Des fondemens et de la nature de la propriété littéraire.

CHAP. 31: On the foundations and nature of literary property.

HAVING admitted in principle that a person can never be the legitimate property of another, we have drawn from it the consequence that all utility, all value belongs to him who creates it; we have recognized that, as long as he has not alienated it, one cannot ravish it from him without stripping him of his property.

These propositions are little contested, as long as they are applied only to purely material products; thus, one easily admits that a skilled worker who transforms a piece of steel into an instrument of great price is the proprietor of that instrument, or of the value to which he has given existence; one also admits that the man who builds or has built a ship with materials for which he has paid the price, is proprietor of that ship, especially when he has paid for the workmanship of the workers he employed.

One will likewise admit, without contestation, that if, on a paper that belongs to me, I write a poem that I have composed, I will have the property of the whole thing, of the verses and of the paper; but if I deliver a copy of my work to a person, whether by way of deposit, loan, or sale, will he to whom I have delivered it not be able to use it to make a new copy, without infringing upon my property? If he restores to me, without having subjected it to any alteration, the manuscript that I entrusted to him, does he not return to me my entire property? If he has paid me the value of a copy, has he not acquired by that very fact the right to make new copies and to sell them? It is on these questions that doubts arise.

Those who think that one does not infringe upon the property of an author by multiplying, without his consent, the copies of his writings, are based on the fact that an idea is the property of a person only as long as it remains enclosed in his brain; as soon as, they say, it is divulged and has penetrated into the minds of other persons, it becomes in turn their property; he who first conceived it no longer has any exclusive right to it.

To consider literary productions thus, when it is a question of property, is to view them from a false perspective. One must first remark that thoughts that have never been divulged can give rise to no discussion. It therefore matters little enough to know whether they are or are not the property of this or that individual. One must observe, in the second place, that no one has ever seriously claimed that a published thought was irrevocably acquired by the first who conceived it. The men who publish their works are so far from having such pretensions that they propose, on the contrary, only to pass into the minds of their readers the ideas they have expressed. No one has ever been mad enough to claim, as proprietor, the ideas that others had drawn from his writings, and of which they had made use, either by putting them into practice, or by composing new works.

A writer who appropriated by study all the thoughts contained in L'Esprit des lois, and who used them to compose a work that he would give as his own, would not be accused of having infringed upon the property of another, even if the works of Montesquieu still belonged to his heirs. In such a case, the new work produced would be a thing whose creation would belong to him who was its author, and which he would not give as the work of another. The thoughts he had drawn from the writings of Montesquieu would have become his property, just as those that this great writer drew from the authors who had preceded him became his.

But it is not in such cases that questions of literary property arise. The bookseller who publishes and puts on sale the tragedies of Racine gives them under the name of that author, and does not give them under his own. Had he learned them by heart, he would take care not to publish as his own the verses of Phèdre or Athalie; if he committed such a folly, he might well cover himself with ridicule, but he would persuade no one that these verses are a work that belongs to him. If this system of appropriation by communication were founded, it would follow that every comedy would be the work of the actors who had learned it; having appropriated the thoughts and expressions of the poet, it would only remain for them to appropriate the glory and the profit.

A literary work is not composed only of the ideas and sentiments it expresses; it is also composed of the order in which these sentiments and ideas are rendered; of the terms or expressions that the author has employed to communicate them; of the arrangement of these terms or the style of the writer; the name and reputation of the author are, almost always, one of the elements that form the value of the work.

The same thought can present itself to the minds of several persons; various writers, without having communicated with one another, can write the history of the same events; they can treat the same science, make a poem on the same subject; but never has it happened, and I do not believe it ever will happen, that two authors who have had, between them, no communication, have produced or will produce two works perfectly identical to one another.

Can one think, for example, that if Virgil had died in childhood, or if he had thrown his writings into the fire, without having communicated them to anyone, a poem similar in every way to the Aeneid would have been produced by another writer? Could one seriously accuse La Fontaine of having stripped one of his contemporaries or his successors of the honor of having composed the fables that this inimitable writer has given us? If Molière had not written, would another have made comedies exactly similar to those that exist under his name? No one can believe it.

Phenomena of this kind can be placed in the rank of impossible things; however, even if one were to admit, in speculation, that they are not impossible, this supposition would lead to nothing in the question of literary property. It never happens, in effect, that the printer or the bookseller who multiplies, without authorization, the copies of a writing that another has composed, and who sells them for his profit, raises the singular pretension of having been preceded in the production of the work. No one claims that he would have composed it himself, if he had not been forestalled, or that he happened to coincide with the writer who accuses him of having stolen it, and that, if there is identity between the two writings, this is due to a pure effect of chance.

One therefore proves nothing against the existence of literary property when one says that a thought becomes the property of any person who conceives it. The only reasonable consequence that one can draw from this is that everyone has the right to express, in his own way, and under his own name, the opinions he has conceived or adopted. But he who multiplies, in order to sell them, the copies of the works of a famous writer, has no pretension of publishing his own thoughts in a language that is his. It even often happens that he has not read the writing whose copies he multiplies, or that, if he has read it, he has not understood it or does not completely approve of it. How then can one say that he publishes only the thoughts that he has appropriated by making them pass into his mind?

Another reasoning has been made to prove the non-existence of literary property; it has been said that, from the moment a writer had delivered to the public one or more copies of his work, everyone could multiply and sell them without the author having any means of preventing it. From this has been drawn the consequence that writers have, over their writings, only the rights that are given to them by the public authority, that is to say, by the laws or decrees of governments, and by the courts that assure their execution. These rights, it is said, are but a veritable monopoly.I am obliged to recall here that governments do not have the power to change the nature of things; they cannot make it so that what is, by its nature, just, is not, and that what is not, is. Property results from a certain order of facts, and not from the declarations of the public authority; the duty of governments and especially of the men who make laws, is to have it respected; it therefore has an existence independent of them and of their acts. Governments do not create right; they proclaim and protect it when they are good; they deny and violate it when they are bad.

If, from the impossibility in which an author finds himself of preventing, by his own force, the multiplication and sale of the copies of his works, one were to draw the consequence that there is no literary property, one would be led to deny the existence of all other properties; the rights of each would be in proportion to his individual forces. What is the man who, having somewhat extensive territorial properties, could, by himself, prevent others from taking the fruits thereof? Would he be on all points at the same time? would he be there in force to repel the assailants? Would movable properties be more respected than immovable properties [^237]?

To decide if literary property has a real existence, and if what we designate by this expression is not a monopoly conferred by governments on the men who write, to the prejudice of those who read, it is therefore necessary to examine if we encounter in the productions of this kind the circumstances that cause others to be given the name of properties.

A man goes to a bookseller, and buys with a part of the products of his industry, books to form a library. These books, when he has paid their value, are certainly his property, if the seller had acquired them in a legitimate manner. If they cost him, for example, twenty thousand francs, this entire sum is not a profit for the bookseller. The latter, to acquire them, will perhaps have disbursed eighteen thousand francs. The two thousand francs that he will have received beyond the acquisition price will have served to indemnify him for his pains, and to pay the costs of his rent and the salary of his clerks.

If a part of the twenty thousand francs remains in the hands of the bookseller, another part goes into the hands of the binder. This latter is divided between the head of the enterprise, his workers, and those who furnished him with the raw materials necessary for the exercise of his industry. The tanner who furnished the skin with which the books are covered, the butcher who sold it, the farmer who raised the animal, and the proprietor who rented him his land, therefore all have a share of the sum that reverts to the binder.

A third part of the twenty thousand francs reverts to the printer, and this part is again divided among a multitude of persons: the workers of the printing house have a share, the type-founders another; there are not even the miners, by whom the material of the type was furnished, who do not receive something from it.

A fourth part reverts to the paper merchant; this one distributes it between himself, his clerks and the manufacturer; the paper manufacturer gives a part of it to his workers and to the rag merchant; finally, this merchant distributes the sum he has received, between himself, his clerks and the unfortunate who make a trade of gathering rags in the streets.

Each of these industrious men who have contributed in a more or less direct manner to the production of the books, has added a small value to the thing, and this value has been his property; for it is he who created it. There is no one, in effect, who would take it into his head to contest the rag-picker's, the paper worker's, the printing worker's, price for their day's labor. Of all properties, that which results immediately from labor is one of the most sacred.

That being understood, it is a matter of knowing if, among the great number of persons whose contribution is necessary for the formation of a book, the author is the only one whose labor is without value or without utility; it is a matter of knowing if this labor is less necessary, and deserves less to be protected than that of all the others. The question thus posed, it is difficult to understand how the existence of literary property could have been put in doubt.

There is a certain number of things necessary to men, which exist in such great abundance, that each can take as much as he desires without diminishing in any way the enjoyment of others; of this number are the light of the sun, the water of the sea, the atmospheric air. We consider these things as the common property of the human race; each can make use of them, without fear of being accused by others of usurpation.

Now, is there not in literary compositions a point of resemblance with these things that are the common property of all men? Can one not multiply to infinity the copies of a work, without altering in any way the enjoyments of those who possess it? Even if printing were to multiply the fables of Lafontaine in such a way as to put them for nothing into the hands of all persons who know how to read, would not each have the entire work? And if, in this respect, literary works resemble the things to which jurists give the name of common, is this not a reason to subject them to the same rules?

If the production of literary works had solely for its object the instruction or the pleasure that results from reading, it is evident, in effect, that there would be no reason to distinguish them from common things; for, in multiplying to infinity the copies of a writing, one diminishes in no way the means of instruction or of enjoyment of those who possess it. But the author of a work did not have only for his goal, in producing it, to instruct or to amuse those who will read it; he proposed moreover to exchange a product fit to give instruction or amusement, for products of another kind. A writer is in the same position as all men who, in a civilized state, draw from their labor their means of existence. He can obtain the various objects he needs only by offering in exchange the things he produces and which others desire.

Thus, although literary compositions, from the moment they have been brought to light, resemble, from one point of view, common things, they differ from them completely in another respect; they are the product of a human labor and can be obtained only insofar as they assure means of existence to the producers; it is these latter circumstances that cause them to be placed in the rank of private properties.

A work, however little value it may have, could have been produced, in effect, only by a person whose education had been more or less expensive. It was necessary, to compose it, to devote a certain time to it, and during this time it was necessary for the author to consume previously accumulated wealth. If, to create it, the author needed a particular genius, no one could contest his property in it, unless one also contested his property in his mind. It took more time, vigils, genius for Corneille to produce Le Cid and Les Horaces, for Racine to produce Athalie and Britannicus, than it takes for a jurist to make a few dozen consultations, or for a manufacturer to produce a few thousand ells of cloth. One admits, without contestation, that the latter are proprietors of the goods they acquire by their science or their industry; why would one not also admit that the former are the proprietors of the products of their genius? One can sometimes put in doubt whether such and such domains have not been usurped by him who possesses them; whether the millions that such a banker has made pass from the hands of the taxpayers into his coffers, have been well or ill acquired; but never has one put in doubt whether Buffon had usurped his Histoire naturelle or Molière his comedies.

Nations find themselves, relatively to literary productions, in the same position where they are with regard to all productions: if they wish to obtain them, they must pay for them. The men who devote themselves to literary labors are not of a different nature from others: as they have the same needs, they are moved by the same desires and by the same fears. They constantly compare the pains that certain productions require, to the advantages that must be the result of them: if the pains outweigh, they renounce them.

A man will not sow his field if he is convinced in advance that another will come to do the harvesting; he will not plant a vine if another is to gather the fruit; he will not have a house built if he knows that it will be taken from him the moment it is finished; he will not have merchandise brought from the various parts of the world to fill his stores, if he has the certainty that they will be delivered to pillage.

Thus, the first condition for a value to be produced, for a property to be created, is that it be assured in advance to him who will be its author; the most infallible means of preventing its formation, is to give to him who could create it, the certainty that he will be despoiled of it without indemnity, at the very instant it has been formed: such is the law of our nature, a law as infallible in its results as the laws of the physical world.

Peoples being placed, relatively to literary works, in a position similar to that in which they find themselves relatively to every other kind of product, it is now only a matter of knowing whether the compositions of the mind are or are not favorable to the progress and perfection of men. If this question could appear doubtful in the eyes of some persons, it would suffice, to make the doubts disappear, to compare the peoples who guarantee, at least for a time, literary properties to those among whom they are stifled before having seen the day: England to Turkey, the United States and France to Spain and Portugal.

There are two entirely different means of attacking literary compositions: one is to mutilate or stifle them before publication; the other, not to guarantee them to the authors, when they have appeared. These two systems are not defended with the same views, nor by the same classes of persons. The men who defend the first, propose only, they say, to prevent the propagation of certain errors; they have no other object than to assure the triumph of truth, that is to say, the reign of their opinions and their interests. Those who defend the second, have no other desire than to propagate enlightenment; they say that a work that everyone has the faculty of printing and distributing, is always sold at a low price, and that it is thus put within the reach of all readers.

This is not the place to examine the attack made on literary productions by the mutilation or by the prohibition of publishing them; this question is linked to others that are much more elevated. It is enough for me to observe, at this moment, that this means prevents the conception of literary works, much more than it stifles them. The men who, in most of the states of the European continent are charged with judging literary works before publication, probably have little occupation; it must rarely happen to them to have to examine bold conceptions or works of genius.

As for those who imagine that, to rapidly spread enlightenment, it is necessary that everyone have the faculty of indefinitely multiplying the copies of a writing from the moment it has appeared, and that one cannot put literary productions on the same line as all human productions, without harming the progress of civilization, one may be astonished that they have not taken one more step, to arrive more quickly at the result; why, after having proclaimed that all booksellers have the right to multiply gratuitously the copies of any writing that has seen the day, do they not recognize for all readers the right to take books from the booksellers without paying for them? Would this not be the best means of rapidly spreading all sorts of knowledge?

One will say, doubtless, that this means would have only a fleeting utility; that booksellers would no longer have books printed, if their shops were put to pillage, and that they can continue their commerce only insofar as it assures them means of existence and their properties are respected. This is incontestable; but it is difficult to understand how what is an evident truth for those who sell books, would not be true for those who compose them? Would one think that, to produce a book, the bookseller is a more necessary man than the author?

It follows from the preceding considerations that, to protect literary property in a State where justice was well administered, one would have no need of a special law; it would suffice to know how to make application of the general principles of right: jus suum cuique tribuere. From the moment, in effect, that one has declared that everyone is held to repair the damage he has caused, one is obliged to recognize that he who counterfeits a work belonging to another, to appropriate its product, is held to an indemnification.

The question formerly presented itself in England, before the Court of King's Bench, on the subject of Thompson's poem, The Seasons. This poem, which the bookseller Miller had acquired, having been counterfeited, the acquirer brought an action for damages against the author of the counterfeit. The jury limited itself to pronouncing on the fact of the counterfeiting, and left it to the judges to pronounce on the question of right. The question was thus posed: To know, whether after a general and voluntary publication of a work, by the author or with his consent, the said author has the perpetual and exclusive property of that work, in such a manner that the right to make new copies of it belongs only to him and to his successors, or to those to whom he has legally transmitted it. Of four judges, three were of the opinion that the perpetual right existed, and that literary properties were alienable and transmissible like all others.

A second time, in 1774, the question was brought again before the Court of Chancery, and the judges pronounced again in favor of the right of property, perpetual, exclusive. This decision having been attacked before the twelve judges, for cause of error of law, several questions were successively debated and resolved.

The first was to know whether, according to common law, the author of a literary composition had the sole right to have it printed, and to publicly sell copies or exemplars of it. Nine judges, among whom was Blackstone, pronounced for the existence of the author's right, against Judge Eyre who had maintained the contrary opinion [^238].

The second question was to know whether, in admitting that, according to common law, a writer had the sole faculty of publishing and selling his work, this faculty had not been taken from him by a disposition of a particular law, and whether any person could not publish and sell it without his consent. On this question of local law, six judges were of the opinion that no particular law had taken from an author the right to print and publish his works, and that no one could, after publication, reprint and sell them, without his authorization and against his will. Four judges were of a contrary opinion.

The third question was to know whether, in admitting that the author had an action according to common law, this action had not been taken from him by the statute of the eighth year of the reign of Queen Anne, ch. 3; and whether an author was excluded from any recourse, other than that which the same statute granted him, and on the terms and conditions that were put therein. Six judges decided that any action, according to common law, had been taken away by this statute, and that the one it had granted was the only one to which it was permitted to have recourse. The contrary opinion was maintained by five judges.

The fourth question was to know whether, according to common law, the author of a literary work, and his heirs or successors, had the sole right to print and publish it in perpetuity? Seven judges pronounced for the existence of this right, four were of a contrary opinion.

Finally, the fifth question was to know whether this perpetual right of property, over literary works, had been denied, restricted or taken away by the statute of the eighth year of the reign of Queen Anne. Six pronounced for the affirmative, and five for the negative. In consequence, the decision rendered by the Court of Chancery was annulled on the motion of Lord Camden, seconded by the chancellor [^239].

Thus, the statute relative to literary property was not considered, in England, by the majority of the magistrates, as having created a right in favor of authors; it was considered, on the contrary, as having restricted a pre-existing right of property. If this statute had not been rendered, literary works would have been put on the same rank as other private properties. This statute therefore recognized the right, it limited its duration; but it did not create it.Richard Godson, whose opinion was cited at the beginning of this chapter, has considered as a natural right the power to multiply the copies of a work of which one has bought a copy, and to sell them for one's profit. An English jurist, of much sense, has refuted this error in so clear a manner that I could not better end this chapter than by reporting his opinion.

“There is nothing more erroneous than the vulgar usage of tracing the origin of moral rights and the system of natural equity back to that savage state which is supposed to have preceded the establishments of civilization, and in which literary compositions and consequently the rights of authors could have had no existence. The true way to ascertain whether a moral right has an existence, seems to me to be to inquire whether this right is such that reason, the cultivated reason of mankind, must necessarily give its assent to it. No proposition seems to me more conformable to this criterion than that everyone must enjoy the fruit of his labor, reap where he has sown, gather the fruit of the tree he has planted. And if one private right must be more sacred, more inviolable than another, it is that which takes its source in a labor from which mankind derives the greatest benefits. Literary property, it must be admitted, is very different, by its nature, from a property that consists in material objects; and this difference has led some people to deny its existence as property. But whether it be a sui generis property, or whether it be classed under whatever other denomination of rights one wishes, it seems to me founded on the principle of general utility, which is the basis of all moral rights and all obligations [^240].”

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Notes

[^237]: Nothing is more common than to see power confused with right, especially when it comes to natural right. “Every individual, by the natural rights of the human race,” says an English jurist, “is authorized to exercise an uncontrolled power over any property of which he is once legally in possession, whether he has obtained it by purchase, or produced it by his labor. The purchaser of any merchandise, a machine, or a book, would therefore be free to dispose of his goods in the manner most advantageous to him, and he could multiply the number of machines or books as much as his interest or his pleasure would require. - This natural right to an unlimited freedom of commerce has been invaded at different times by sovereigns or by individuals.” (Richard Godson, Practical treatise on the law of patents for inventions and of copyright, bk. I. ch. I, p. 1.) It is evident that this writer here takes power for right, and that he posits as a principle that which is in question. [^238]: When a man, by the exercise of his intellectual faculties, says Blackstone, has produced an original work, he seems to have an evident right to dispose of that same work as he sees fit; just as any attempt to change the disposition he has made of it appears to me to be a violation of that right. The identity of a literary composition consists entirely in the conformity of opinions and language; the same conceptions, clothed in the same words, are necessarily the same composition; and whatever means one takes to expose this composition to the eyes or ears of others, by recitation, by manuscript, or by printing, in whatever number of copies or at whatever time, it is always the same work of the author that is thus exposed; and no other man (at least it has been thought so) can have the right to expose it, particularly to derive a profit from it, without the author's consent. This consent may be considered as having been tacitly given to the human race, when an author allows his work to be published by another person, without claim or reservation of his rights, and without placing upon it the mark of his property. But when a writer sells a single copy of his work, or when he completely alienates his copyright, it has been believed that, in the first case, the purchaser had no more right to multiply the copies of this exemplar for sale, than he would have the right to imitate, for a similar purpose, the ticket he bought to enter the Opera or attend a concert; and that, in the second case, the entire property, with its exclusive rights, is transferred in perpetuity to the purchaser. Commentaries on the laws of England, Bk. 2, ch. XXVI, § 8, vol. II, p. 405 and 406. [^239]: Richard Godson, Practical treatise on the law of patents for inventions and of copyright, Bk. III, ch. I, p. 204-206. [^240]: Here are the very terms in which the English author expresses himself: “Nothing is more erroneous than the common practice of referring the origin of moral rights and the system of natural equity, to that savage state, which is supposed to have preceded civilized establishmens: in which litterary composition, and of consequence the right to it, would have no existence. But the true mode of ascertaining a moral right seems to be to inquire whether it is such as the reason, the cultivated reason of mankind, must necessarily assent to. No proposition seems more conformable to that criterion, than that every one should enjoy the reward of his labour, the harvest where he has sown, or the fruit of the tree he has planted. And if any private right ought to be preserved more sacred and inviolate than another, it is that where the most extensive benefit flows to mankind from the labour by which it is acquired. Litterary property, it must be admitted, is very different in its nature from a property in substantial and corporeal objects; and this difference has led some to deny its existence as property; but whether it is sui generis, or under whatever denomination of rights it may more properly be classed, it seems founded upon the same principle of general utility to society, which is the basis of all other moral rights and obligations.” T. E. Tomlins, Law-Dictionary, v°. Litterary Property.