of the ways of property acquisition. After the clarification of acquisition of proper- ty over mixed goods (confusio, comixtio), the Code explains similar combinations in regard to immovable property. If in the case of a mixture of two or more mov- able goods, the fundamental presumption is that owners of these goods become co-owners of the new mixed good, the so-called copyrights are mentioned in the part which deals with presumptions relating to immovable property. The exam- ple which the author refers to in the subsequent text is the example of a man who builds a building on his land using his own or someone else’s materials, what is a source of the principle superficies solo cedit (Sandars, 1876:173).
Having considered the mentioned ways of acquisition of property, the Justini- an’s Institutes provide two key articles that had an enormous influence on the sub- sequent development of the so-called “copyright”.
“Written characters, although of gold, accede to the paper or parchment on which they are written, just as whatever is built on, or sown in, the soil, accedes to the soil. And therefore if Titius has written a poem, a history, or an oration, on your paper or parchment, you and not Titius, is the owner of the written paper. But if you claim your books or parchments from Titius, but refuse to defray the cost of the writing, than Titius can defend himself by an exception of dolus malus: that is, if it
was bona fide that he obtained possession of the papers or parchments.
If a person has painted on the tablet of another, some think that the tablet ac- cedes to the picture, others that the picture, of whatever quality it may be, accedes to the tablet. It seems to us the better opinion that the tablets should accede to the picture; for it is ridiculous that a painting of Apelles or Parrhasius should be but that accessory of a thoroughly worthless tablet. But if the owner of the tablet is in possession of the picture, the painter, should he claim it from him, but refuse to pay the value of the tablet, may be repelled by an exception of dolus malus. If the painter is in possession of the picture, the law permits the owner of the tablet to bring a
utilis action against him; and in this case, if the owner of the tablet does not pay the
cost of the picture, he may also be repelled by an exception of dolus malus; that is, if the painter obtained possession bona fide. If the tablet has been stolen, whether by the painter or anyone else, the owner of the tablet may bring an action of theft” (Sandars, 1876:177).
As it may be seen from the above paragraphs, letters and signs form an integral part of the matter on which they are written and immediately become property of the owner of that matter (paper or parchment). In that regard, aparallel has been made with construction materials installed into a building on anotherman’s land or to plants planted into someone else’s land or in short to a movable property build into an immovable property (irrespective of the fact that both paper and parchment are by themselves movables).
In the case of a picture, the presumption is reverse. Here the tablet (matter) ac- cedes to the picture because it is presumed that the picture has much bigger value than a “completely worthless tablet”. What is interesting here is mentioned lawsuit,
utilis actio, which is not based on property rights of the tablet owner but on the
principle of justice (equity). Namely, a direct property lawsuit is available only to the painter who owns the painting together with the tablet. He is entitled to rei vin-
dicatio. But, a former tablet owner may in a certain way count that the tablet is his,
but only to make the painter pay for the value of the tablet. The utilis actio lawsuit served that purpose.1
This kind of regulation had far-reaching consequences on subsequent devel- opment of copyrights. The work must have a material form (book, parchment) and since that moment becomes a good that may be owned as in the case of any other goods. With one specific feature, the material on which it is written to is treated as immovable property.2
What is an additional specific feature of the Justinian Institutes is a division of things into corporal and incorporeal. Under Chapter II of the Institutes, corpo- ral things are those which by their nature may be touched, something material (as land, slave, gold, silver, clothes, and a large number of other things), while incorpo- real things are those which may not be touched, such as those consisting of a right,
1 These provisions are still unconsciously part of the photography regulations as a “picture” and a
photographer as a “painter”.
as an inheritance, a usufruct, use, or obligations in whatever way contracted. The Institutes further state that it does not make any difference that inheritance con- tains corporal things; that the user collects corporal fruits and that things owed or claimed under any obligation mainly relate to some corporal thing such as a field, a slave, or money; the essential fact is that the right to use itself, the inheritance itself and the obligation itself are incorporeal. Different types of servitudes are also mentioned here.
The characteristic of this codification is a fact that its treats incorporeal things as a good (res), so that they can be a subject of different transactions. This aspect of classification will come to surface much later at the time of great codifications of the 18th and 19th centuries in Europe.The Justinian’s Codification had for long a
dominant influence on legal notions of Byzantine. Gradual deviation from the rules set in it started at the time of Iconoclasm,while it became fully visible at the time of development of the so-called guidelines of the type of Prohiron, Eclogue etc., that is to say at the time of legal texts which are usually referred to as the laws of Mace- donian dynasties. But, in my opinion, the key change in relation to classification of things appeared somewhere in the late 14th and early 15th century, just before the
fall of Byzantine.At that time in Byzantine, the first mechanical printing machines were invented what resulted in the first printed books. According to traditional sources, the inventors of printing machines were Sabbatai Zevy (often mentioned as Rabbi Shalom Shabazi) born in Yemen and Nathan of Gaza, who at the time came to the center of the Byzantine Empire.
Today in Florence in Palazzo Medici Riccardi, built somewhere between 1445 and 1460 for Cosimo Medici, there is a painting by Italian Renaissance painter Be-
nozzo Gozzoli, which is today referred to under different names, although a large
number of them disclose a certain degree of cynicism: Three kings, Three Wizards, Procession of Wizards, etc. (as an association to the birth of Christ). In addition to the Byzantine nobility visiting Florence, a dominant figure on the painting is a person known as Georgius Gemistus Pletho, who at the time was the Church patri- arch known as Joseph. He is a rather unexplored figure who was a true renaissance personality in any respect.
Although according to all available sources Pletho is considered a philosopher, neo Platonist, and alike (and perhaps he was), he yet gave a much bigger contribu- tion to codification of secular and church law of his time. A small segment of it has been preserved until the present day which is known as “Nomos Georgikos“ and the famous Krmcija, printed under his guidance. The international literature mentions that the first law was adopted long before, at the time of the Macedonian dynasties and usually its title is translated as the “Farming Law”. In my opinion, this is a misin- terpretation and it relates to a small segment of codification named after the author “Law of George” (Nomos Georgikos).3
What can be further indirectly discerned from a large number of sources is the classification of things made at his time. The discovery of printing machines and
the first printing of books at that time undoubtedly represented a revolution for people’s minds and their understanding of the world. What was difficult to achieve with manual transcription of books then became an easier mechanical process of book publishing which then could be available to a much wider circle of people. The literature of that time shows that publishing houses, in addition to books, engaged in additional lucrative activities. One of them was printing of ready-made letters with different contents (love, philosophical, political etc.), and in particular print- ing of different cards and other printed sundries. Much earlier, at the beginning of their work, printing houses understood that book publishing had not provided for a living. However, the book publishing whereby books became accessible to a wider circle of people had a crucial impact on the awareness of the people of that time. The sketches of Leonardo da Vinci show that he obviously used some Byzantine geometry books, and he in particular dealt with statics and mechanics of domes, so characteristic for Byzantine churches of that time. The appearance of the so-called “renaissance figures” dealing with versatile topics was inspired by the possibility of reading books of various contents. For instance, Pletho himself is the author of a publication on double accounting which was later on published by Luca Paciollo in an adapted form, as a “publication devoted to the Dutch of Urbino”.
All professions and trading activities of that time were organized in special guilds. Basically their organization did not change much over centuries. But, if you follow legal texts of the Theodosius Code and onward, one may note continued ex- pansion of their self-managing or self-regulatory function. A particularly detailed description of the guild organization is found in the later period in the so-called “Book of the Eparch” depicting the organization of notaries public and traders in silk, perfumes, gold etc.
In 1938 in his English translation of the Byzantine Book of the Eparch which depicts the rules of various guilds in Constantinople, Edwin Hanson Freshfield rec- ognizes the London guilds of his time in the organizational rules given in the Book of the Eparch. He even believes that some of them are almost identically or similarly organized. That can be undoubtedly said for the famous publishing guild in Lon- don Worshipful Company of Stationers and Newspaper Makersor in short Station-
ers’ Company, which was awarded a king charter in 1557 to regulate professions
of printers, bookbinders, book sellers and publishers in England. Its registries al- lowed publishers to document their right to publish a printed book. With the char- ter, the company was authorized to carry out confiscation of illegal issues and to prohibit publishing of unlicensed books. In their core function, these registries are a Byzantine analogy of land books (land registry), not for authors but for printers and later on publishers.
The first characteristic classification feature of that time was that the thing (res) included only material things, that is to say only corporal things. All the rest was rights, as incorporeal things that were not named as res.4 Such a division is
4 Other European states maintained the Justinian’s classification into corporal and incorporeal things
noted in Germany much later. The logics was quite simple. All persons have rights of various types. Some have property rights that are transferable. Other rights are rights a person is entitled to by nature or under the law of nature and they are not transferable. A classification similar to goods in and out of trade (res in commercio,
res extra commercio).Movable goods were transferred by tradition, immovable by
registration and rights by cession. Incorporeal rights are not subject to the same rules as corporal rights. Because they are not res. For illustration, no one can say I am the owner of rights but I have rights, because a right is incorporeal and is not a thing. Because a right cannot be owned. For the same reason, we do not say I am the owner of claims, but I have claims. At that time a differentiation was made be- tween assets in bankruptcy and realized assets (as a material substitute for assets) or liquidational assets and liquidational mass etc. Because rights are not a thing, they cannot be sold, leased, rented etc. They can only be transferred (if they are in trade) and only by cession.5
But when an incorporeal, intangible right, only a legal idea or fiction is attached to the paper, that right becomes a thing (res) or a material object that can be trans- ferred as any other corporal thing. That represented a rather revolutionary idea, which was inspired by the invention of printing machines. A claim is a right and as such it is incorporeal. It is transferred by cession. But if a claim is attached to the pa- per, it is transformed into a security and becomes a corporal thing. Its transfer is not made by cession but under the rules applied to corporal things. In case of a bearer security, rules for movable goods are applied (tradition) and in case of a registered se- curity, the rules for immovable goods are applied (tradition and entry into registry).
The second characteristic of this period is fragmentation of ownership at the time of Pletho (especially in West European feudalism). Legal thinkers of that time, defined a difference between dominium directum (property right) and dominium
utile (right to use). If a feudal master had dominium directum,his vassal had domin- ium utile, but both of them had property rights of the lot or of another thing (it was
a position of Western feudalism strange to Byzantine legal thinking). At present, the owner would lease the land, but in our case lease is an obligation contract that produces personal obligation rights but not property rights. At that time, such a fragmentation provided both the vassal and the master with real rights. For a long time in England and other common law countries, land lease was a property, and not an obligation category. Therefore in such a system, a major role was played by property rights derived from ownership, the so called iura in re aliena (servitudes, right to use, usufruct, right to housing or habitation, superficies etc. – so-called time limited interests).
5 This classification was disputed by the Napoleon Codification. Recalling the Justinian’s Institutes
and division into corporal and incorporeal things, both types of things are marked as res, whereby they could be owned. Since anything considered res may be owned (even an incorporeal thing or a right) it became possible to say “I own a right” or “I sell a claim“, I lease a claim” what is unknown to the Byzantine state of mind, including even Justinian. But undoubtedly strange to the time of Pletho. Because in his time, feudal rights were property rights and mainly relied on iura in re aliena (time
At the time when any author’s work was inscribed on paper, parchment or papyrus manually with great difficulty or its copying went slowly and laboriously, the circle of so-called public or audience the work could reach out to was rather limited. The invention of printing machines increased the circle revolutionary. If the incorporation of incorporeal ideas and thoughts was performed on paper, the very act meant their transformation into a thing (res) whereby a person could claim to be an owner of the work that is to say of a thing (res). Before the time of material fixation on paper, ideas and letters were not res,were incorporeal and as such inca- pable of being the object of property right. Only after their fixation, it became pos- sible. But since the moment an idea turned into a thing and an object of ownership, what had to be done the work to reach out a wider number of people was copying it though printing. This is the idea incorporated in the English term copyright (right to copy) which was more directed at the right of a printing house (printer) than at the right of the author (which we could see in the Justinian’s Codification since the moment of realization of an idea on the material paper, it becomes a thing and is subject to property right). Here printing houses started from the undeniable fact that the book was a property of the individual XY. That is not problematic. They solely wanted to achieve the right to copy that thing. That is why, it seems to me, common law tradition is much closer to Byzantine ideas about copyright than what was later on developed led by the ideas of France. In the French terminology copy- right is a right (droit d’auteur), which is more treated as an incorporeal thing in the sense of theJustinian’s Institutions, transferred in a similar way to cession, than as movable and immovable goods. Even the classification itself into property and mor- al rights does not mean that a copyright in the French approach is understood as “ownership of a thing“ what was a characteristic notion at the time of invention of printing machines in the 15th century. We may see it in the fact whereby in order to
have a copyright (right to copy) in the Anglo-Saxon sense, there must be a material fixation of the work. Irrespective of the fact that we are speaking about an intellec- tual work and effort, in common law countries the work will not be legally protected if it is not incorporated into a matter (paper, book, CD, DVD, cassette, movie roll or generally a “carrier of incorporeality”). In the case of copyright in the French sense (droit d’auteur), there is no condition of material fixation.
The same “confusion” in relation to classification of things and definition of what is considered a thing (res) and what a right in a particular legal system in the case of copyright may in parallel be followed in relation to securities. For a Byz-