Des causes qui ont privé les compositions littéraires des garanties accordées aux autres propriétés.

CHAP. 32: On the causes that have deprived literary compositions of the guarantees accorded to other properties.

IN observing how literary works are formed, one sees that they are subject to the same general laws as all other products of human industry; they are obtained only by means of a labor that is more or less long, more or less arduous, and by expenses that are more or less considerable; one engages in this labor, one makes these expenditures only in countries where one has the certainty of reaping the fruits thereof.

However, when one compares what most literary works cost in studies, time, talents, and expenses, to the price that authors receive for them from the booksellers to whom they sell them, one perceives that, in general, labors of this kind are less rewarded than most other labors. There are works whose composition has required very extensive knowledge, considerable costs, and a superior mind, and which have not been paid, by the booksellers to whom they were sold, a tenth part of the sums that the authors spent to produce them. In other branches of industry, from the moment a product is sold at a price inferior to its costs of production, it ceases to be created; for no one can engage, for a long time, in a ruinous industry. Would writers not be subject to the general laws of humanity?

There is a great number of cases in which the author of a literary composition has received the price of his labor long before having published it. Most works on the sciences or on letters have been composed by men who engaged in teaching; the price of the labor they required was paid by the pupils to whom the lessons were given, or by the public which paid the professors for them. He who sells to a bookseller lessons for which he has already received a salary, considers the price given to him for them only as a sort of supplement to the value of his labors. If he had been due to receive no other reward than this price, he would perhaps have sought another kind of occupation, either because the state of his fortune would not have permitted him to engage in a little-productive labor, or because he would have been drawn by his taste toward a more lucrative labor.

There is a second class of works that are produced only by means of great expenditures, and which booksellers obtain at a very low price: such are the great voyages across the seas or in distant and often barbarous lands. The costs of this sort of composition are paid, in general, by governments, that is to say, by the public; and if they are delivered at a low price to the purchasers, it is because their value has been paid in advance by all the taxpayers. Sometimes the authors of this kind of work have been rewarded in advance for their labor by commercial companies, which had sent them in search of new outlets or new products. Finally, it is not rare to see men who travel principally for their instruction, their pleasure, or their business, and who then publish the account of what they have observed, without claiming to draw from their writings the sums they have spent.

Orators, lawyers, preachers, and playwrights who deliver to the press their speeches, their pleadings, their sermons, their dramas, do not consider the price they receive for them from booksellers as the sole reward for their labors. They have been paid for them in advance, at least in large part, by their clients or by the public; what they receive as writers is little, compared to what they have received in any other capacity.

Sometimes a man engages in scientific research and puts his ideas in order only to practice a lucrative profession more easily, or to create for himself titles to a position. If he publishes the result of his labors, and if he receives from booksellers the price of his works, he does not consider this price as the sole reward for his occupations; he takes into account all the advantages he hopes for from it. Many, doubtless, are deceived in their expectations; but there is no kind of labor that does not give rise to miscalculations.

Literary works exert a great influence on the mind, the mores, and the conduct of nations. Governments, castes, and sects, whose interests are little in harmony with those of humanity, therefore constantly aspire to direct their production, and they always have at their disposal pensions, positions, and honors for the writers who put themselves at their service. By seeing, through the reading of history, what the dominant interests have been, in certain times and in certain countries, one can get an idea of the nature of the works that have been published; and, on the other hand, by seeing the works that have been published, one can form exact ideas of the interests that dominated at the time they were brought to light [^241].

When literary works are thus composed under the influence of certain interests, the authors do not expect from booksellers the reward for their labors; they expect it from the interests or the passions they intended to serve. In such cases, it is not rare to see works delivered to the public at a price that is much inferior to what they cost. Those who had them produced, far from demanding the reimbursement of their expenses, would willingly pay for one to take the trouble to study them.

It has long been observed that the more a particular kind of labor is honored, the less it is necessary to pay for it in money, to determine men to engage in it. In countries where there exists enough enlightenment and liberty for knowledge and talents to be causes of esteem, it is therefore not very rare to see literary compositions produced, with a view to making oneself commendable in the eyes of the public. Esteem and honor are a currency that acts on certain men with more energy than gold or silver, especially when they otherwise have assured means of existence. Thus, such a writer who would see, without complaining, booksellers multiply and sell, without his consent, the copies of his writings, would not suffer another to attribute to himself the honor of them. The usurpation of this kind of property would seem to him much more unjust than the theft of a piece of furniture or the usurpation of a field.

Finally, there are men who, being strongly preoccupied with certain ideas, publish their writings only to divulge and spread them. Their sole object is either to propagate certain truths, or to destroy certain errors, or to abolish certain abuses. To achieve their goal, they sacrifice their time, their fortune, and sometimes their liberty; if they put a price on their works, it is less to recover a part of the expenses they have incurred, than to have new means of accomplishing their mission.

One sees, by these observations, that literary works are subject, much more than they at first appear, to the general laws that act on all the productions of human industry. The price is not always paid in the same form, nor with the same currency; but it happens very rarely that an author receives no sort of reward from his labors. This can happen, however; but, if it were repeated often, one would end by no longer engaging in a labor that was followed by no advantage. In all countries, good works are more or less rare, according as they are more or less deprived of the protection of the public authority.

When the property of literary compositions is poorly guaranteed, or when it is so for only a very short time, the men who engage in this kind of composition are obliged to seek the reward for their labors elsewhere than in the sale of their writings; they must have themselves paid by positions, pensions, or other favors; that is to say, they are in the alternative of working without fruit, or of putting themselves at the disposal of the men who dispose of wealth and power.

The natural tendency of bad governments and aristocratic classes is to deprive literary property of guarantees. Independence is a condition without which it is impossible to engage in the research and sincere exposition of the truth. The labor that gives independence by creating property is, in general, suitable to men invested with power only insofar as they can direct it in their interest. They willingly encourage the production of literary works that can extend or assure the duration of their domination; but they fear the encouragements that come from the public, because in general those favor only the productions truly useful to humanity.

The most numerous classes of society do not have the means to band together to have produced the works that would suit them best; they have to distribute neither honors, nor pensions, nor positions. They have no other encouragements to give than those that result from the purchase of the literary productions put on sale; this means is even only within the reach of a small number of persons, because most lack wealth, or are devoid of enlightenment. The popular classes are therefore interested in writers expecting the reward for their labors from the future, while the aristocratic classes are interested, on the contrary, in their sacrificing the future to the present. The works that are to have a long duration, and which time is to make more and more appreciated, are more suitable to the former; those, on the contrary, that are destined to disappear with the errors and abuses they had for their object to fortify, are more suitable to the latter. The encouragements that arise from the guarantee of property are therefore favorable to the research of truth, to the triumph of justice; those that come from the favors of governments are, in the current state of most nations, more favorable to the propagation of error.

Literary compositions being subject, as to production, to the general laws that act on all other products of human industry, are, by the very nature of things, the property of those who are their authors. But do there not exist, between properties of this kind and all other properties, differences that must subject them to particular rules? A private property, in general, ceases to have this character only by the act or by the will of him to whom it belongs. It passes from one person to another only by the transmission made of it by the proprietor; if the latter does not dispose of it during his life, it becomes the property of his children, or of those of his relatives to whom it is supposed he would have given it, if he had formally disposed of it. Even if it were to have centuries of duration, it would not cease to be guaranteed; it would not lose its character of private property by the sole effect of the law.

It sometimes happens, however, that a particular property becomes a public property, because a nation seizes it in the common interest of the members of which it is composed; but in such a case, the dispossessed proprietor receives an equivalent for the property of which he is stripped, so that nothing is disturbed in his means of existence. He who, by his labor, had acquired, for example, a property that gave him an income of 3,000 francs, will enjoy the same revenue if the State judges it necessary to make this property enter the public domain. It is even probable that he will enjoy a more considerable revenue, because in general, civilized nations pay more than their value for the private properties they acquire.

Literary property, properly speaking, has not been completely guaranteed in any country. The governments that have shown themselves most favorable to compositions of this kind have restricted the rights of authors to a temporary enjoyment. They have wished that, when the time of this enjoyment has expired, everyone should have the faculty of multiplying and selling their writings. They have therefore instituted booksellers and a part of the public as the legitimate and necessary heirs of all writers.

The apparent motive for this disposition has been to favor the diffusion of enlightenment; it has seemed to be believed that by dispensing booksellers from paying any right to writers or their successors, literary compositions would be sold at a lower price, and that a greater number of persons could acquire them. It has been said, on the other hand, that if these compositions were put on the same rank as other private properties, it would often depend on the caprices, the prejudices, or the avidity of a man, to deprive a nation of a work of genius. If the heirs of an author, such as Corneille or Molière, for example, were superstitious enough to suppress his works, or avid enough to sell them to people who believed they had an interest in preventing their publication, should one furnish them the means? By putting literary productions on the same rank as other private properties, would one not deliver the works of genius to men who would consent to sacrifice them to the most vulgar interests?

The protection of a government, it is added, generally stops at the points where its empire ends. It can make literary property respected in the country subject to its domination; but beyond its frontiers, everyone has the faculty of multiplying and selling, without authorization, the copies of the works published under its protection. It follows from this that the nations in which writings are published, and which guarantee to authors the faculty of selling them exclusively, are obliged to pay more for them than others. The latter, having no right to pay to the authors, conduct a more advantageous book trade, and have more means of instructing themselves. They can even furnish books, by an illicit trade, to the people who do not enjoy the faculty of having printed, without paying author's rights, the works published on their territory.

There is another consideration that probably has not been without influence on the measures that it was thought necessary to take on literary productions. In general, any value produced can be consumed; any work to which human industry has given birth can perish for lack of care. Immovable properties are susceptible of degradation and destruction like others; they are preserved only insofar as one repairs the damages that time and enjoyment cause them to suffer. A farm that one exhausted by an uninterrupted series of the same harvests, and from which one made disappear the woods, the buildings, the herds, the instruments of agriculture, in a word, all the objects that industry has formed, would lose the greatest part of its value. If, at the end of a determined time, all things were to leave the rank of private properties, to fall into the public domain, they would be almost entirely destroyed when the term prescribed by the laws arrived. The most flourishing country would thus descend to the level of the lands subject to the most despotic governments. The perpetual guarantee given to properties is therefore one of the principal causes of their conservation.

Literary compositions are an exception to the general rule: they are worn out neither by use nor by time. When a writer has published a work, he no longer has the means to degrade it or make it disappear. If the public authority guarantees him its enjoyment for only a certain number of years, one does not have to fear that he will profit from this time to exhaust it or to destroy its value. The only means he has of enjoying it is to multiply the copies and to spread them; and the more the number of copies increases, the less it is to be feared that the work will perish. One has not had, therefore, to guarantee literary properties, the same reasons as for guaranteeing other kinds of properties.It must be added that most modern governments, having emerged from the feudal regime, for a long time accorded consideration only to feudal properties, that is to say, to landed property. The contempt they had for all kinds of industry spread to the products of labor, to movable properties, and to the men for whom they were the principal wealth. Literary compositions, being the latest fruits of civilization, were respected even less: there has been no government that has frankly placed them in the rank of properties. What is called, in effect, literary property is nothing other than a simple enjoyment for a few years. This is so true that he who would propose to apply to all the creations of human industry the rules that are followed with regard to literary works would be considered as aspiring to the destruction of all property, and to the overthrow of the social order.

If, as is asserted, literary properties were deprived of guarantee after a certain time of enjoyment only for views of public interest, and to favor the propagation of enlightenment, it is difficult to see why one would not act, with regard to properties of this kind, as one acts with regard to all others. When, to make a canal, a great road, or a fortified place, it is necessary to make the house or the field of a private individual fall into the public domain, one begins by paying him its value, or by giving him an equivalent property. One would believe one was committing a crying injustice if one were to despoil him in the interest of the public, without giving him anything in exchange; spoliation committed for the profit of several million individuals is no more legitimate, in effect, than spoliation executed for the profit of a single one. It ought even to be more odious, first because it is more difficult to guard against it, and, secondly, because the indemnity to be paid to obtain a private property is infinitely small when it is distributed among an immense multitude of persons. But how does the spoliation that one would find unjust when it is a matter of a field or a house, become just when it is a question of a literary work? Why would the indemnity that one finds just in one case, not be so in the other? Would the labors of the writers who have enlightened the world, of Descartes, of Bacon, of Franklin, be less worthy of protection and respect than the labors of a candlemaker?

It is very true that literary works produced and published in one nation enjoy no protection in others. French booksellers, for example, reprint and sell, without paying any author's right, the writings published in England, and, for their part, English booksellers reprint, without paying anything, the works published in France. It results from this that, when a work is published, the nation that guarantees to the author the faculty of selling it exclusively is treated less advantageously, relatively to this work, than the nations that give the author no guarantee. It also results from this that the guarantee given to literary property is a stimulant for the introduction of works published abroad, and for which the booksellers have had to pay nothing to the authors. These objections against the guarantee of literary property are stronger in appearance than in reality.

The fraudulent introduction of works reprinted abroad, with a view to paying no right to the authors, can in reality harm only the latter. Any bookseller who buys a work to deliver it to the press knows in advance that this work will be reprinted abroad if it is good, and that a certain number of copies will be fraudulently introduced into the country. He makes his calculations accordingly; he pays that much less for the manuscript, as he has more chances of loss to run. It is therefore exclusively upon the author that the damage caused by the counterfeiting falls. But from the fact that one cannot prevent all the infringements of which literary property can be the object, does it follow that one must deprive it of all guarantee?

Governments, to protect the industry of printers, binders, and booksellers, prohibit works printed or bound abroad; they do not fear to harm, by these prohibitions, the commerce or the instruction of the peoples who are subject to them. If therefore they refuse guarantees to literary property, it is not in consideration of the counterfeits that can be executed abroad. It is no more difficult to protect the property of authors than the industry of printers, booksellers, and binders.

The fear of seeing ignorant or greedy men deprive the public of works whose property they had acquired is not a reason either to deprive literary property of guarantee.

It would be very unfortunate, doubtless, that an ignorant or superstitious man should have the means to stifle the works of a great man, which he had acquired by succession or otherwise; but to prevent such a danger, it is in no way necessary to deprive literary productions of the protection of the laws, and to give to every bookseller the faculty of gratuitously multiplying the copies. If it matters to the citizens that such a work be spread and that it fall into the public domain, it is difficult to see why one would not proceed, to acquire it, as one proceeds to acquire other properties that the public needs. When one considers literary productions relatively to nations, one seems to believe that they are priceless; but when one considers them relatively to writers and their families, one treats them as if they were without value. Is it a matter of seizing them, in order to let the public enjoy them? one judges that one cannot esteem them too highly. Is it a matter of indemnifying those who produced them or received them from the producers? one judges that they are worth nothing. Is there not, moreover, a shocking injustice in despoiling an entire class of persons of their properties, for fear that there might be one among them who would make a bad use of his own?

The circumstance that literary productions remain unalterable when they have been published, and that it is not to be feared that they will be destroyed by the authors or the booksellers to whom only a temporary enjoyment is granted, is, doubtless, a reason to give to this kind of property limits a little less extensive than to others, but it is not a reason to deprive them of guarantees after an enjoyment of a few years.

Properties are not guaranteed solely with a view to preventing their destruction; they are also guaranteed with a view to encouraging their development, and to assuring families resources that are in harmony with their mode of existence. If, from the circumstance that a work can no longer be destroyed by the author after it has been published, one were to draw the consequence that the property must not be guaranteed, one could also conclude from it that one can make it fall into the public domain the day after publication. With such a system, there would soon appear no other works than those whose price had been paid in advance by governments or by privileged castes.

Governments, which show themselves so zealous for the propagation of enlightenment, as long as it requires only depriving literary property of guarantees, are far from showing the same zeal when it is a matter of incurring some costs to spread works truly useful to the public. They are quite willing for the author to bear the costs of the composition; but does it occur to them to bear the costs of the printing themselves, and to pay the paper merchant? None has such a thought; each leaves to the public the care of paying this part of the expense; one spares it only the author's rights, in order, doubtless, to encourage the composition of good books.

In England, the property of authors' compositions is not guaranteed; they are assured only a very short temporary enjoyment; but the universities are guaranteed the perpetual enjoyment of the writings that are given to them. It would be difficult, however, to see why what can belong to a corporation cannot belong to a family or to a private individual. Would the good that one holds from the generosity of others be more worthy of protection than that which one owes only to one's labor? One refuses a writer the faculty of transmitting to his children the property of his works; but one permits him to give it to such or such corporation destined to educate the children of the aristocracy. It may be that such dispositions have for their object to favor the diffusion of enlightenment in certain classes; but it is not possible to consider them as an encouragement to the production of good books.

The imperial government, which also had the pretension of propagating enlightenment, had consecrated the principle that after a certain number of years, every literary composition would fall into the public domain. At the same time, it had established that any person who wished to reprint a work that had fallen into the public domain would be held to pay it a duty [^242]. This government therefore constituted itself the heir, not only of all future authors, but of all past authors, including those of Rome and Greece. It attributed to itself, over literary compositions, a right of property that it did not recognize for writers; and this, it was said, with a view to favoring the development of human knowledge!

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Notes

[^241]: Literary compositions are subject to the same influences as the productions of the arts: it would suffice, for example, to classify, by era, the great paintings that have been made in a nation, to know what interests and ideas have in turn held sway. [^242]: Decrees of April 21 and June 3, 1811.