De la tendance des lois relatives à la propriété littéraire.

CHAP. 34: On the tendency of laws relative to literary property.

We have seen, in the preceding chapter, that the laws of England, the United States, and France assure authors only a temporary enjoyment of their works, and that thus literary property properly so-called is not guaranteed in any of these countries. It would be superfluous, consequently, to investigate whether it might not have been truly recognized and guaranteed among less advanced nations. In most other States, governments do not limit themselves to reducing it to a simple temporary enjoyment: they prevent its formation.

Nothing proves better that literary property has been neither understood nor guaranteed, even in the most civilized countries, than the different systems that are followed in this regard, and the variations that the laws have undergone, as enlightenment has made progress. In all countries, the rights of a proprietor over his movable or immovable goods are the same; there is a difference only in the forms by means of which their transmission is recorded. An Englishman is proprietor of a field, a house, a sum of money or a rich set of furniture, in the same manner as an American or a Frenchman. The rights of the ones are equal to the rights of the others, over the lands and over the other objects that belong to them, because there is only one nature of property, as there is only one human nature. Why is it not the same for the rights of authors over their works? For the reason that these rights have been considered as a creation of the public authority, as the exercise of a privilege, of a monopoly; whereas the former are considered as having an existence independent of the will of governments.

The three systems I have exposed rest on the same error, but they are not, however, equally bad; the worst of the three is that which the United States of America has adopted; that which now exists in England comes in second line; the least vicious is that which our laws and our jurisprudence have consecrated.

To appreciate these three systems, one must consider them from two perspectives: relatively to authors and their families, and relatively to the other members of society; one must then examine how they affect the interests of the ones and the others.

According to American laws, he who publishes a work, and who dies within fourteen years of the publication, enjoys for only fourteen years, either by himself or by his successors, the right to exclusively sell copies of it; he who lives more than fourteen years after the publication can, for twenty-eight years, exercise or have exercised the right to exclusively sell copies of it.

When such measures were adopted, it seems that an effort was made to set in opposition the interest of authors and the interest of the sciences, the love of riches and the desire for glory. The man of genius who consecrates his fortune, his health, his life, to composing a work fit to immortalize his name and his country, has just fourteen years to sell or have sold copies of it, and thus to recoup a part of his expenses. If he had employed his time in publishing, in his youth, frivolous novels, the laws would have granted him twenty-eight years to exercise his author's rights. The duration of the time during which a writer alone has the faculty of selling or having his works sold is therefore in inverse proportion to the time and fortune he has sacrificed to compose them. Is this not how one would have acted if one had had the design of encouraging frivolous productions, and of discouraging the publication of good works?

Writings that flatter the reigning passions and prejudices, those that are on the level of common intelligences, always sell rapidly, and assure authors and booksellers more or less great profits. Those which, far from flattering dominant ideas and passions, tend, on the contrary, to destroy baneful prejudices or to reform vicious mores, sell only slowly: success always depends on the future. The laws that make it a necessity for authors and booksellers to draw all their profits from the sale of the first years of publication, therefore tend to multiply the former, and to discourage the production of the latter.

The more a writer is ahead of his century, in whatever science it may be, the smaller the number of men who are capable of following him; at each step he takes, he leaves behind one of his listeners or his readers. It follows from this that works destined to make the human mind make great progress can, for a long time, be sold only to a small number of persons. The copies of the Système du monde, by M. de La Place, that the publisher sold during fourteen years, have probably produced much less money than the least popular of almanacs has produced in the same space of time. A government that desires to make the sciences progress, therefore makes a very bad calculation when it limits the right that a writer has to exclusively sell his work to the first years that follow the publication [^264].

The English laws contain the same flaw as the American laws, to which they gave birth; but, as they were reformed later, this flaw has been weakened. The time during which an author enjoys exclusively, in England, the faculty of selling his works, always equals the duration of his life, and it can never be less than twenty-eight years for himself or for his heirs. If, therefore, it happens that an author lives twenty-eight years after having published his work, everyone can, immediately after his death, seize this same work to reprint it and sell copies of it. If he dies before the expiration of the twenty-eight years, the persons who succeed him enjoy the remainder of this term.

Here the author is still interested in putting, in the publication of his writings, the least possible delay; for the time that he will live beyond the twenty-eight years that are granted to him by the laws, is for him, and especially for his family, an incontestable benefit. He is equally interested that, during his life or in the twenty-eight years that follow the publication, the booksellers sell the greatest possible number of copies of his work. He dead or this term expired, his family has no other interest in the success of his writings than an interest of reputation.

The French laws tend less strongly than the American laws and than the English laws to favor literary productions whose success must be rapid and fleeting, to the prejudice of those whose success must be slow and durable; but they have the same tendency. In all cases, the protection of the law extends to twenty years beyond the life of the author, for the profit of his widow or his children, or for the profit of the widow and children of the publisher to whom the work was sold. Each year that the author consecrates to the perfection of his writings is therefore a year taken from the time during which he will have the right to sell them or have them sold exclusively. He must therefore hasten, if he wants his works to be sold for a long time for his profit or that of his family; he must above all seek to please the present generation much more than future generations. Now, one will agree that laws that act in this manner on minds are favorable neither to the production of good works, nor to the well-understood interest of authors and their families.

In general, men make, to assure the existence and happiness of their children, more considerable efforts than to assure their own well-being. Nothing excites a person as much to preserve and increase his wealth as the certainty of transmitting it to his descendants: the spirit of family is the conservative principle of all properties. Let a government declare that in the future children will enjoy for only twenty years the goods that their parents have transmitted to them, and at that instant one will see the decadence of all private fortunes begin. One may still build houses, make plantations, or engage in other labors; but the costs will be calculated on the duration of the promised enjoyment. One will quite naturally seek to give to each thing only a duration equal to the time granted for the enjoyment, and the government, which will have believed it was enriching itself by seizing all successions, will gather only debris. It is in much this manner that things have happened in the countries subject to the Turkish empire. If such is the general tendency of the human race, it must be found in the authors of literary compositions, as in the other classes of society, unless one pretends that they form a particular species that is not subject to the general laws of humanity.

One will readily recognize that the men who engage in various branches of industry are generally prompted to do so only by the desire to increase or preserve their fortune, and by that of assuring the future of their families, and that a law that would cause the motives that determine them to do so to cease, would by that very fact put an end to their labors; one will even agree that the men who engage in literary compositions are subject to the influence of the two principal causes that determine the human species to engage in labor, the desire to procure means of existence and to assure a future for their families; but one will say that they are placed under the influence of particular causes, that they are moved by the love of glory or of celebrity, and by the desire to instruct and reform nations.

This is incontestable, not for all, but at least for some; it is very true that one sometimes finds men disposed to sacrifice their fortune and the well-being of their families to the love of glory, and to the hope of rendering great services to their fellow men; but, if the desire to be useful to humanity is powerful enough in a man to determine him to sacrifice the love of riches and even the spirit of family, there is little generosity in founding oneself on the existence of this desire, to demand of him such a sacrifice, and to refuse him guarantees that one would be obliged to give him, if he were moved only by the most common sentiments. One gives to the man who engages in the most common industry the guarantee that the riches he will produce will pass to his family, and will never be ravished from him, because one is well convinced that there would be no production without this guarantee; one supposes that the men who engage in literary labors have more elevated, more generous sentiments, and the supposition of this sentiment causes them to be refused a guarantee that would be given to them, if one had the certainty that it does not exist!

Nothing proves better how little one has consulted, in this matter, the laws to which human nature is subject, than the dispositions made, in some countries, with regard to universities and certain colleges. One admits, with regard to these corporations, the existence of literary property almost in its full extent, with a view, it is said, to encouraging the propagation of enlightenment. But can one reasonably believe that a writer will make, in the interest of a corporation, sacrifices and efforts that he would not make in the interest of his children? If one has considered only the pecuniary benefits that universities derive from the works that are given to them, they hardly deserve to be considered as an encouragement to the progress of the sciences. A good work that one can procure only by paying an author's right is infinitely more useful than ten mediocre or bad works that one can obtain without paying a similar right. The price of the books that one buys in the universities or in the colleges, for the instruction of young people, enters for little in the costs of their education, and the part of this price that reverts to the authors hardly deserves to be counted.According to French laws, the time during which a literary work is not delivered to all who wish to reprint it and sell copies is divided into two parts: one, whose duration is indeterminate, is the life of the author; the other, whose duration has been fixed by the laws. If, after having published a work, the author lives for thirty years, the enjoyment will be for fifty years; it will be for only twenty if he dies immediately after the publication. This might have some appearance of reason if it depended on each person to prolong the duration of his life; but, as death is not an event that one can postpone at will, the disposition is in inverse proportion to good sense and humanity.

One must not lose sight, in effect, that in the eyes of every man subject to the general laws of our nature, his interests and those of his family are identical; they form but one and the same interest. Let us suppose, then, that an author with a family lives for twenty or thirty years after having published his works; he will have the means to raise his children, and to have them enjoy for the same space of time the fruit of his labors. When death separates him from them, they will be completely raised, and will be able to provide for their own existence by their own means; yet, they will still have, for twenty years, the exclusive enjoyment of his works. If, on the contrary, he dies after the publication of his writings, leaving his children in infancy, the family, deprived of his help, will have only the same enjoyment of twenty years.

The death of the author is almost always a circumstance completely foreign to the sacrifices of time and fortune that the composition of the work required; it ought not, therefore, either to increase or to diminish its commercial value. But everything is contradiction in the dispositions made concerning literary works: is it a matter of depriving authors of all legal guarantee after a few years of enjoyment? One seems to believe that they are so placed above humanity that they will devote themselves to the greatest efforts for the least reward. Is it a matter of fixing the duration of the enjoyment granted to their children? One seems to believe that they are so selfish that they take no interest in their families, and that they ask only to place their goods in life annuities.

If one believed one could, without injustice, grant to authors over their works only a temporary enjoyment, it would have been necessary at least that each year of enjoyment taken from them by death be added to the years granted to the children; one would thus have avoided giving to the writings that a man publishes in his youth a premium over those he publishes in his mature years; to refuse to the latter advantages that are guaranteed to the former is not only to commit an injustice toward the author and his family, it is to disregard and sacrifice the interests of the public and the sciences.

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Notes

[^264]: Purely literary works need the consecration of time less than scientific works; it is not very rare, however, to see writings that at first brought no profit to the men who were their authors, later have great success. The most mediocre drama, played on one of our third-rate theaters, is more productive for the author than Athalie was for Racine. The tragedies of Chénier will perhaps make the fortune of the actors who know how to play them, while they will have produced nothing, either for that writer or for his heirs.