Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: f_1793

 

Commentary on the French Literary and Artistic Property Act (1793)

 

Frédéric Rideau*

Faculty of Law, University of Poitiers, France

 

Please cite as:

 

Rideau, F. (2023) ‘Commentary on the French Literary and Artistic Property Act (1793)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

 

1. Full title

2. Abstract

3. A projet at the heart of the Convention

4. Lakanal’s report

5. What was to be legally secured…

6. Lakanal’s language

7. References

 

 

1. Full title

 

Decree of the National Convention, of 19 July 1793, regarding the property rights of authors to writings of all kinds, of composers of music, of painters and illustrators (with the report of Lakanal)

 

2. Abstract

 

The Decree of 19 July 1793, probably the most famous piece of legislation of the French sources for intellectual property, confirmed the recognition of a literary and artistic property right, secured from then on by national law. In spite of its mere 7 articles, it was to have an exceptional endurance, even though, as we shall see, it had been voted upon by the National Assembly without any specific debates in an increasingly chaotic political context. For the first time, it succeeded in dissociating the question of the freedom of the press and literary property, in a concise report from the deputy Lakanal (a fresh member of the Committee on the public instruction) in charge of the presentation of the bill before the National Assembly (the Convention). It also aimed at the protection of works of all kinds but under a limited duration assured by law, illustrating again the precarious and implicit balance between individual and public interests, and between private and “public property”. Yet, the language used by Lakanal, incorporated key elements of the enlightenment debates within literary property, on which judges and legislators would frame principles throughout the nineteenth century until 1957.

 

3. A projet at the heart of the Convention

 

Since the Sieyès (f_1790) and Hell bills (f_1791a) did not succeed, the right of reproduction was still a pending question in 1793, left alone to be secured by law, after the right of representation, but also the protection of inventions, had been respectively recognized under the reporting of Le Chapelier (f_1791) and Boufflers (f_1790a). The Revolution was at the time deeply troubled by the failure of the September 1791 constitution and the insurrectional month of August 1792, leading to the formal abolition of the monarchy the 21^st of September. Then followed times that would lead to deadly political confrontations after the “procès” of Louis XVI, notably the elimination of the “Girondins” from the Convention in June 1793. This volatile situation involved increasing political surveillance, starting with the “Law of Suspects” (17 September 1793) against those who could doubt that a republican regime was the only way forward: as the deputy Joseph Lakanal put it a year later, in 1794, there had been indeed a time when the National Assembly thought that “monarchy” and “freedom” were “compatible”.[1] These divisions had also some resonance on the debated balance between natural rights: discussed shortly after the fall of the Girondins, the Montagnards attempted in this perspective to reappraise the hierarchy between these rights in a jacobine constitution, also conceived to enlighten new citizens for the “progress of the public reason”.[2] Within this constitutional text of 24 June 1793, the new Declaration of the Rights of Man and of the Citizen, in its article 1, stated that the goal of a society is the common happiness (the “bonheur commun”), the government being nevertheless instituted and bearing its legitimacy to secure individual natural rights. Property was thus still proclaimed as such, but then preceded, contrary to the 1789 Declaration, by equality, freedom, and security (“sureté”).[3] Although this constitution was never applied, it illustrates again this persistent instability since the beginning of the Revolution, relating to its transitional nature, a situation, as we have seen, that Sieyès was already addressing with his projet on the freedom of the press.

The Decree of 19 July 1793 relating to literary and artistic property was passed at the heart of this difficult period, but, it appears, without substantial recorded discussions or debates – starting with the nature of the right involved –, at least from the usual sources, notably from the Moniteur, where the parliamentary discussions were made available to the Nation and its citizens since 1789.[4] The procès-verbaux of the Committee on Public Instruction, under which authority the deputy Lakanal would soon report, provides itself only very few indications on the proceeding history of the bill and how it finished its course before the floor of the Convention: on 20 February 1793, a report on counterfeiting (“un rapport sur les contrefaçons”) by Marie-Joseph Chénier, an active political protagonist of the Revolution (member of the Club des cordeliers) and playwright who countered in 1792 the theatre directors, was announced to be presented soon to the Convention.[5] Although the Moniteur, the first day of April, expressed its imminent presentation, it did not reach the floor until Lakanal’s own bill on literary and artistic property in July 1793.[6] Meanwhile, it appears that some writers – the novelist Jean-Baptiste Louvet – wrote to the Convention for some intervention against “piraters, who are destroying the book trade”, these solicitations going back from February 1792.[7] Unfortunately, not much more can be inferred from this Committee’s composition itself. The Committee on the Constitution had been suppressed on the 16 February 1793, and some of its members – Barère, Condorcet and Sieyès – had been asked to join the Committee on Public Instruction, also renewed by half to form, from 28 February 1793, an institution of around 25 members, among whom were Baudin and Chénier (already members in 1792), and more recently Lakanal (a new comer under the last renewal).[8] The composition of this Committee would be again modified in June, but by this time, Condorcet, who feared for his own safety, ceased to appear at the Convention and at its the sessions.[9] Apart from these continuous changes within the revolutionary institutions, it is only known that the Committee still included Baudin, Lakanal and Sieyès at the beginning of July 1793.[10] Probably because these members worked within the same body, Lakanal was going to rely, in his own name, on a report written by Baudin in the end of February concerning the rights of dramatic authors and following their protestations against the “entrepreneurs de spectacles”.[11] As concise as it was to remain famous,  Lakanal’s final short version, with Baudin’s “borrowed” parts, introduced the last revolutionary  literary and artistic property legislation, embracing – unifying – these two fields of creation and for the first time fully distinguished from questions pertaining to freedom of the press.

 

4. Lakanal’s report

 

Lakanal’s choice of concision in reporting this expected crucial legislation seemed thus radical per se.[12] Along the final words to recognise (“consacrer”) a law which would form the “Declaration of the Rights of Genius”, the small paragraph mentioning Corneille’s lineage and the literary “pirates” seizing the product of genius did not appear in Baudin’s report.[13] The report was just a few lines (as contrasted to previous reports – see notably Boufflers’ report (f_1790a)) and we will come back to the language and the syntax used infra. The emphasis was essentially put on two combined core elements of literary (and artistic) property, i.e. that “positive” legislation had to secure the exercise of such a property and that publication did not make the work a public property.

 

As regards the first aspect, Joseph Lakanal meant law (“loi”), that is the highest and the fullest possible legitimate revolutionary act, emanating from the elected representatives of the Nation, and in itself fundamental political progress. And with the law, the Convention sought to protect the “free exercise” of an evident right of property. In doing so, it also confirmed a choice already made under the legislation of 30 August 1777, when the king conceded to redefine in the most striking way book trade privileges to guarantee the authors’ natural rights (see f_1777a). For obvious political reasons, along with what the abolished privileges symbolised, Lakanal was not going to refer in any way to such a filiation with the Ancien Régime: logically it was claimed that only a Revolution “like ours” had, at last, been able to satisfy the “the simplest elements of common justice.” But the confusion between these two distinct elements – the asserted goals of a new political era and securing a property right – have sometimes concealed, it seems, the coherent filiation of this common recognition beyond 1789, starting with a biased or equivocal analysis of the royal decrees.[14]

 

Another constant preoccupation in these debates was the peculiar vulnerability of such a right of property, stemming from the paradox that it is through the act – the choice – of publication that the most hidden and intimate part of an author becomes suddenly fully external and public. The preoccupation is here again explicit in Lakanal’s report: this is sort of relief for an author making the literary work a “public property”, but that must not be misunderstood by “buccaneers” (“corsaire”) or “pirates”. Following Le Chapelier’s own report on dramatic works, François Hell, in 1791, endeavoured to clarify the incorporeal consequences of this passage from this internal state to the “light”, the “spiritual” part of literary property and becoming inevitably through publication, “the property of all”.[15] This meant, as Baudin himself pointed out in his report, quoting Boileau (as the “greatest critic”), that as soon as an author, here a poet, has his work printed, he is in a way “enslaved” by his public, subjected to all possible judgements from his readers.[16] But the corporeal nature of the copies of the literary printed work deserved ultimately the protection of the law, since the only way to beneficiate from his right was through this exposed “material” – to use once more Hell’s formulation – part.

 

Lastly, could such a natural right, its “increase” (“accroissement”), be considered as a potential burden on other rights, “liberty” or “republican equality”? In relation to the latter, it seems that Baudin had used the expression in 1792 in the context of defending the authors’ cumulative interests in both the representation and the publishing of their plays as not being exorbitant against the freedom of the comedians and theatres.[17] Lakanal chose to maintain this enigmatic expression for literary property, but this was not fortuitous, as the republic envisioned by the Convention was of course anxious not to reconstitute any privileges and social orders. But even though the hierarchy between natural rights had been revaluated in the constitutional attempt of June 1793, in theory, individual effort and work devoted to increase one’s own property, if not built upon the numerous “usurpations” of the past, did not “denature civic equality” – to use Sieyès’s words in Qu’est-ce que le Tiers-État? –, and accordingly, still deserved the protection of the law.[18] Again, the traditional balance between the full exercise of these rights and their potential social “abuses” – an explicit question raised by the Declaration of Right of Man and of the Citizen –[19] remained acutely difficult to determine.

 

Subsequently, could this balance be conditioned by the fact that authors had spread the enlightenment – as François Hell underlined in 1791 – or because literary geniuses were pushing back the boundaries of “human knowledge”, as Lakanal put it? There was no clear answer in the report either. But even though the exercise of literary and artistic property was so decisively subordinated to the law and had been unambiguously asserted in 1793 as a natural right, the patrimonial effects of this “incontestable” right had been nevertheless limited in duration. The protection which remained was for every type of literary and artistic work.

 

5. What was to be legally secured…

 

Indeed, among its mere seven articles, article 2 of the 1793 act endorsed the transfer of the right of reproduction to the author’s “heirs or transferees”, for a period of ten years post mortem auctoris. Such a limit had been already proposed in the Sieyès provisional projet in 1790, but its principle was also the result of a “compromise” settled in August 1777.[20] Consequently, following this first phase of protection by the law after publication, the author’s “material” interests, not secured anymore, became fully public. However, the absence of explicit debates on this precise duration would unfortunately foster discussions dominated by its extension during the whole nineteenth century (and after), starting by the discussions held by the Commission on Literary Property, constituted in 1826 to propose a first reform of the 1793 act.[21] Still, contrary to what occurred in1844 for the “brevets d’invention” (5 July 1844 on patents), the property right qualification would never be suppressed by following legislations. The Court of Cassation decision, in 1887, evoked literary property as not being a property in the “proper” sense of the term.[22] But it remained an isolated occurrence from the high judges and even when they recognised the moral rights in 1902 (the Lecocq case – see infra), they did so relying on the property secured in 1793.

 

As to the literary and artistic property works to be protected, the versatility of the Ancien Régime privileges system potentially allowed every type of works to be promoted by the king. However, to elaborate from 1789 a legislation from “simple” and “clear” principles to be applied by the judicial system – while being accessible to the citizens themselves – was definitely a complex challenge.[23] The Hell projet attempted to clarify what was the object of literary property, but the 1793 Act, in its article 1, reached an exceptionally perennial formulation simply encompassing literary works (here “writings”)  “of any kind” – “en tout genre” – with, in addition, its enigmatic article 7 mentioning “any production of the mind or of genius”. It meant that, for example in the field of artistic property, the protection of sculptures, despite not being explicitly mentioned in article 1, was soon to be found by the courts to be an undeniable production within the domain of the fine arts.[24] In the same perspective, although no threshold of protection had been specified in the law, judges thus soon inferred from the combination of these articles, in a landmark decision of the Court of the Cassation (2 December 1814) supported by the Chief Prosecutor (procureur général) Merlin de Douai, that anthologies or more generally compilations, could not be excluded by principle if they also bore an author’s own “conceptions” (“conceptions”).[25] Confronted to new means of literary or artistic expression, notably news transmitted by telegraph, or photography, the judges finally developed, maybe not so surprisingly (see next paragraph), the idea that, to be protected under the 1793 act, a work had to bear the “imprint of its author's personality”.[26] Of course, to combine the latter with the exclusion by the same courts of any criterion based on the (aesthetical) merit would inevitably provoke difficulties, but their role, in determining the scope of protection, and a pertinent definition of what had to be protected, constituted a rich jurisprudence (in the French meaning, i. e. “case-law) throughout the whole nineteenth century and until the 1957 act.

 

To conclude with the nature of the right secured under these provisions, article 6 required that two copies of works “of literature or engraving, of whatever genre” had to be deposited with the National Library or the “Cabinet des Estampes of the Republic”. Although the same article specified that “those who fail to do so shall not have standing to bring legal proceedings [être admis en justice] against counterfeiters”, this obligation has been analyzed as being more consistent, after the Sieyès projet, with a utilitarian interpretation of the revolutionary legislation, or to say the least, as not being compliant with “the notion of a right inherent in the author”.[27] Eugène Pouillet, in light of this legal requirement – but also its judicial interpretation through the nineteenth century – considered that it could not express “more clearly” that property did not “depend” on the deposit, but only “the admissibility of the action against counterfeiting”.[28]

 

The definition of a literary and artistic work and the scope of protection are obviously essential matters, but for the reasons discussed above, the Lakanal’s language itself has been mainly questioned because of the inherent formal contradiction between the terse provisions of the law and an emphatically promoted “incontestable property”.

 

6. Lakanal’s language

 

As already mentioned (see f_1790), attention has been put on the Sieyès projet (on the freedom of the press) as being the most influential piece of legislation of the Revolution on droit d’auteur, probably starting by the fact that it inaugurated this solution of a right of reproduction limited to 10 years after the author’s death. But while a limited literary property right was simultaneously recognized and “assured” in this bill, it did so with moderation, simply compliant with this limitation, that is without any of the “emphatic” or “pompous” Lakanal’s words.[29]  It has been thus summarized that the Convention had subsequently been “able to pass a slightly revised version of the Sieyès law, now touted as a ‘Declaration of the Rights of Genius’.”[30]

 

Yet, beyond this suspected politician language, it must be firstly pointed out that the words selected by Lakanal in his report presumably carried more than the bare technical, juridical, aspects of a right of property.[31] Indeed, in these historical circumstances, from its evident connection with individual freedom, it also bore an “affective” dimension. Characterized thus by the “plenitude” of the right of its holder, it explains, for example, that the judges even considered in 1826 that, “en droit”, families’ patronymic “is their exclusive property” although it did not obviously bare any jus disponendi (the right of alienation).^[32] More importantly, following Baudin’s formulation, itself far from being original, Lakanal relied on a hierarchy established since the beginning of the eighteenth century between the great difference between the objects of property rights: the literary works being promoted were “at least” as incontestable as a right on land, but in fact the most undisputable of all.[33] The word “incontestable” itself had been used by Linguet in 1774 and 1777, in almost the same formulation than it would in 1793, but also by Antoine-Louis Séguier in 1779 in his large report produced to defend the king’s legislation.[34] And this is not surprising that, referring explicitly to the latter, Joseph-Marie Portalis, during the debates of 1839 before the Chambre des Pairs, went also above the 1793 Act to express under these ambitious formulations a “doctrine” which was neither “new” nor “unknown”.[35] From this filiation, probably rather than under a Germanic influence of “rights of personality”, he then claimed in the same intervention his belief that what an author generates from “his own substance” is “still him, outside of himself”, a property “by nature, by essence, by the indivisibility of object and subject”.^[36] Somehow, Portalis expressed in his own words the inherent double nature of the literary and artistic property, between “spiritual” – “like the rays of the sun” to use F. Hell’s own language – and “material” parts transmitted, at different levels, to the public, and therefore requiring potentially different ways of securing them before the common interest. The point is that behind what appears to be a pompous phraseology seemed to exist a common understanding that literary property was peculiar: it did not simply only entail economic or patrimonial effects, but was a “reality” sufficiently shared by authors, legislators, and judges. Or, in more trivial terms, the “declaration of the rights of genius”, because of its familiar language, already left – still without being able to solve the complexity incarnated in a literary or an artistic creation – all options open…

 

In fact, along a subjective threshold of protection developed from 1814 by the judges on the sole basis of this legislation, some non-pecuniary interests, starting by the right of publication – a right, for an author, “incommunicable, as his will, his conscience” believed Portalis –[37] would be welcomed by the courts to secure through the nineteenth century, from the years 1820.[38] Marcel Plaisant, one of the protagonists of the major reform of 1957 on literary and artistic, indicated thus that Kohler himself “confessed that the German writers have had the sole merit of organising as a system the results provided by the French courts”.[39] For him, the “men of the Revolution”, by giving the “name of property” to the droit d’auteur, were also trying to strengthen it with the “prestige of the past”, in search for the best harmony between the word and the (literary) thing (“la chose”) itself:[40] in other terms, the extreme difficulty to define in juridical words this “high sovereignty”, this sort of “eminent domain” which is supposed to arise from an author’s both literary and artistic conceptions, beyond the economic consequences of the publication of the work.[41] Maybe Lakanal’s language, with its inherent imperfections, was in this sense another protagonist of a “projet magnifique” in introducing the 1793 act; magnifique because it was out of reach, “impossible”, that is “to write the law of reality”.[42]

 

7. References

 

Dock M.-C., Étude sur le droit d’auteur (Paris : LGDJ, 1963)

 

Ginsburg J., “A Tale of two Copyrights: Literary Property in Revolutionary France and America” (1990) 64 Tulane Law Review 991

 

Hesse, C., “Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, 1777–1793” (1990) 30 Representations,

 

Hesse, C., “The Rise of Intellectual Property, 700 B.C-A.D 2000 : An Idea in the Balance,” Deadalus, Vol. 131, N°2, On Intellectual Property (Spring, 2002) (MIT Press)

 

Pfister, L., L'auteur, propriétaire de son œuvre ? La formation du droit d'auteur du XVIe siècle à la loi de 1957 (Strasbourg PhD thesis, 1999)

 

Plaisant, M., La création artistique & littéraire et le droit (Paris : Rousseau & Cie. Eds, 1920), re-edited Alexandre Portron with a large presentation : La creation artistique et littéraire et le droit – presentation par Alexandre Portron (Paris : Dalloz, Biblothèque Dalloz, 2022)

 

 

* My sincere thanks to Dr Elena Cooper for her precious editorial assistance on this commentary.