Des lois relatives à la propriété des compositions littéraires.

CHAP. 33: On the laws relative to the property of literary compositions.

WHEN the invention of the typographic art came to give industry the means of multiplying at little cost the copies of literary productions, nations were still too ignorant and too enslaved for it to be possible for judges to know the nature of all kinds of property, and to have them respected. If one had questions of right to resolve, it was not by studying the nature of things and the nature of man that one tried to give a good solution to them; one resolved them by the maxims of absolute power, by the decisions of the Roman jurists and emperors, or by feudal customs. But neither the Roman aristocracy, nor the feudal aristocracy, nor absolute kings had been able to admit in principle that every production is the property of him who has formed it. Such a principle would have sufficed to bring about in a short time the overthrow of an order of things founded on conquest, usurpation, and slavery [^243].

There are still today many men who do not know where to seek principles of justice, when they cannot have recourse to the dispositions of a code or the opinions of a jurist; it was difficult for one to be more advanced when nations were just emerging from the barbarism of the Middle Ages. The faculty of permitting or forbidding work was then considered as a domanial and royal right [^244]. Kings, both in France and in England, made frequent use of this supposed right, by creating and distributing monopolies at their will. Now, when the right to live by working was considered as a royal concession, as a privilege whose duration the power always took care to limit, could one have the thought of giving guarantees to the products of a free labor? could one have the courage to claim them [^245]?

If the first writers had had the faculty of freely printing and selling their works, they would therefore have been very embarrassed to prevent counterfeits; and, if they had had recourse to justice, the existence of literary property would have appeared very problematic in the eyes of the judges; to have them recognize it, nothing less than a privilege from the prince in favor of the author would have been necessary. The number of men whose evident and immediate interest was that productions of this kind be respected must, moreover, have been so small, and the number of those who could believe themselves interested in their remaining without protection so great, that the balance of justice would have necessarily tipped to the side of the latter, if the judges had been called upon to pronounce. We must not therefore be astonished if the measures adopted at first in various countries by the public authority, to grant some guarantees to literary property, are incomplete, and bear the imprint of the prejudices and habits that reigned at the time they were taken. The principles of property, poorly known, rarely consulted, were still more rarely followed [^246].

The kings of England, like those of France, created and distributed monopolies at their will, that is to say, they forbade the mass of the population a certain kind of labor or commerce, and they gave or sold to one or several persons the faculty of engaging in this commerce or this labor; one knows the abuse that Queen Elizabeth made of this power. It was therefore natural that a writer who had composed a work, and who wished to sell copies of it, should solicit the privilege for it. The temporary protection he obtained was considered by the authority only as a monopoly of which it could dispose arbitrarily, and of which it took care to limit the duration.

When everyone had acquired, in England, the faculty of publishing his opinions by means of the press, and when kings no longer had the power to forbid or to permit labor, authors had, by that very fact, the faculty of having their works printed and sold; but it appears that literary property was little respected, and that printers and booksellers made no scruple of ruining authors and their families, by reprinting and selling their works without their authorization [^247]. The most natural and simplest means of remedying this disorder would have been to have recourse to justice, and to invoke the principles that protect all properties; but one was still dominated by the prejudices and habits contracted in times of slavery. The kings having lost the faculty of establishing and giving monopolies for a determined time, one had recourse to the parliament which had inherited the absolute power of the crown.

In 1710, the parliament did, in effect, pass an act by which it declared that the authors of writings already published would alone have the right to sell them or have them sold for twenty years, from the day of the first publication. As for works not yet published, the exercise of the exclusive right to have them printed and sold was limited to a space of fourteen years, unless at the expiration of this term, the author was still living; for, in that case, a second term of fourteen years was granted to him. In acting thus, the parliament did not have the thought of giving guarantees to a particular species of property; it believed it was establishing monopolies for the profit of authors. Even today there are jurists who see nothing else in the rights whose enjoyment is assured to writers [^248].

The kings, when they forbade the mass of the population a branch of industry or commerce, to give the exclusive exploitation of it to a private individual or to a company, sometimes took measures so that the product placed under monopoly was not carried to an excessive price. The parliament of 1710, after having fixed the time during which a writer would exclusively enjoy the faculty of selling his works, thought it ought to take analogous measures to prevent the abuse that authors could make of their supposed monopoly. It designated, in its statute, a certain number of judges and ecclesiastical or civil dignitaries, to fix the price of books, in the case where the authors or their booksellers would want to make exaggerated profits. One saw figuring, among these price-setters of books, the Archbishop of Canterbury, the Bishop of London, the Lord Chancellor, the presidents of the courts of justice, and the vice-chancellors of the two Universities. The bookseller who sold his books at a price superior to the fixed price was condemned to a fine of five pounds sterling per copy, applicable half to the treasury and half to the prosecuting party.

One ended by understanding that a disposition that obliged booksellers to sell their books for a price that they did not have the faculty of fixing was little favorable to the development of letters and sciences. In determining the price of books, one fixed in effect the value of the labor of writers; and this fixing had to be less in reason of the intrinsic goodness of a work, than in reason of the conformity of the author's opinions with those of the price-setters. If an analogous measure had been taken in France, and if one had charged the Archbishop of Paris, the doctors of the Sorbonne, and the principal members of the parliament with fixing the price of the works of Montesquieu, Voltaire, Raynal, or Rousseau, the booksellers would not have drawn great profits from them. Thus, this disposition was repealed, in 1739, by a statute of the twelfth year of the reign of George II, chap. 11. By the same act, the importation of books printed abroad was forbidden, when they had been composed and printed in Great Britain. It was declared, moreover, that the other dispositions of the statute of the eighth year of the reign of Queen Anne, chap. 19, would continue to be executed for seven years, until the first session that would follow the year 1746.The Universities to which works had been given were persuaded that the property that had been transmitted to them was perpetual by its nature, like all kinds of property. When the decision of the Court of Chancery, which recognized for authors a perpetual right over their productions, had been annulled, and it had been declared that this right, which resulted from the principles of common law, had been destroyed by the act of the eighth year of the reign of Queen Anne, they solicited and obtained an exception in their favor. In 1755, an act of parliament, of the fifteenth year of George III, declared that the two Universities of England, the four Universities of Scotland, and the colleges of Eton, Westminster, and Winchester, would have forever the exclusive property of the works that had been or would be given or bequeathed to them, unless the bequest or the donation had been made for a determined time. The property was guaranteed to them, however, only under one condition: that the college or university that owned a work would have it printed only by its own presses and for its own particular profit. The same statute left to these privileged bodies the faculty of alienating the works that belonged to them; but, in case of alienation, the acquirers could not exercise other rights than those that were granted to them when they acquired works from private individuals.

In 1801, the English parliament passed a third statute to encourage learning by guaranteeing the right of authors over their works. This statute guarantees to writers, and to the booksellers who have acquired their writings, the faculty of exclusively selling copies for fourteen years, in all parts of Europe subject to the British empire. In the case where, at the expiration of fourteen years, the author was still living, a second term of fourteen years is given to him to sell or have sold exclusively copies of his work. The same statute grants to Trinity College, for the works that have been given or bequeathed to it, guarantees similar to those that had been granted to the Universities of England and Scotland, under the same conditions [^249].

Finally, on 29 July 1814, a fourth statute was made with the same views as the preceding ones. This statute, after having modified the existing dispositions relative to the number of copies to be deposited in certain public establishments, guarantees to authors, or to the booksellers to whom they have ceded their rights, the faculty of exclusively selling copies of their works for twenty-eight years. If at the expiration of this term, an author is still living, his enjoyment is prolonged for the rest of his life [^250].

The privileges guaranteed to colleges or universities are preserved for them.

The Anglo-Americans have adopted the principal dispositions of the statute of Queen Anne. Their laws guarantee to authors the exclusive right to sell and have sold, for fourteen years, copies of their works; the writers who are still living at the expiration of this term, have a second term of fourteen years. But this right is not guaranteed by American laws to all authors indistinctly; the guarantee is given only to citizens of the United States, and to persons who reside on the territory of the Confederation [^251]. The English laws are more liberal: they guarantee the same rights to all men, without distinction of nation [^252].

From the renaissance of letters until the beginning of our revolution, the guarantees given, in France, to literary property were all personal; that is to say, the government granted to each writer or to the bookseller to whom he had ceded his rights, the privilege of having his work printed and sold exclusively, for a determined time: this guarantee had no other duration than that which it pleased the government to give it. At the expiration of the prescribed term, the bookseller sometimes requested a second, which was rarely refused to him: its duration was more or less long, according to the importance of the work [^253]. The origin of these privileges is traced back to the beginning of the sixteenth century, in 1507. Louis XII is the first king of France to have granted them.

In times when it was held as a principle that to permit work was a domanial and royal right; that no one could engage in the exercise of a profession if he were not a master of arts and trades, and that kings alone could make masters, it was perfectly natural that there should be protection only for literary works whose publication had been formally authorized; the absence of any guarantee was the general rule; the protection individually granted was the exception; it was a monopoly, a privilege, a private law, privata lex.

The edict of 26 August 1686, the first by which general measures were taken on literary property, forbids all printers and booksellers from printing and putting on sale a work for which no privilege has been granted, under penalty of confiscation and exemplary punishment; the failure to insert the privilege at the beginning and at the end of each work was an offense punished by the same penalties.

When the government had thus placed a literary production under its protection, printers and booksellers were forbidden from making or having made counterfeits of it, not only domestically, but also abroad. The counterfeiting and the sale of counterfeit editions were punished by the penalties provided for in the privileges; in case of recidivism, the offenders were punished corporally, and stripped of their mastership, that is to say, of the right to work on their own account.

Thus, any literary composition that the power had not nominally taken under its safeguard was not only deprived of all protection, it was confiscated by the government, and the printer and the bookseller were punished.

This state of things lasted until the beginning of the revolution, at which time every person had the faculty of having his works printed and sold, without having obtained the authorization of the government. Literary property had been subjected, for centuries, to such arbitrariness, that it was thought a great deal was being done in its favor by no longer permitting the agents of the power to dispose of it according to their will. The government no longer had the faculty of confiscating writings published without its authorization; but printers and booksellers attributed to themselves the right to multiply the copies, and to sell them for their profit. The public authority, in ceasing to infringe upon this kind of property itself, therefore did not repress the infringements that private individuals committed against it.

If the private infringements committed against literary property at first remained without repression, one must blame less the intentions of the men who governed than the ignorance of the time. Writers, legists, and the magistrates themselves would perhaps have been very embarrassed if they had had to judge questions on literary property according to common law. How would the ones and the others have suddenly rid themselves of prejudices that had several centuries of existence? There is no one today who considers the faculty of working as a concession of the royal power; and yet, although in theory one rejects the maxims of the edicts of Henry III and Louis XIV, one often acts as if one had a sincere faith in them; one needs a special declaration from the authority to respect or have respected the products of man's labor, when these products have been delivered for a long time to arbitrariness.

From 3 November 1789, the date on which the first declaration of rights was promulgated, until 24 July 1795, the day of the publication of the first general law on literary property, every person had the faculty of having his works printed and sold, without authorization from the government or its agents; but, during this interval, French authors found themselves in the position in which English writers had found themselves before the statute of 1710. The public authority did not infringe upon literary property; but it did not repress the private infringements of which this property was the object, on the part of printers and booksellers. Neither the legists nor the magistrates had been able to rid themselves, in a space of three or four years, of the habits and prejudices of the absolute monarchy. One therefore did not have the thought of applying to literary productions the general principles on property; it was believed that it could be guaranteed only by a special law.

In the interval from 1789 to 1793, a law was passed, however, that granted partial protection to a particular kind of literary property, to dramatic compositions. The law of 13 January 1794 first recognized for every person the right to establish a public theater, and to have plays of all genres represented there, by previously making his declaration to the municipality of the place. It declared, moreover, that the works of authors dead for five years and more would be public property and could, notwithstanding all old privileges, be represented in all theaters indistinctly. Then it added that the works of living authors could not be represented in any public theater, in the entire extent of France, without the formal and written consent of the authors, under penalty of confiscation of the total proceeds of the representations for the profit of the authors. The heirs or assignees of the authors were declared, by the same law, proprietors of their works for the space of five years, starting from the death of the author. This law, which guaranteed to dramatic authors that their works would not be represented during their life without their consent, nor for five years after their death without the consent of their heirs or assignees, gave them no guarantee relative to the printing and sale of these same works.

In this respect, dramatic compositions were neither more nor less protected than all other literary productions [^254].

In 1795, a bill having been presented to the National Convention, in the interest of authors and their families, a deputy, M. Lakanal, reported on it in these terms:

“Of all properties,” he said, “the least susceptible to dispute, that whose increase can neither harm republican equality, nor cast a shadow on liberty, is, without a doubt, that of the productions of genius; and if anything can be astonishing, it is that it was necessary to recognize this property, to ensure its free exercise by a positive law; it is that a revolution as great as ours was necessary to bring us back on this point, as on so many others, to the simple elements of the most common justice.

» Has genius, in silence, ordered a work that pushes back the boundaries of human knowledge? Literary pirates immediately seize it, and the author walks toward immortality only through the horrors of poverty. And his children!... Citizens, the posterity of the great Corneille died out in indigence!

» Printing can all the less make the productions of a writer a public property, in the sense that literary corsairs understand it, because the useful exercise of the author's property can be done only by this means, from which it would follow that he could not use it without losing it at that very instant.

» By what fatality must it be that the man of genius, who consecrates his vigils to the instruction of his fellow citizens, should have to promise himself only a sterile glory, and not be able to claim the tribute of a noble labor.”

Following this report, the National Convention rendered a decree providing that the authors of writings of all kinds, composers of music, painters and draftsmen, who had pictures or drawings engraved, would enjoy, for their entire life, the exclusive right to sell, have sold, and distribute their works, in the territory of the republic, and to cede the property in whole or in part; the same right was guaranteed to their heirs or assignees for the space of ten years after the death of the authors. Finally, the same decree declared that the heirs of the author of a work of literature or engraving, or of any other production of the mind or of genius that belongs to the fine arts, would have the exclusive property of it for ten years. This decree is still in full force [^255].

If the National Convention had recognized, like its rapporteur, that an author is proprietor of his works on the same grounds that an industrious man is proprietor of the products of his labor, it would have limited itself to giving guarantees to properties of this kind, and would not have put limits on the faculty of enjoying or disposing of them. It is, in effect, in the nature of property to be perpetual and absolute, as it is in the nature of usufruct to be temporary and limited. To declare that a person and his heirs or successors will have in perpetuity the enjoyment or the usufruct of a thing would be in reality to attribute to them the property of it. For the same reason, to declare that a person will have for a determined time the property of certain things, and that at the expiration of this time he will return them whole (salvá rerum substantia), is in reality to recognize for him only a simple usufruct.

One would have expressed oneself in a much more exact manner if one had said that literary compositions, musical compositions, and engravings or drawings, would fall to the rank of common things after their publication; but that nevertheless the authors would have the usufruct of them during their life, and their heirs for ten years. By thus putting the language in harmony with the facts that were being established, one would have seen, at once, that the authors of literary works were placed in an exceptional case, and that, for them, property was not really recognized [^256].

It was very difficult, moreover, for the principles on literary property to be examined and debated with care when the National Convention was called upon to concern itself with them. A part of France was then invaded by the armies of the coalesced powers; civil war was kindled in the departments of the West, and factions were tearing each other apart in the interior. How, in such circumstances, could an assembly, in whose hands resided all powers, which was charged with all the cares of administration, and which had to re-establish internal tranquility and guarantee national independence, have engaged in philosophical discussions on property rights?

The law of 19 July 1793 had declared that works published during the lifetime of an author would fall into the public domain ten years after his death, and that the heir of a writer would have, for ten years, the property of the works he collected by way of succession. Thereupon, a difficulty arose: it was a matter of knowing whether, when works had fallen into the public domain, the heir of the author could make new editions of them, join to them the posthumous works remaining in his private domain, and retain the exclusive enjoyment of them. A decree of 1 Germinal, Year XIII (22 March 1805) resolved this question in a negative manner: it declared that, to preserve one's rights over posthumous works, it is necessary to publish them separately.

A decree of 5 February 1810 extended, for the profit of the widows and children of authors, the enjoyment that the law of 19 July 1793 had assured them. Article 39 declares that the right of property is guaranteed to the author and to his widow during their life, if her marriage agreements give her the right to it, and to their children for twenty years. Article 40 adds that authors, whether national or foreign, of any printed or engraved work, may cede their right to a printer, or bookseller, or to any other person who is then substituted in their place and stead for them and their successors in interest, as is said in the preceding article.

These dispositions, which in the beginning were illegal, have acquired the force of law through usage and jurisprudence; one is not admitted to contest their authority before the courts.

According to article 1 of the statute of the eighth year of the reign of Queen Anne, any person who, without having obtained the written consent of the proprietor, prints, reprints, or imports a work, or has it printed, reprinted, or imported, or who, knowing that it has been printed or reprinted without the consent of the proprietor, publishes, sells, or exposes for sale, or has it published, sold, or put on sale, incurs two penalties: the confiscation of all copies that can be seized, and a fine of one penny (about ten centimes) for each of the sheets found in his possession [^257]; this fine is applicable one half to the treasury, and the other half to the prosecuting party [^258]. These penalties are pronounced without prejudice to the damages caused to the proprietor, the evaluation of which can be made only by a jury, unless they are fixed by a voluntary settlement.

Authors having, in England, the exclusive right to sell their works only for a determined number of years, it has been necessary to establish the date of each publication, so that every person would have the faculty of knowing which are the writings she may have printed or may sell, without incurring any penalty. It is with this view that the statute of 1710 enjoins any person who proposes to publish a work to have its title exactly inscribed before publication in a special register, kept for this purpose by the corporation of book or paper merchants (the Company of Stationers). The failure to inscribe a work in this register would suffice to shield counterfeiters from the penalties pronounced against them; but it would not be sufficient to cause the proprietor to lose the rights that are guaranteed to him by the law [^259].

The act of the American congress, of 29 April 1802, requires, like the statute of the eighth year of Queen Anne, that the title of the work be registered before publication; it also requires the deposit of a certain number of copies, when the publication has been effected [^260].The law of 19 July 1793 authorizes authors, composers, painters or draftsmen, their heirs or assignees, to have seized and confiscated for their profit, by peace officers, all copies of editions printed or engraved without their formal or written permission.

This law does not pronounce a criminal penalty against the counterfeiters or distributors of counterfeit editions; it only obliges them to pay a determined sum to the proprietors by way of indemnity. For the counterfeiter, this sum is equivalent to the price of three thousand copies of the original edition; it is equivalent to the price of five hundred copies of the original edition for any distributor of counterfeit editions.

The penal code, after having defined counterfeiting, has placed it in the rank of offenses, as well as the introduction into France of any counterfeit edition.

Any edition of writings, of musical composition, of drawing, of painting or of any other production, it says, printed or engraved in whole or in part, in defiance of the laws and regulations relative to the property of authors, is declared a counterfeit; and any counterfeit is an offense.

The distribution of counterfeit works, the introduction onto French territory of works which, after having been printed in France, have been counterfeited abroad, are an offense of the same kind.

The penalty against the counterfeiter or against the introducer, is a fine of 100 francs at least and 2,000 francs at most; and against the distributor, a fine of 25 francs at least and 500 francs at most.

The confiscation of the counterfeit edition must be pronounced against the counterfeiter as well as against the introducer and the distributor.

The plates, molds, and matrices of the counterfeited objects must also be confiscated.

Any director, any theater entrepreneur, any association of artists, who has dramatic works represented in his theater, in defiance of the laws and regulations relative to the property of authors, must be punished by a fine of 50 fr. at least and 500 francs at most.

In the cases provided for by the preceding dispositions, the proceeds from the confiscations, or the confiscated receipts, must be remitted to the proprietor, to indemnify him by that much for the prejudice he has suffered; the surplus of his indemnity, or the entire indemnity, if there has been neither sale of confiscated objects, nor seizure of receipts, must be settled by ordinary legal channels [^261].

By fixing the rate of the fines by the number of sheets printed, the English law has put the penalty in proportion to the profits that the counterfeiters or the distributors of counterfeit editions believed they would derive from the execution of the offense. The dispositions of the French law have less foresight and wisdom: the counterfeiters or the distributors can, by aggravating the offense, earn a sufficient sum to pay the fine and assure themselves a profit. This is not possible when the fine rises as one multiplies the copies of the counterfeit work.

The disposition that leaves to the jury the care of fixing the indemnity due to the author or the proprietor of the counterfeit work is also wiser than that which determines this indemnity in an invariable manner. A person who has been injured in his property has a right to a complete reparation of the wrong that has been caused him; but, if one cannot justly give him less, he has a right to nothing more. The counterfeiter who had sold ten thousand copies of the counterfeit edition would owe the proprietor the value of all the profits resulting from the sale. He who had sold only five hundred would not be condemned to pay him the value of three thousand, even if one were to consider this payment as a sort of fine.

The law of 19 July 1793 had imposed on any person who would bring to light a work of literature or engraving, of whatever genre it might be, the obligation to deposit two copies of it at the Bibliothèque Nationale or at the Cabinet des Estampes of the republic; he who had not made this deposit was not admitted, in court, to prosecute the counterfeiters or distributors of counterfeit editions. However, the non-fulfillment of this obligation did not deprive the proprietor of a work of his property rights; as the law had not fixed a deadline for making the deposit, one was admitted to make it at any time, and from the moment it was effected, one was admitted to have even prior counterfeits seized [^262].

The law of 21 October 1814 imposed on every printer the obligation to declare to the public authority the title of the work he proposes to print, and the number of copies he is to draw from it. The omission of this declaration is punished by the seizure and sequestration of the work, and by a fine of one thousand francs for the first time, and of two thousand francs in case of recidivism. The seized copies are returned after the payment of the fine.

The same law imposes on the printer the obligation to deposit, before publication, five copies in one of the offices of the ministry of the interior, or at the secretariat of the prefecture, in the departments. It punishes the omission of the deposit with a fine of one thousand francs for the first offense, and of two thousand for cases of recidivism; but this omission in no way affects the author's rights over his work.

The English law, which prescribes the registration of the title of a work in an office of the corporation of book or paper merchants (Stationers), has for its sole object to give everyone the means of knowing the date of publication of each work. The French law, which prescribes an analogous obligation, was made only as a matter of police control; the declaration, before printing, had for its aim to attract the attention of police agents to the printer's workshops. The deposit before publication had for its object to facilitate the exercise of a sort of pre-publication censorship [^263].

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Notes

[^243]: Modern jurists, who have had to speak of the property of things acquired by labor or created by industry, and who have not known how to place themselves above the principles of Roman law or feudal law, have been greatly embarrassed. Blackstone, for example, could only found literary property on the right of the first occupant, admitted by the Roman jurists: Quod enim ante nullius est, id naturali ratione occupanti conceditur. (Instit. lib. II, tit. I, § 12. — Dig. lib. I, tit. VIII, leg. 3.) [^244]: Edict of Henri III, of 1581. [^245]: In an edict of 1691, Louis XIV expressed, though in less clear terms, the thought of Henri III. It belongs only to kings to make masters of arts and trades. It is known that the masters of arts and trades had the privilege of working or having work done. These royal pretensions were abandoned in France only toward the end of the eighteenth century. One finds their condemnation in an edict of Louis XVI, of 1776.Roman laws do not say a word about literary property; they only teach us that, in the case where a person writes on a material that is the property of another, the whole belongs to the proprietor of the material; it is evident that it is only a question, in this case, of the property of a copy. [^246]: One would be mistaken, however, if one imagined that at the renaissance of letters, all governments voluntarily placed obstacles to the progress of the sciences. Before the invention of printing, there existed in Paris, for the service of the University, twenty-four booksellers, two bookbinders, two illuminators, and two sworn writers. The members of this corporation were elected by the University, and enjoyed the privilege of paying no taxes; their number had been fixed by two royal edicts. An edict of Louis XII, of April 9, 1523, the first in which printing was mentioned, ordered the preservation of their privileges and liberties, pour la considération, dit-il, du grand bien qui est advenu en notre royaume au moyen de l'art et science d'impression, l'invention de laquelle semble estre plus divine qu'humaine : laquelle, grâce à Dieu, a été inventée et trouvée de notre tems par le moyen et industrie des dits libraires, par laquelle notre saincte foy catholique a été grandement augmentée et corroborée, la justice mieux entendue et administrée........ et au moyen de quoi tant de bonnes et salutaires doctrines ont été manifestées, communiquées et publiées à tout chacun : au moyen de quoy nostre royaume précède tous autres......... [^247]: See the preamble of the act of the eighth year of the reign of Queen Anne. [^248]: Richard Godson's, Practical treatise on the law of patents for inventions and of copyright, book 1, ch. I, p. 8. [^249]: 41 George III, ch. 107. [^250]: 54 George III, ch. 156. [^251]: The acts of Congress that give some guarantees to American authors or to foreigners who reside in the United States are of May 31, 1790, and April 29, 1802. [^252]: James Kent, Commentaries on american law, vol. II, part. V, lect. XXXVI, p. 306. The learned author of the Commentaries on American Law approves of the opinion that Blackstone had of literary property. He believes that before the statute of the eighth year of the reign of Queen Anne, an author had, by common law, the perpetual property of his works. [^253]: The privilege given, in 1643, for the History of France by Mézerai, for example, was for twenty years, counting from the day of publication. The privilege given to Grotius, for the sale of his Treatise on the Law of War and Peace, was for fifteen years. [^254]: The imperial decree of June 6, 1806, which destroyed the freedom that everyone had to open a theater and to have all sorts of plays performed there, respected, in other respects, the rights guaranteed to authors by the law of January 13, 1791. Article 10 declares that authors and producers/managers will be free to determine between them, by mutual agreements, the remunerations due to the former by fixed sums or otherwise. Article 11 charges the local authorities to strictly ensure the execution of these agreements. Article 12 adds that the proprietors of posthumous dramatic works have the same rights as the author, and that the dispositions, on the property of authors and its duration, are applicable to them, as is said in the decree of 1 Germinal, an XIII. [^255]: Law of July 19 and 24, 1793, art. 1. [^256]: The mendacious language that I point out here is found in all English works of jurisprudence that speak of authors' rights. — I say that literary compositions and other conceptions of the mind fall to the rank of common things, and not to the rank of public properties. It is evident, in fact, that things which everyone can seize in all countries are common to all like the air and the light. [^257]: The fine is today three pence (about thirty centimes). 40, George III, c. 107, s. 1; 54 ib., c. 156, s. 4. [^258]: The copies are confiscated for the profit of the proprietor of the manuscript; but they must be destroyed, and can only serve as waste paper. [^259]: 8, Anne, ch. XIX, § 2. -Godson's, Practical treatise on the law of patents for inventions and of copyright, bk. III, ch. I, p. 211. — The statute of the eighth year of the reign of Queen Anne required the deposit of nine copies of each work, for the Universities or for other public establishments, under penalty of five pounds fine, for each of the copies not deposited. This obligation was abolished by subsequent statutes. [^260]: J. Kent, Commentaries on american law, part. V, lect. 36, p. 308. [^261]: See art. 425-429 of the Code of Offenses and Punishments. [^262]: J.-B. Sirey, vol. IV, 2nd part. p. 15. [^263]: The Restoration government had found the means to combine preventive measures with repressive measures. It subjected all works to censorship after printing, but before publication, and had them seized before any copy had been put on sale. Then it prosecuted the authors, and had them condemned as if they had freely published their writings. Having demonstrated the injustice of such a procedure, in 1817, in the debates of a trial that had some celebrity at the time (Censeur européen, vol. IV, p. 232 et seq., and vol. V, p. 139 et seq.), the government wanted, in the same year, to have it consecrated by a law; but its project was rejected. Du nouveau Projet sur la presse, p. 4-12.