Distinction entre la propriété littéraire et le monopole.

CHAP. 35: Distinction between literary property and monopoly.

The errors into which one has fallen on the subject of literary property have come from confusing the guarantees claimed for this property with the establishment of monopolies. After having made this confusion, it was natural that one should give limits to the enjoyment of an author or his heirs. One could even have dispensed with guaranteeing them for any time the faculty of exclusively selling or having sold copies of their works [^265].

But, it must be said at once, there is nothing in common between the establishment of a monopoly and a literary guarantee. A monopoly, in effect, is nothing other than the prohibition made, under more or less severe penalties, to all classes of the population, from engaging in a particular kind of industry or commerce, accompanied by an exception for the profit of one or several persons. The authority that creates a monopoly, in the interest of one or several private individuals, converts into an offense, with regard to all others, the innocent exercise of their faculties and the good use of their capital. It commits two assaults at once: one against the liberty of persons, the other against the disposition of properties.

Thus, for example, when the French government forbids, under heavy penalties, the exercise of the art of printing to all citizens, and establishes an exception for the profit of a few whose choice it has reserved for itself, it evidently creates a monopoly. It also creates a monopoly when it forbids, under certain penalties, all landowners from cultivating tobacco, and then permits this cultivation to a few. Finally, it creates a monopoly when it forbids all citizens from public teaching, whatever its object, and then permits it to a certain number of persons. In these various cases and in other similar ones, it is evident that one converts into an offense for the mass of the population actions that are not vicious by their nature, in order to favor the development of certain particular interests.

The men to whom the exploitation of a monopoly is granted had no pre-existing right to the exclusive exercise of the industry or commerce they exploit. If the government had made no act to attribute exclusively to certain persons the faculty of multiplying, by the press, the copies of a writing, how would these persons have succeeded in establishing their exclusive right to the exercise of this industry? How would the men to whom the monopoly of teaching has been given succeed in proving in court that they alone have the right to teach, if they were obliged to set aside the act of the public authority, which converts into an offense the exercise of a necessary and honorably fulfilled profession? How, finally, would one succeed in demonstrating that by the nature of things, the proprietors of such or such fields alone have the right to cultivate such or such a plant? Here, the right belongs equally to all; but this right is converted into privileges for the profit of a few.

One cannot give the name of monopoly to the guarantee given to each individual to freely exercise his profession or his industry, and to enjoy and dispose alone of the products he obtains from it; the same guarantee being given to all, there is a privilege for no one. Thus, the manufacturer to whom the laws assure the exclusive disposition of the product of his manufactory enjoys no monopoly. There is no monopoly either for the man to whom the laws guarantee the enjoyment and exclusive disposition of the house or the field of which he has the property. One could not, with all the more reason, place in the rank of monopolies the advantages that result for a man from his talents, his knowledge, his reputation, his family relations.

In what sense, then, would it be true to say that the guarantee given to literary property constitutes a monopoly for the profit of authors or their heirs? If the same guarantee is given to all, is it not evident that there will be a privilege for none? If each is proprietor of his works, who is it that can claim to be injured? What is the basis on which a man could found his right to multiply and sell for his profit the works of others?

If an act of the public authority were to forbid the generality of citizens from writing on such or such a subject, from treating such or such a science, and if it then established an exception in favor of one or several persons, then doubtless one could complain with reason of the existence of a monopoly; but there is nothing in common between such a privilege and the guarantee given to each author of the property of his works. This guarantee places no fetters on anyone's genius; it leaves to each the liberty to write on all subjects that have been treated. In putting Phèdre back on the stage, Pradon did not infringe upon the property of Racine; and Corneille would not have complained that his rights were being assaulted if it had pleased Cardinal de Richelieu to remake Le Cid.

The guarantee given to literary properties prevents no one from putting into practice the truths discovered or demonstrated by writers; from the moment a work is published, everyone can put into execution, in his particular interest, the principles whose exposition it contains. In this respect, the guarantee of literary properties differs essentially from the privilege given to the author of an industrial discovery; it is an obstacle to no kind of progress. A patent of invention has for its object to prevent anyone, except the inventor, from putting a new idea into practice; the publication of a writing has for its object, on the contrary, to put everyone in a position to practice all the truths that are contained therein; everyone even has the faculty of drawing them from it, and of publishing them in a more popular form.

If the guarantee given to literary property were placed in the rank of monopolies, there would be no reason not to also place there the guarantees given to all other properties, and especially to immovable properties. The domain of intelligence has no known bounds; everyone can have entry to it, and the place of each is in proportion to his genius. When a subject has been treated, each can therefore take it up again, and even cause the first who took possession of it to be forgotten. One cannot say as much of the domain of the land: when a space of terrain has become the property of one man, all other men are forever excluded from it. Yet the land susceptible of cultivation is far from being unlimited.

It is easy, moreover, to reduce to very simple terms the differences that exist between the guarantee given to a property and the creation of a monopoly. The establishment of a guarantee supposes, as has just been seen, a pre-existing right; the formation of a monopoly supposes the existence of no prior exclusive right. The guarantee recognizes for all the same rights; it constitutes the regime of equality before the law; it renders to each his own. The monopoly, on the contrary, strikes the mass of the population in the exercise of its rights; it creates exceptions and constitutes privileges; it establishes the regime of inequality.

If the protection accorded to authors, for the enjoyment and disposition of their works, is a guarantee given to a particular kind of property, and not the creation of a certain number of monopolies, it follows that these properties must be subject to the same laws as all others, unless one observes in their nature differences that require particular dispositions.

The motives for which many persons would today refuse to apply to literary property the rules that are followed with regard to all other kinds of properties are, moreover, very different from those that formerly caused the productions of the mind to be placed outside the common law. One no longer considers the power to arbitrarily forbid or permit labor as a domanial and royal right; one does not, in general, confuse the guarantee given to a property with the establishment of a monopoly. One is moved by other sentiments and by other ideas: one fears to see literary works that are believed necessary for the progress of the human mind withdrawn from commerce or carried to an excessive price. One would not hesitate to put productions of this kind on the same line as all other properties, if one had the certainty that everyone could always procure copies of them at moderate prices.

I will first remark that, in countries subject to despotic governments, one sees circulate freely only those works whose propagation inspires no fear in the public authority. To proscribe, in such countries, the literary productions that can give umbrage to the authorities, one has no need to buy them from the proprietors; one forbids them by an act of authority, and one punishes, if need be, the authors who compose them, the printers who multiply the copies, and the booksellers who sell them. In putting literary property on the same line as all others, one would not, therefore, worsen, in these countries, the state of the people, relatively to the works that displease the authorities; but one would favor the multiplication of those which, without offending the men invested with power, would be useful to the public.

The complete guarantee given to literary property would not, either, be an obstacle to the diffusion of enlightenment in countries where governments do not separate their interests from the interests of the public. If it happened that, after the publication of a work, the author, or those who had acquired it from him, did not wish to permit its reprinting, nothing would be easier than to overcome their resistance. The public authority would act with regard to them as it often acts with regard to the proprietors of immovable goods: the general utility would motivate their expropriation. The proprietors would be indemnified for the value of their properties, and everyone could then multiply the copies.

But there are many governments which, without being completely despotic, do not confuse their interests with those of the nations they govern. They do not have enough power to prevent the reprinting and sale of works that it is in the public's interest to see multiplied; but neither do they have intentions straight enough and pure enough to favor the propagation of those that vicious interests would tend to withdraw from commerce. Without power to prevent their reprinting and sale when the faculty of reprinting and selling them is given to everyone, they would not be without means to place obstacles in their way, if only the consent of a small number of proprietors were needed. Under the Restoration, the French government, for example, could not prevent the writings of Voltaire and Rousseau from being reproduced in an immense number of copies; but if these writings had been in the private domain, it would not have made them leave it to fall into the public domain. It is even permissible to believe that it would have made rather great sacrifices to acquire them, not with a view to spreading them, but in order to stop their multiplication.

It is incontestable, in effect, that, in the current state of civilization, the governments that have lost the power to prevent by force the propagation of certain writings have not lost the desire to do so, and that if indirect means of arriving at the same end were given to them, they would willingly make use of them. But can one avoid this danger only by reducing the rights of authors to an enjoyment of a few years, and by then depriving their properties of all guarantee, with regard to the printers and booksellers who wish to seize them? It seems that, to prevent important works from being stifled, either by the heirs of the authors, or by the persons to whom the property has been transmitted, it is in no way necessary to place them, after a few years from the day of publication, outside the protection of the laws.

In general, one allows oneself to be too preoccupied by the writings that concern religion or politics, the only ones that religious sects and governments are interested in prohibiting. When one casts one's eyes over a somewhat numerous library, one perceives at once that there exists an immense quantity of works that no one would wish to buy with a view to preventing their spread. The interest of the families or the booksellers who had the property of them would be to multiply the editions, as long as the public demanded new copies. The descendant of a famous writer might take it as an honor to preserve the property of the works he had received from him, and to spread them, as others take it as an honor to preserve the immovable inheritance they have received from their ancestors. To indiscriminately deprive all literary properties of guarantees, for fear that, among them, there might be some that the proprietors, by prejudice or by cupidity, would resign themselves not to have reprinted, is a measure that it would be difficult to justify.

When a work has been spread among the public, the guarantee given to the author does not prevent others from treating the same subject and reproducing the same ideas. The government or the sect that would buy it to prevent its reprinting would, by that very fact, encourage writers to produce new ones on the same subject. The greater the sacrifices it made in this regard, the more energetic would be the stimulus it would give.

In such a struggle, the advantage would infallibly remain on the side of enlightenment; for it is less difficult to exhaust the treasury of a prince or of a religious sect than to exhaust the human mind. The danger of seeing men abuse the guarantees given to literary property, to deprive citizens of certain productions, has therefore much more appearance than reality. In a short time, this danger would be completely null for all writings that truly interested the public.

It would be easy, moreover, to avert such a danger, if it were to be feared, without entirely disregarding the existence of literary property. The imperial government, considering itself as administrator of the public domain, imposed on booksellers the obligation to pay it a certain duty for the reprinting of all works that were no longer in the private domain. This duty, which, in the intention of the founder, was to be perpetual, was in proportion to the number of sheets of each work. Now, nothing would have been easier than to establish for works remaining in the private domain, after a certain number of years of full and entire enjoyment, a disposition analogous to that which had been adopted for works over which the heirs of the authors no longer had rights to exercise. Such a measure would not, doubtless, have been beyond all reproach; but literary property would not have remained completely without protection, and one would not have had to fear that the guarantee given by the laws would become a means of depriving the public of the possession of good works.The problem to be resolved relative to literary property, moreover, offers difficulties that are far from being as great as they appear at first glance. What, in effect, is the issue? It is a matter, on the one hand, of not paralyzing the causes that can determine a man to sacrifice his time, his talents, his fortune to the production of a work useful to the public. It is a matter, on the other hand, when a good work has been produced, of preventing it from being removed from commerce, as a result of baneful prejudices or sordid speculations.

If one wishes for the motives that are proper to determine a man to give his talents all the developments of which they are susceptible, to draw from his mind all that it is capable of producing of good and great, there is only one means: it is to guarantee him all the advantages that must be the natural consequence of his labors; it is not to permit others to usurp the reputation they can give him, or to appropriate the profits he can derive from them by selling them.

The commercial value of a work is not only in proportion to its intrinsic goodness; it is also in proportion to the time during which its sale is exclusively guaranteed to the author and to the persons to whom he has transmitted his rights. It is evident that a bookseller will pay that much less for a writing, as the time during which the exclusive enjoyment is guaranteed to him is shorter; he would give very little for it, if, after having sold the first copy, every bookseller had the faculty of having it reprinted, and of selling it for his profit. It is no less evident, on the other hand, that the less advantageous a work must be for the author, the fewer efforts and sacrifices one makes to produce it. Literary compositions which, in a short time, fall to the rank of common things, cost a little less to those who buy them; but they are also less good. The lack of guarantee is therefore, in the end, as harmful to the public as it can be for the writers.

The most energetic sentiment is that which leads men to the preservation and aggrandizement of their family; most of them make, to assure the existence and well-being of their children, sacrifices and efforts that they would not make for themselves. The governments that refuse to guarantee to children the property of the works produced by their fathers, therefore paralyze one of the causes that act on the human mind with the most energy. There are few men who, placed in the alternative of leaving their children without assured means of existence, or of renouncing the execution of a work of little profit for them, but advantageous for their nation, would not take this latter course. A government, moreover, must always avoid placing equally honorable sentiments in opposition, and placing citizens in such a position that, whatever course they take, they are condemned to renounce the accomplishment of a part of their duties. To aspire to do good for a nation by the violation of the laws of morality and the sacrifice of the most natural and dearest sentiments to the heart of man, is a pretension as vain as it is dangerous.

One would fall into another error if one imagined that, to leave to the sentiments that can act on the mind of a writer all their energy, it is necessary to adopt, for the transmission of literary properties, all the principles that are followed with regard to other kinds of properties. The Civil Code extends the right to succeed in the collateral line up to the twelfth degree inclusively: this is carrying the rights of kinship very far. At such a degree, the affections that arise from a community of origin are very weak, if indeed any exist at all. There would be little inconvenience in reducing the right of succession, especially for literary properties, to the direct line, and to the closest degrees of the collateral line.

Nothing would therefore be easier than to give to the causes that can bring about the execution of literary works useful to the public, all the energy of which they are susceptible. As for the danger of seeing the public deprived of works that it would be useful for it to obtain at a low price, it would be easy to prevent it: for that, one would only need to be willing.

In this chapter and in the four that precede it, I have spoken only of literary compositions; it is clear, however, that the truths I have exposed apply to other productions. One can say of musical compositions, of drawings or engravings, and of some other objects of art, what I have said of some works of the mind. If I have spoken only of one kind of production, it has been only to avoid repetitions that would have made my observations longer without making them clearer. Each can, moreover, apply what I have said, and what remains for me to say on the same subject, to musical compositions or to other objects of art.

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Notes

[^265]: In England, all jurists are far from having shared this error; we have seen, on the contrary, that when the question was thoroughly examined, almost all the magistrates were of the opinion that literary property should be governed by the common laws; but Parliament had already pronounced.