Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: f_1690s

 

Commentary on the opposition between Parisian and Provincial Booksellers (1690s)

Frédéric Rideau*

Faculty of Law, University of Poitiers, France

 

Please cite as:

Rideau, Frédéric. "Commentary on the memorandum on the dispute which has arisen between the booksellers of Paris and those of Lyon (1690s)." Primary Sources on Copyright (1450-1900). Edited by L. Bently and M. Kretschmer, www.copyrighthistory.org.

 

1. Full title

2. Abstract

3. Book trade monopolies in the seventeenth century

4. Publishing and “collaborative” labours as the source of exclusivity

5. Towards a redefinition of book trade privileges? 

6. References

 

1. Full title

Memorandum on the dispute which has arisen between the booksellers of Paris and those of Lyon, regarding the privileges and extensions of these which the King grants for the printing of books

 

2. Abstract

Following the serious weakening of the public domain entailed by the royal decrees and regulations of 1665 and 1686, this memorandum was one of the first examples, if not the first, from the Parisian booksellers to describe the right of exploitation safeguarded by privileges in terms of private property. In this perspective, as the commentary will endeavour to show, it certainly anticipated in some respects the 1725 famous plea of the Parisian guild by Louis d’Héricourt, since book trade privileges became explicitly regarded essentially as a legitimate means to secure the personal labour of authors and booksellers contractually invested in the publication of a literary work. However, at the time and under a monarch such as Louis XIV, this was obviously not attempted without rhetorical precautions, not to say equivocations or contradictions. Moreover, in addition to the traditional references to the public interest, the new system supported by the Parisian booksellers in order to defend their monopolies did not yet give to authors the central place they would theoretically find with Héricourt in the Eighteenth century.

 

3. Book trade monopolies in the seventeenth century

During the second part of the seventeenth century, still within a typical corporative framework, it became more and more difficult, not to say impossible, for the provincial booksellers, to obtain the king’s authorization and protection to publish their books. Privileges were mainly provided to the most accommodating Parisian booksellers, provoking during this period what Jean Quéniart rightly called a provincial « anaemia » in the trade.[1] The royal legislation for the book trade, formerly counterbalanced by the Parlement of Paris, revealed itself, through its lack of explicit rationale for the duration (and extensions) of privileges, to be continuously applied in favour of the members of the Guild of Paris, especially from 1665, and through the 1686 royal Édit.[2] All endeavours to legitimate such monopolies were nevertheless not superfluous, since what was at stake was in particular the renewal of the regulations provided by the latter, discussed in 1694 and 1695. The tension resulting from this growing disequilibrium between Paris and the provinces was thus well illustrated by this anonymous memorandum, but probably elaborated at the time by the lawyer Aubry le jeune on behalf of the Parisian members of the Communauté des libraires et imprimeurs.[3] These tense exchanges, with the royal government as an arbiter also interested by its censorship policies, did not in fact change the spirit of the 1686 Act, which would be applied to the whole kingdom.

The objections of the provincial booksellers were of course denounced on common interest basis, as still shown at the beginning of the 1650s, for example by the important plea of Antoine Vitré. At the time, this eminent Parisian printer was primarily pointing out that, for the sake of public utility, the king’s protections were all the more necessary as some printers or booksellers, even within his own guild, did not demonstrate the “honesty” that was supposed to guide these internal relations. Within the corporative system, and between the most devoted and serious of its members, ideally, privileges should not even be necessary. Emphasis was still put on guild principles and policy, and the expanding flaws which affected the skills of new trade members, not only in Paris, but in many other towns (like La Rochelle, or Chastelerâut), allowing unqualified printers or booksellers to get through the market with books filled with typographic faults on bad paper.[4] Similar complaints had certainly been formulated since book trade privileges emerged, and counterfeiting itself was almost as old as the printing market. Yet, the fact that an influential guild member feared so explicitly this apparent ineluctable loss of collective core values and the inefficient selection of faithful masters to the art of publishing, constituted a precious testimony that the traditional argumentation pertaining to privileges and their increased durations over the time, seemed decidedly ill-adapted in a changing society. In fact, although Aubry himself later did not forget to stigmatize provincial booksellers on these grounds, especially their “envy” “to put forward the pretext of the public good, in order to deceive that very public” and their fallacious claims on the advantages of concurrence, the general context was certainly germane to take his demonstration further.[5]

The second half of the seventeenth century indeed represents the final step of a long maturation towards a modern liberal definition of natural right, stemming in particular from theological discussions of the Middle Ages. This is an obvious eminently complex development, not to be entered in details here : from the relation to God each individual could gradually and subjectively claim,[6] to the broader question of the renewed articulation between collective and private interests.[7]  As regards the economy, available “doctrines” to run efficiently the French kingdom were also at crossroads. The orthodoxy, at the time, relied on the intervention of the State on all the main markets, from manufactures support to large corporative confirmations or reinforcements.[8] Against this political omnipotent control, liberal voices started to rise, such as Pierre Le Pesant de Boisguilbert, who was one of the first to conceive, beyond the ancient social divisions, a tax reform organized as to promote domestic consumption and to focus on free commercial exchanges (“laissez-faire”). Although he was himself still attached to the traditional foundations of the absolute monarchy and, to some extent, influenced by Jansenist conceptions of Nicole or Domat on the nature of “self-love of individuals,”[9] he strongly believed that France, despite still being the “richest Kingdom of the World”, had indeed its economy in decline from the beginning of the 1660s.[10] The “mercantilist State” was clearly responsible for this aggravation and since “nature”, on the contrary, always aimed towards « freedom and perfection », ancient social organizations confirmed by the king were thus potentially under suspicion.[11] A question the “Testament politique de Messire Jean-Baptiste Colbert” (by Courtilz de Sandras) had in fact tried to discuss, in particular on the necessity to limit some of the most inequitable corporative regulations, as the ones that restrained talented workers to establish themselves freely as masters in their own art.[12] Thus, although individuals – or their potential rights – were only gradually debated as an end until the eighteenth century, it certainly raised the question of a renewed coexistence between the collective structures of the “ancienne France” and more “individualistic” perceptions or claims, at least if the latter could be compliant with the “public good.” 

Some primary sources of this modern period within guild internal usages  provide some evidence of this profound evolution. In England, it has, for example, very well been explained that the wording used by the Stationers in their own registry for publications intended to be protected, in relation to a “traditional conception of society as a community bound by ties of fidelity and service”, evolved imperceptibly towards much less usual corporative customs: a bookseller or a printer was indeed firstly, soon following Elizabeth’s Stationers’ Charter in 1559, “lycensed to prynte" a book, which meant also, along the implementation of censorship policies, that this was done with the benediction of all the other members of the Company; until these registrations could show, one century later, that these booksellers from London retained a more personal sense of possession, not to say property, on a book or a copy, since it was henceforth supposed to be entered for himself (“Entred for his copie”), that is to say more independently of the collective power enhanced by the initial charter’s practices.[13] In France, as seen for the first book privileges of the sixteenth century, exclusive rights were more directly linked to the royal administration and its political choices and, until the royal legislation of 1777, they would still be officially obtained within the same formal requests addressed to the king, leaving him theoretically the full discretion to grant them, or not.[14] The Communauté des libraires et imprimeurs de Paris, in particular, was thus not in the position to develop, as for the stationers, such an internal system of protection, making it difficult to decipher subtle changes through such spontaneous corporative practises.

 

Still, only forty years after Vitré’s intervention, the memorandum of 1690 is certainly able to illustrate, for the French book trade, the same perspective as the one inferred from the London stationers’ registry and this very subtle mélange of an old traditional medieval rhetoric and new individualistic approaches, within a market evolving towards capitalistic self-interest and private property grounds paradigms. In particular, while booksellers still emphasised on their own corporative labour and expenses, such a specific activity was at that moment explicitly associated with the author’s own contribution into a new publishing synergy, and as an unprecedented potential source of exclusivity.

 

4. Publishing and “collaborative” labours as the source of exclusivity

It should be firstly reminded that during the seventeenth century the “champ littéraire” is also supposed to have changed rapidly.[15] Although, unfortunately, primary sources on publishing contractual relationship are rarely available in details, one knows that, among writers obviously still economically dependent and a public itself unsettled within rigid social structures, some authors, sufficiently renowned, were at the time significantly remunerated, usually from a lump sum of money negotiated with booksellers for their original manuscripts.[16] Thus, if authors were still supposed to be at the time selfless and “disinterested” in “abandoning” to the public the “property” of their work,[17] a literary “career” seemed henceforth more reachable without any shame, to the point that numerous booksellers at the time already “regretted the good old time when authors paid to see there work printed.” [18] In fact, Alain Viala, who mentions Aubry’s report [19] to emphasise these complaints, is probably referring to the following extract, which, indeed, illustrates well the state of mind of the members of the book trade towards this evolution:

“In the past authors gave money to booksellers, in order to contribute to the cost of printing their works; and this money came to them from pensions and gifts given to them by the king and his ministers who engaged them through these favours to work for the public. And even if not all authors were able to give money, at least they didn’t demand any. Nowadays the practice in the book trade is quite the opposite, and, no matter whether it originated in the want or avarice of some authors, or whether it was introduced by someone else, people have become so accustomed to it, that the art of writing has, so to speak, become a trade [métier] for earning one’s living, albeit one which is in danger of being depreciated because of the large number of people who take it up.”[20]

 

Ideally, it seemed that the sole “right” that authors could legitimately claim did not have to be linked to patrimonial or economical considerations, but to be restrained to what could be “defective” in the publishing process.[21] The provincial booksellers, despite their confrontation with their Parisian counterparts, will lastingly share the same nostalgia of a world filled with devoted authors who work for the sole glory of being published and known to the public.[22] But inversely, authors themselves could also expect from the members of the trade to be more than “an agent seeking a profit, but also an ally.” [23] In any way, this question of “visibility” was essential, since in “literature,” according to Furetière, the author, to be considered as such, had to bring to “light” a book, which meant that he had ultimately to print it, with the bookseller as the evident key intermediary of this process.[24] As seen with the Parisian bookseller Galliot du Pré’s privilege and his consecutive exclusive protection for two years (for the Grant Coustumier de France), only the true risks deriving from the publishing venture had been traditionally taken in account, to allow, by reimbursing printing expenses and costs involved, the best diffusion of “useful” ancient or new books to the profit of the king’s subjects. In such a corporative environment, the very rare authors who wished themselves to obtain a royal protection, before having to appoint members of the book trade to enjoy it fully, had to rely in their requests on these common grounds more than on a particular authorship’s labour: as if exclusivity and patrimonial considerations were by nature – and not only from a corporative perspective – a field reserved to printers and publishers.[25]

 

At the end of the seventeenth century, although it was then well established that original manuscripts were to be taken in account within these publishing trade expenses, Aubry seemed therefore to go significantly further, in putting forward the “labour of the author” per se to support on more theoretical grounds the longest possible duration of exclusivity. The exact formulation was indeed very original in view of what appeared to be presented as the collaborative nature of the work leading to publication, since it was question of “all the books which have been produced for the first time in this Kingdom by the individual industry of a bookseller [l’industrie particulière d’un libraire] or by the labour of an author [le travail d’un auteur].”[26] Later in the Mémoire, a similar formulation was applied, for “books of recent composition, produced by the labour of a modern author or by the industry of a bookseller.”[27] The “industry” of a bookseller and the “labour” of an author were thus so consubstantial that they actually implied a  “private right [droit particulier],” that is a right of “property” – the word was released – that no one else, “apart from that author or bookseller,” could possibly claim.[28]

 

Yet, although these labours seemed along Aubry’s report to be ambiguously promoted as comparable in their value towards a single end (publication), the composition of the book was ultimately underlined as a particular achievement in relation to contractual relationship, as the author himself ceded “his work and his right” ("son ouvrage et son droit") to the bookseller.[29] The nature of this “ouvrage” transferred could also mean that he had certainly, at least, the sole right to bring to the light his “book” or his tangible original manuscript, as Marion pleaded in the sixteenth century.[30] But, prudently enough, if voluntarily, the right ceded by the author (in exchange of money or even not) was not detailed nor defined in the memorandum, and its object, as it would be anyway the case during the next century, remained enigmatic. In fact, Louis d’Héricourt himself, in 1725, established in France as the initiator of the “literary property” debate, did not confront the new claimed “right” to its intangible nature, preferring to rely laconically on the original manuscript as the most obvious corporeal medium – and obviously a symbolic one – of the work transferred.[31] It remains that with the precious and inevitable bookseller’s industry that had to be carefully supported, the whole spirit of the memorandum’s demonstration, eventually as another compelling sign of the rise of “possessive individualism,”[32] aimed to launch the author as the originator of a specific labour able to uphold exclusivity: that is an author as the natural owner, or, as the (prolific) poet George Wither had put it in England a few decades before, the “true owner” of his work, or entitled to “an interest in every mans labour of this kind,” while remaining legally, at least in France, an outsider dependent on the corporative organization and on contractual terms members of the trade were certainly in the most comfortable position to determine.[33]

 

In any case, this strategy had already one particular target, the book trade privilege, that booksellers were seeking to make fully compatible, above corporative usages, to a right of property deriving from these individualistic grounds.

 

5. Towards a redefinition of book trade privileges? 

The definition of a privilege was immediately recalled by the report as “an individual favour, truly founded on some merit or other, but which nevertheless still is an exception from the public right.”[34] This was a typical definition, also pointed out at the time in the Furetière’s dictionary, as “a special private prerogative which a person benefits from with the exclusion of several others, and which he receives through the favour of his Sovereign.” [35] A lex privata, a favour granted by the king when he “believes it justified”: a definition that would be systematically brought to mind by the book trade administration during the eighteenth century judicial confrontation between the Parisian and the provincial booksellers, and also by the latter themselves until 1777.[36] It also simply meant that a royal privilege always bore the same nature, discretionary range and duration, whatever may be its object, literary works being included.

 

Still, this ancestral definition was not anymore entirely approved by Aubry and the Parisian booksellers. It was even “quite the opposite,” with an unprecedented distinction carefully elaborated in relation to the two sorts (or types) ("sortes") of books being brought on the market, and what they implied in terms of public utility and labour(s): the “common sorts” ("sortes communes") and the “particular sorts” ("sortes particulieres"). The first type encompassed these books “written by the Ancients who did not reserve to themselves any right to them,” but also, incidentally, foreigners who did not obtain rights in France, or even authors who have “relinquished to the public the private right which they might otherwise have to their own works.”[37] Common sorts of books corresponded thus essentially to ancient works, that is to say, as summarized by the king’s lawyer Séguier in 1779, “religious works, by the Church Fathers, and then works by the most esteemed authors of Ancient Greece and Rome”; in short everything that occupied the pioneers of the book trade during the first half of the sixteenth century.[38] The particular sorts included all the books unpublished before and produced by the author’s labour and the bookseller’s industry. Since, as we have seen, no one, apart from “that author or bookseller, could possibly claim any sort of property in them,” it had inevitably, for the king himself, some consequences on the nature of book trade privileges:

 

“The privileges for books comprised under the category of ‘common sort’ books are favours which really can be regarded as exceptions from the common right – exceptions which, all the same, still have to be extended for the benefit of individuals who have exposed themselves to losses of some kind in serving the public, especially if their privileges do not directly and significantly encroach on another’s right. But privileges for particular sorts of books belong to those acts of beneficence which the king can avail himself of, in order to honour and reward the merit of those subjects of his who obtain them; And these benefactions which depend solely on him [the king], without affecting in any way the right of anyone else, are indeed so much the more favourable that they even ought to be perpetual.”[39]

 

If they could be perpetual in theory, they were not in practice, as, explained Aubry, and a more traditional definition of the royal protection seemed to be promoted again, the king had to retain, for the sake of public utility, the discretionary scope with which he would continue to stimulate “his subjects’ industry”. Besides, Parisian booksellers confessed opportunely that a perpetual exclusivity on a book, since its probable fate was not to be endlessly commercially profitable, was probably not crucial.[40] Nonetheless, regarding new books, privileges granted for these “sortes particulières” thus appeared here to evolve, although with these numerous precautions, from an ancient favour, sole legitimate source of exclusivity on a book within the kingdom, to a new kind of royal recognition aiming to secure pre-existing property rights deriving from individual and autonomous labour.

 

Eighteenth century lawyers would soon exploit further this reinterpretation with obvious risks, since, in the French absolute monarchy (and until the Révolution), the intermediate bodies were rings of the same chain, the first of them being in the king’s hand, and that the discretion with which he granted his favours was a fundamental expression of that sovereignty.[41] In other words, this renewed analysis of the book trade privileges challenged directly the royal prerogatives, a confrontation still at the heart of the discussions surrounding the 1777 regulations.[42] Despite complaints against modern writers’ mercantile expectations, some Parisian booksellers also obviously understood the advantages of using authorship as some kind of “weapon” to serve their own (commercial) interests, since, as Patterson put it in relation to the making, almost at the same moment, of the Statute of Anne, “[t]he most logical and natural basis for the changes was the author.”[43] Nevertheless, “modern individuation” was not, recalls usefully Robert Legros, the result of a “conscious project”, as “it began before thinking itself.”[44] In this broader perspective, the author’s (personal) labour was anyway ready to be soon fully brought into debate.

 

6. References

Books and articles

Histoire de l'édition française, Le livre triomphant, 1660-1830, 4 volumes, edited by R Chartier and H.J. Martin. Paris: PROMODIS, 1983-1986.

Legros, R., B. Foccroule, and T. Todorov. La naissance de l’individu dans l’art. Grasset: Nouveau Collège de Philosophie, 2005.

Lindenbaum, P. "Authors and Publishers in the Late Seventeenth Century: New Evidence on their Relations." The Library 6, no. 17 (1995): 250-69.

Loewenstein, J. The Author's Due: Printing and the Prehistory of Copyright. London: University of Chicago Press, 2002.

Patterson, L.R. Copyright in Historical Perspective. Nashville: Vanderbilt University, 1968.

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

Rose, M. Authors and Owners: The Invention of Copyright. Cambridge, MA: Harvard University Press, 1993.

Viala, A. La naissance de l'écrivain: Sociologie de la littérature à l'âge classique. Paris: Les Editions de Minuit, 1985.