The talking machine world (Jan-Dec 1910)

THE TALKING MACHINE WORLD. 7 IMPORTANT COPYRIGHT DECISION Of Interest to the Talking Machine Trade Throughout the World, Particularly Those Having Relations with Mexico, Recently Handed Down by the Court of Cassation — Suit Brought Against J. Espinosa Who Represented the Columbia Phonograph Co. — Latter Defended Action and Are Entitled to Credit for Sweeping Victory Secured and Which Reverses Ruling of Appellate Court Which Fined Espinosa $750 and Sentenced Hime to 60 Days Imprisonment. As the leading American manufacturers of records have established business relations of importance in Mexico, and this trade is growing with rapidity every year, the appended decision of the Court of Cassation will be of direct interest. European manufacturers will also be concerned in the opinion. The suit was brought against Joaquim Espinosa, manager of the Espinosa Phonograph Co., of the City of Mexico, who marketed the product and represented the Columbia Phonograph Co., General, New York, the latter really defending the action, and to whom credit is due for the victory gained. The opinion of the court is very sweeping, reversing the Trial and Appellate Courts, which had fined Espinosa $750 and sentenced him to sixty days' imprisonment, unless the fine was promptly paid or an appeal taken. There is no appeal from the decision of the Court of Cassation, and thus the criminal proceedings are brought to an end. The matter of whether or not there is any civil responsibility for the sale of copyrighted talking machine records in Mexico, without permission of the owners of the copyright, is now under consideration by the Supreme Court of the Nation, and a decision is looked for any day. The opinion in full follows: Statement of Facts. Considering Firstly: That as the appeal is limited to the first chapter of the complaint because the others have not been legally presented, it is only necessary to examine the judgment of the lower court as far as it condemns Espinosa to a real penalty, on the ground that he is responsible for the piracy of an artistic work under the terms of article 304 of the civil code; and decide whether that sentence made a correct application of the law or not, as affirmed by the appellent in presenting the grievance he complains of in the first chapter of his appeal. Secondly: That the fourth division undoubtedly based its sentence on Espinosa on the accusation presented by the district attorney, who is charged by the law with criminal prosecutions and, as can be seen, it is conceived in th-. following terms: "Joaquin Espinosa is guilty of having traded in Mexico in the pirated works 'Machaquito' and 'Blanco y Negro,' property of Rafael Gascon." The division accepted this accusation, and held it proved (as stated in the second consideration) that the impression of the phonograph discs with ^he music of 'Machaquito' and 'Blanco y Negro' constitutes a real reproduction of those pieces, executed in this case without the consent of the author, and by a different process to that employed by him in the original; also, holding, as proved by the declaration of Espinosa, that he traded in discs and sold them in this city. It concluded with the statement that the case comes fully within the provisions of article 1,204 of the civil code, and that under article 1,233, it is necessary to apply the penalty specified in article 432 of the penal code. These records of the prosecution, which decided the sentence, taken in connection with the pleas presented against them by the appellant in chapter 1 of his complaint, under revision, necessarily lead to a study of these two questions: First — Does the impression on phonograph discs constitute a reproduction of the musical pieces engraved thereon in such manner as to constitute piracy? Second — In such case, does the sale of those discs in itself render the vendor liable to punishment under the Penal Code? Reproduction of Music Defined. Thirdly: That the question raised with respect to the extent of the privileges enjoyed by the authors of literary ■ or artistic works has been much debated by authorities who treat of the subject, and has been the subject of much litigation when the copyright has been taken out; but this diversity of opinions must not call our attention, because it arises from the diversity of legal provisions, and in many cases from the silence or deficiencies in the laws which do not foresee the advance of the arts which might invade those rights; but in order to decide the concrete questions under debate, as studied by the Appeal Court and specified in the first consideration, it is necessary first to state exactly what is understood by reproduction. To begin with, it is to be noted that to reproduce, in the grammatical sense of the word, is to produce again, and this means that the reproduction must be equal to what is produced for the first time; otherwise, if a new or different thing is produced, there will be a new production but not reproduction. , Our law accepts this interpretation, as article 1,182 expressly provides that the proprietor of a literary work has the exclusive right to publish and reproduce, as often as he considers it desirable, the whole or part of the original work; and we at once see that, in such case, the reproduction is understood to be the new publication of the same original work, either wholly or in part. Article 1,145 provides that when an author has assigned his work, and afterwards makes substantial variation in the same, he can publish this corrected work without the proprietor of the original having any right to prevent him; and this proves that in the opinion of the law, there is no reproduction in such case, because the corrected work is not the original. Article 1,199 prohibits the author from producing, by a similar art, the work which he has executed and the ownership of which he has assigned to the person who ordered it made; which leads us to understand that the prohibition does not subsist if he executes it by a different art and doubtless that is because in such case there is not a reproduction of the original work, in the true sense of the word. A Record Not Strictly a Copy Some foreign legislatures have adopted this view, as can be seen in volume 38 of the "Digest of Legislation," by Dalloz, in treating of literary and artistic copyrights; and where this author treats of the different opinions expressed and decisions given as to whether the translation of a work can be considered as piracy, he concludes, in paragraphs 352 and following, with an expression of his own opinion that, in spite of the fact that the translation is substantially the whole of the original work, from its title, its object, its plan, its doctrine and even its expression, that is to say, everything that really constitutes the work, as the language in which it is written is only an accident, it must not be considered a reproduction, and therefore, a piracy, because in the translation there is a new factor, which is the intelligence of the translator. All this demonstrates that the word reproduction in this matter expresses the idea of a new publication of the original work; and, therefore, it may be fairly concluded that the impression of phonograph discs is not a reproduction of the pieces which are engraved; but, furthermore, it must be borne in mind that the impression is not made by copying the piece, but by fixing the sounds which are produced in the execution of the same. For this reason what the disc reproduces is the execution of the piece as it sounded when the impression was taken, and so true is this that if any note is substituted in the execution, any transposition is made or any irregularity, it is recorded on the disc, which for this reason can no longer be said to be an exact copy of the piece, but an exact reproduction of its execution. Incorrect Application of the Law. Fourthly: That according to this theory, articles 1,191 sub-clause IV., 1,196 and 1,201 sub-clause IV. of the civil code, as referred to in the second consideration vof the sentence appealed from must be held incorrectly applied, because as the impression on the discs is not a reproduction of the pieces, they do not come within the provisions of those articles; but, as under our code and under the interpretation given by commentators to similar laws, every piracy implies a civil liability on the part of the person executing it, which resolves itself in_ the payment of loss and damages to the author whose rights have been infringed, as well as a criminal liability which is satisfied by the imposition of a real penalty, the lower court could apply those articles in support of the civil liabilitv, which is not the subject of this decision, as well as of the penal liabilities, with which this decision exclusively deals. From this it results that the incorrect • application here dealt with is that which has been given in the close connection which is claimed between them and articles 1.204 and 1,233 of the civil code, which are the real basis of the sentence. Fifthly: That in its third consideration the Appeal Court says: "That by the confession of Joaquin Espinosa, manager of the Espinosa Phonograph Co., which fulfilled all the requisites of article 207 of the code of penal procedure, to the effect that he had traded in Mexico and sold phonograph discs which contain the pirated pieces "Machaquito" and "Blanco y Negro," it has been fully proved that he committed the piracy which is referred to under article 1,204 of the civil code"; but as we have seen the engraving of the discs does not constitute piracy, the condition required under that article is wanting in this case, and, therefore, article 1,233 of the civil code and articles 432 and 218 of the penal code cannot be correctly applied to the case. No Proof of Piracy Furnished. Sixthly-: That if the provisions invoked by the court helow in imposing the penalty of a fine >:ould not be correctly applied to the case, the result is that such penalty has been imposed contrary to the provisions of article 182 of the penal code, which, therefore, is violated, and gives a reason for the motion for cassation, in acenrdarce with the provisions of sub-clause IV of Article 514 of the code of penal procedure which has been invoked by the appellant. Seventhly : That according to Article 535 of the last cited code when it is considered that cassation will lie, this division must constitute itself into a Court of Second Instance and pronounce the decision which is due; but, in order to comply with this duty in the present case, it is only necessary to take into account the different preceding considerations, by which it has been established. Firstly, that no proof has been furnished that the engraving of phonograph discs does constitute a piracy of the musical pieces so recorded, as there is no real reproduction; and .secondly, that consequently the isolated fact of trading in those discs does not imply the liability specified in article 1,204 of the civil code, and still less one of a penal character, thus deciding the second question, but to this we must add that no proof has been given in the prosecution of an indispensable factor which would establish the penal liability of the vendor of the discs, and which is. that in making the sale he proceeded with malice, because besides proving the fact of the sale, it is also necessary to prove that it resulted in injury to the proprietor of the work, and that it was made with a full knowledge that it violated a right. This requisite is indispensable, if we are to consider the act as punishable in the same way as a fraud is considered an offense, and it requires proof of all its factors. We cannot assume the existence of malice as specified in Article 9, because _ in the event of any infraction having been committed it would not come under a penal but under a civil law. As to the necessity of demonstrating malice in these cases we can refer to what is said by Dalloz in his work, page 495, paragraph 334, and by Carpentier in his work on French law, volume 31, page S91, paragraph 507. and following: Sentence of Lower Court Reversed. Eighthly: That if it has not been proved that the discs which were sold constituted, acording to legal technicism, a pirated work, or that the sale was made with malice, the confession made by the manager of the Espinosa Phonograph Co. that he traded in such discs, is not enough to impose a penalty; because this, at the utmost, is the proof of an unimportant fact, and places the accused under the protection of Article S of the penal code as long as it is not proven that there were circumstances to bring him within the provisions of Article 1,233 of the civil code, and others relating thereto in the penal code, and, therefore, as long as such proofs are not rendered the accused must be acquitted in accordance with Article 203 of the code of penal procedure. For these considerations, and on the grounds stated, it is declared: 1. That the sentence pronounced by the fourth division of this tribunal on the 14th of April, 1910, is hereby reversed only as to the penal part of that sentence, and to which the first chapter of the motion for cassation refers, or otherwise the first and third portions of that sentence. 2. The sentence of May of last year, pronounced by the second investigating judge, is hereby reversed, only in the penai part, in which Joaquin Espinosa, as manager of the Espinosa Phonograph Co. was condemned for the offense of fraud to the payment of a fine of $750 and to a reprimand. 3. Joaquin Espinosa is acquitted from the charge made against him of having traded in pirated works, for which reason it was requested that the penalty for the offense of fraud .should be applied to him. Let it be notified and the records passed to the fourth division with a certified copy of this decision, for legal purposes and the present docket be in due time filed. It was so ruled by unanimous vote of the justices who formed the first division of the Superior Tribunal of Justice of the Federal District, and who subscribe. Ang. Zavalza — Julio Garcia — Arcailio Norma — Angel Zimbror. — F. Lopi'z Roma: — M. E. Mercado. Won't You Have a Lesson in Spanish? It's so easy to learn by the I. C. S. system — and a knowledge of Spanish is so useful nowadays. The I. C. S. system of language instruction by means of the phonograph makes easy the mastering of a foreign language, and appeals with compelling power to thousands. The dealer in phonographs who does not carryT. C. S. Language Outfits is neglecting a quick and sure way to increase his business. The new $35 Language Outfit of the L C. S. is a marvel. It represents the highest art in the teaching of languages, and embodies a method that has won the warmest praise of thousands qualified to speak authoritatively. 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