edition of his famous Theoretical and Pratical Treatise on Literary and Artistic
Property, 3rd edition, revised by MM. Maillard and Coro, Paris 1908, p. 9), this title comprises
the rights which the law recognises as vested in the author in respect of the products of his brain,
whether they be of the nature of an industrial invention or of a literary or artistic work. It is,
moreover, as we have noted above, the terminology adopted by the Berne Bureaux.
Further, it is, for various reasons, important that we should exclude all questions of pure legal
theory.
In the first place, there is no branch of legal science in which opinions are more varied or more
widely divergent. We are still far distant from the time when we can flatter ourselves that we have
arrived at a final and united opinion in regard to the determination and classification of the rights
which the law recognises to be vested in the artist, the author or even in the inventor. It would
therefore be dangerous to imagine that it would be possible to build a solid structure of law on the
shifting sands of theory.
The legislator who deduces his laws from theoretic premisses, instead of obtaining them by
induction from the circumstances of life, works in vain. Good laws, as was said by the sages of old,
should arise “rebus ipsis dictantibus et necessitate exigente”) — or yet again, “lex impzrat non
docet”, that is to say that it is not incumbent on the legislation to give definitions. Although we
are not here acting as legislators, our labours are preparatory to a work of a legal character, and
since they partake of its nature, they should be subject to the same rules.
In order to prove the truth of these assertions, it will suffice to recall that the tyranny of
traditional conceptions, inseparable from the classic definition of property rights, for a long time
placed the most serious obstacles in the way of the recognition of artistic, literary and industrial
property. Josef Kohler (Lehrbuch des Patentrechts, § 1, No. VII, Text book on Patent Rights)
regarded the protection which was formerly accorded in Germany to inventors as being insufficient,
in comparison with what had been done in England, for example, since the date of the celebrated
Statute of 1623, or in France since the legislation of the Revolution, which Kohler himself character¬
ises as grandiose. German inventors had-therefore to go to England or elsewhere to secure protec¬
tion. Pilenko, a Russian author (Das Recht des Erfinders, Rights of Inventors, translated from the
Russian by Augustin and annotated by Siebenburgen, Berlin 1907, p. 78), considered that he had
succeeded in proving that the reason of this inferiority lay herein, that, while France had arrived
at the desired destination by a stroke of the pen and England by the incomparable practical
sense of her jurists, Germany was, impeded from advance and, as it were, overweighted by excess
of thoroughness (Grundlichkeit) in her authors, who were too scrupulously attached to the
traditions of Roman Law.
We may here, with advantage, mention a very recent example, from which we shall later
draw some very profitable deductions.
The last word of the men of science appears to have been said, in the course of the lively and
celebrated controversy on the legal character of author’s and inventor’s rights, by the two eminent
professors of the University of Berlin, Otto Gierke and Josef Kohler, whose deaths the world of
science has recently had to mourn.
This controversy still forms the basis of all constructive theory in the matter, as may be seen
in the most recent work of a German specialist, Professor Allfeld “Copyright and Patent Law,