Part 4 (1/2)
I demand whether, if another act for printing should be made, it be not reasonable that n.o.body should have any peculiar right in any book which has been in print fifty years, but any one as well as another might have liberty to print it: for by such t.i.tles as these, which lie dormant, and hinder others, many good books come quite to be lost.40 45
This sounds like a strongly utilitarian argument, rather than one based on labor and natural right. Of course, we are not bound by what Locke or Jefferson thought. Still it is striking to see the turn to a utilitarian conception from both of them.
46
The Lockean tradition is not the only one, of course. Others believe that the property right stems from the unique personality of each individual--the configurations of your individual genius made manifest in the lines of your sonnet.
(Some limit the natural right to literary and expressive work; can a mousetrap or a drug molecule express the riddle and wonder of the human spirit?) Whatever their moral basis or their ambit, the common ground between these positions is the belief in a rationale for intellectual property rights beyond the utilitarian concerns of Jefferson or Macaulay.
47
The norms embodied in the moral rights or natural rights tradition are deeply attractive--at least to me. Many of us feel a special connection to our expressive creations--even the humble ones such as a term paper or a birthday poem. It is one of the reasons that the central moral rights in the French droits d'auteur, or author's rights, tradition resonate so strongly with us. The ent.i.tlement of an author to be correctly attributed, to have some control over the integrity of his work, seems important regardless of its utilitarian functions.1 48
Yet even as we find this claim attractive, we become aware of the need to find limiting principles to it. It gives us pause to think that Margaret Mitch.e.l.l or her heirs could forbid someone parodying her work. Are there no free-speech limitations? When other forms of authors.h.i.+p, such as computer programs, are brought into copyright's domain, does the power of the moral right decrease, while the need to limit its scope intensifies?
49
Then there is the question of length. How long is a natural right in expression or invention supposed to last? It seems absurd to imagine that Shakespeare's or Mozart's heirs, or those who had bought their copyrights, would still be controlling the performance, reproduction, and interpretation of their works hundreds of years after their death. If the rights are truly formed for a nonutilitarian purpose, after all, why should they expire? The person who first acquires property rights in land by work or conquest pa.s.ses those rights down to heirs and buyers with the chain of transmission reaching to the present day.
Should copyright follow suit? Even in France, the home of the strongest form of the droits d'auteur and of the ”moral rights”
tradition, the answer to this question was in the negative.
50
We owe a large part of the literary moral rights tradition to the immediate aftermath of the French Revolution. In France before the Revolution, as in England before the Statute of Anne, the first true copyright legislation, the regulation of publis.h.i.+ng was through a set of ”privileges” given to printers, not rights given to authors. Publishers would have a guild- enforced monopoly over certain t.i.tles. Their right was against competing publishers printing the list of t.i.tles over which they had the privilege. The Revolution abolished these privileges and, at first, put nothing in their place. On the other hand, as Carla Hesse's fascinating work reveals, there was intermittent interference by the Prefecture of Police with those who copied most flagrantly. One such publisher was sternly instructed by the police in these terms: 51
[A]ccording to the Declaration of the Rights of Man, liberty means only the freedom to do what does not harm others; and that it harms others to appropriate the work of an author, because it is an infringement of the sacred right of property; and that such an enterprise, if it were to remain unpunished, would deprive citizens of the instruction they await from celebrated authors like M. Bernardin de St. Pierre, because no author would want to consecrate his labors to the instruction of his age if piracy were ever authorized.41 52
Note the interesting mixture of the language of the ”sacred rights of property” and the strong utilitarian justification which cites effects on future literary production and the ”instruction” of citizens.
53
More expansive conceptions of the rights of authors and, particularly, of publishers were also offered. Even before the Revolution, publishers had been making the arguments that their privileges were a form of property rights and had the very good sense to hire the young Diderot to make those arguments. Hesse quotes his words: 54
What form of wealth could belong to a man, if not a work of the mind, . . . if not his own thoughts, . . . the most precious part of himself, that will never perish, that will immortalize him? What comparison could there be between a man, the very substance of man, his soul, and a field, a tree, a vine, that nature has offered in the beginning equally to all, and that an individual has only appropriated through cultivating it?42 55
Diderot's theme is that authors' rights should actually be stronger than other property rights for two reasons. First, they relate to the very essence of the person, the most ”precious part of himself.” Second, they are the only property rights over something that has been added to the existing store of wealth rather than taken from it. Authorial property, unlike property in land, adds to the common store rather than detracting from it. Locke believed that a just a.s.sertion of property rights must leave ”enough and as good” for others in the society. What could better satisfy this condition than a property right over a novel that did not exist before I wrote it? One hundred years later Victor Hugo echoed the same thoughts in a speech to the Conseil d'Etat and pointed out at the same time that literary property rights could potentially ”reconcile” troublesome authors to society and state.
56
You feel the importance and necessity of defending property today. Well, begin by recognising the first and most sacred of all properties, the one which is neither a transmission nor an acquisition but a creation, namely literary property . . .
reconcile the artists with society by means of property.43 57
Diderot wanted perpetual copyrights for authors and, agreeably to his employers, a correspondingly perpetual printing privilege. If the author's heirs could not be traced, the copyright would devolve to the current publisher.
58
But as Hesse points out, there was another view of literary property--a much more skeptical one put forward best by Condorcet. This view is also an influential part of the heritage of the droits d'auteur, even if it is downplayed in its contemporary rhetoric. Condorcet began by framing the question of literary property as one of political liberty. ”Does a man have the right to forbid another man to write the same words that he himself wrote first? That is the question to resolve.”44 Like Jefferson, Condorcet is utterly unconvinced that property rights in a book can be compared to those in a field or a piece of furniture which can be occupied or used by only one man. The type of property is ”based on the nature of the thing.” He concluded, again in language strikingly similar to Jefferson's and Macaulay's, that literary property was not a real property right but a privilege, and one which must be a.s.sessed on a utilitarian basis in terms of its contribution to enlightenment.45 59
Any privilege therefore imposes a hindrance on freedom, placing a restriction on the rights of other citizens; As such it is not only harmful to the rights of others who want to copy, but the rights of all those who want copies, and that which increases the price is an injustice. Does the public interest require that men make this sacrifice? That is the question that must be considered; In other words, are [literary] privileges needed and useful or harmful to the progress of enlightenment?46 60
Condorcet's conclusion was that they were not necessary and that they could be harmful. ”The books that most furthered the progress of enlightenment, the Encyclopedie, the works of Montesquieu, Voltaire, Rousseau, have not enjoyed the benefits of a privilege.” Instead he seemed to favor a combination of ”subscriptions” to authors with a trademark-like protection which allowed an author to identify a particular edition of his work as the genuine one, but which also allowed competing editions to circulate freely. In such a market, he believed that the price of the competing editions would fall to ”natural”
levels--today we would call it marginal cost--but the original author would still be able to charge a modest premium for the edition he authorized or certified because readers would prefer it as both more accurate and more authentic. One possible a.n.a.logy is to the history of the fas.h.i.+on industry in the United States. It operates largely without design protection but relies heavily on the trademarks accorded to favored designers and brands. There are ”knockoffs” of Armani or Balenciaga, but the wealthy still pay an enormous premium for the real thing.
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Condorcet also insisted that whatever protection was accorded to literary works must not extend to the ideas within them. It is the truths within books that make them ”useful”--a word that does not have the same luminance and importance for us today as it did for the philosophers of the Enlightenment or the French Revolution. He argued that any privilege given the author could not extend to ”preventing another man from exhibiting the same truths, in perfectly the same order, from the same evidence” or from extending those arguments and developing their consequences. In a line that Hesse rightly highlights, he declares that any privileges do not extend over facts or ideas.
”Ce n'est pas pour les choses, les idees; c'est pour les mots, pour le nom de l'auteur.”
62
In sum, Condorcet favors a limited privilege, circ.u.mscribed by an inquiry into its effects in promoting progress and enlightenment. The privilege only applies to expression and to ”the author's name,” rather than to facts and ideas. This is very much within the tradition of Jefferson and Macaulay.