Primary Sources on Copyright (1450-1900)

Identifier: d_1793

Commentary on Fichte: ‘Proof of the Unlawfulness of Reprinting' (1793)

Friedemann Kawohl

School of Finance & Law, Bournemouth University, UK

Please cite as:
Kawohl, F. (2008) ‘Commentary on Fichte: Proof of the Unlawfulness of Reprinting (1793)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. References

1. Full title

Fichte: ‘Proof of the Unlawfulness of Reprinting: A Rationale and a Parable', Berlinische Monatschrift (1793), 443-482.

2. Abstract

This article by the philosopher Johann Gottlieb Fichte (1762-1814) is sometimes described as a fundamental text of what is generally referred to as the distinction between idea and expression in copyright law.[1] Fichte identifies the permanent feature of a book as "the form of the thoughts", the result of a twofold abstraction:[2] the intellectual part is abstracted from the physical part; and, then, within this intellectual part "the form of the thoughts" is abstracted from the ideas. Hence there are three types of property in a book. The physical book as a full property is completely at the owner's disposal. The ideas, after being shared with the public, become a common property of the author and his readers. But the abstract form necessarily remains the author's property, because it is "physically impossible" for this to be appropriated by another person. The commentary focuses on the late eighteenth-century discussion that Fichte was contributing to and on the impact of Fichte's theory on nineteenth-century German copyright.

3. References

Books and articles [in alphabetical order]

Borghi, M., "Owning Form, Sharing Content: Natural-Right Copyright and Digital Environment", in Fiona MacMillan (ed.), New Directions in Copyright Law (Edward Elgar Publishing: Cheltenham, 2007), 5: 197-222

Kretschmer, M. and Kawohl, F., "Johann Gottlieb Fichte, and the trap of Inhalt (content) and form: An information perspective on music copyright", in Information, Communication & Society (forthcoming)

Kretschmer, M. and Kawohl, F., "The History and Philosophy of Copyright", in Simon Frith and Lee Marshall (eds), Music and Copyright (Edinburgh U.P., 2004), 21-53

Woodmansee, M., "The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the 'Author'", Eighteenth Century Studies, 17, nr 4 (1984): 425-448

[1] Maurizio Borghi, "Owning Form, Sharing Content: Natural-Right Copyright and Digital Environment", in Fiona MacMillan (ed.), New Directions in Copyright Law, (Edward Elgar Publishing: Cheltenham, 2007), 5: 197-222; Martin Kretschmer and Friedemann Kawohl, "Johann Gottlieb Fichte, and the trap of Inhalt (content) and form: An information perspective on music copyright", in Information, Communication & Society (forthcoming). Martha Woodmansee's article "The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the 'Author‘", Eighteenth Century Studies 17, nr 4 (1984): 425-448, was decisive for the reception of Fichte within the discourse on the ideology of modern authorship. Much more specific and with no reference to Fichte is the U.S. copyright concept of an "idea-expression dichotomy", that to a certain extent is also applied to U.K. copyright - see Simon Stokes, Art and Copyright (Oxford: Hart Publishing, 2001), 48.

[2] On the concept of abstraction within copyright see Martin Kretschmer and Friedemann Kawohl, "The History and Philosophy of Copyright", in Simon Frith and Lee Marshall (eds), Music and Copyright, (Edinburgh U.P., 2004), 21-53.