Primary Sources on Copyright (1450-1900)
Identifier: f_1762
Commentary on the Déclaration royale on privileges granted to inventors
Frédéric Rideau
Faculty of Law, University of Poitiers, France
Please cite as:
Rideau, Frédéric. "Commentary on the Royal Declaration on privileges for inventors (1762)." Primary Sources on Copyright (1450-1900). Edited by L. Bently and M. Kretschmer, www.copyrighthistory.org.
1. Full title
2. Abstract
3. First privileges for inventions
4. The invention's criteria of protection: Novelty and utility
5. The purview of the 1762 Déclaration
6. References
1. Full title
Declaration of the King, concerning trade privileges. 24 December 1762
2. Abstract
A primary source on the brevets d'invention (patents for inventions), to use the term endorsed by the decree of May 25, 1791, might not seem to quite warrant inclusion among fifty primary sources on copyright. However, as in Great Britain, the protection of inventions, and even of their inventors, is part of a common history, regarding both the means of protection - privileges - as such and the justifications of these. It is very revealing to contrast the alternative definitions of privileges, especially in the positive legislation of the time - i.e. that of the 1762 Déclaration, before the book trade regulations of August 30, 1777. In addition, the booksellers themselves grounded some of their developments on such a comparison (see in particular Gaultier's memorandum, f_1776). The 1762 act was the first general attempt to regulate the trade in inventions and to protect on more solid grounds inventors and their eventual assignees. Previously, in the sixteenth and seventeenth centuries, the granting of privileges to inventors was more discretionary, sometimes agreed outside of any professional guild regulations. Normally, the award and duration of the royal favour, as in book trade privileges, was related to the invention's public utility, but also to the fact that it was actually contributing something new. After a presentation of these privileges, the commentary will discuss and compare the criteria involved (which were not always respected consistently), and juxtapose the 1762 purview with the 1777 book trade decree, thereby allowing us to compare the status of inventors with that of authors at the end of the ancien régime.
3. First privileges for inventions
Before 1762, the granting of royal favour faced numerous obstacles. First of all, the inventor's interests might well collide with the various guild organisations. It is worth stressing that although artisanal forms of production thrived better than industrial ones (where these existed) during the Middle Ages, the trades nevertheless constituted themselves quickly into corporate bodies within each city. There were corporations of butchers, of candlestick-makers, of cutlers, etc. One can regard these guilds as firmly established by the start of the thirteenth century. This implies, of course, their internal hierarchy, which made it possible to determine the place of each member within a framework of personal relations and, more generally, the evolution of members' careers. This organisation, at the same time, also forced the artisans to work "au grand jour" ("plain for all to see"), i.e. in accordance with the "rigorously regulated" rules and modes of manufacturing.[1] Indeed, as the historians Lavisse and Rambaud have pointed out, these regulations could even provide for such aspects as "the details of manufacture, the quantity of gold alloy which the gold-beater had to add to his silver foils, the percentage of gold (or silver) in the articles made by goldsmiths, the way in which bead makers (patenôtriers) were supposed to thread the beads of a rosary, the length and the width of fabrics, and the quality of weaving".[2] With regard to the beads of a rosary, for example, Etienne Boileau, who was Grand-Provost of the city of Paris under Louis IX, specified in his famous Livre des Métiers (Book of Trades) that "nobody in the above-mentioned trades is allowed to thread rosaries if the beads are not round and well-shaped", or, in the case of the cutlers, these were forbidden from "putting silver on handle made of bone".[3] Renouard points out the multitude of payments and other pieces of royal legislations concerning each trade. Yet another example is how for the manufacture and dyeing of cloths, as well as all related processes, about fifteen different royal regulations were imposed between 1669 and 1723 regarding the length, width and quality of the cloths. Concern about detail went very far indeed, and the King's Council's decree of December 3, 1697, which renewed former provisions (1508, 1560 and 1601), specifically prohibited "the use and even the possession of iron, bronze and fire presses, because this manner of pressing cloths conceals the inequalities and defects of their texture."[4]
Under such conditions, as Jacques Isoré points out, what could the "juridical status" of an inventor be if he happened to be a guild member and therefore bound to its usages and rules, or if, on the contrary, he was independent and thus likely to pose a threat to the relevant guild with his discovery or creation?[5] Where, in short, was there room for innovation, especially for an ‘independent' inventor facing the structural corporatist organisation of society under the ancien régime?
As in the case of the book trade, privileges were to prove the most effective solution for protecting a discovery or a trade secret. To cite yet another expression of Renouard, "the inventors found a refuge against regulations in the privileges, which also protected large commercial and industrial companies."[6] Far from being a French specificity, it was even a common expedient used throughout all Europe. One of the oldest privileges of invention was that granted for a term of 15 years to Bonafusus, an Aquitainian master in the dyeing of textiles, by Henry III of England in 1236. The problem of how to deal with new discoveries also arose within the mining industry, and that of how to protect an art which was specific to a person arose in the context of the printing industry.[7] Within the more general development of Europe's economy - where cities always played a driving role, reinforcing commercial communication networks - Italy stood out by the central role which she occupied in this process, too. As in Florence, for example, where privileges were granted for the building of the dome of the cathedral, or conferred to Brunelleschi, who improved the construction of the boats used for carrying heavy loads on the Arno.[8] Venice, by virtue of its political and economic power, led the way with its legislation of 1474 on the protection of inventions (see Joanna Kostylo's commentary on i_1474).
In France, one of the oldest privileges in this respect has been traced back to 1551: it was granted to an Italian gentleman from Boulogne-la-Grasse for ten years, regarding the manufacture of glassware in "the Venetian fashion". It seems that there was confusion at the time between the protection of a really new manufacturing process and the importation of a foreign one (as in this case).[9] The absolute monarchy would later support the enrichment of the State and the modernisation of its industries by a mercantilist policy. For Colbert, the encouragement of industry could be achieved by means as diverse as the parallel granting of particular and general privileges and, as already mentioned, the enforcement of guild regulations. As Louis XIV's chief minister probably would have indeed stressed, "there is nothing more necessary in a State than Commerce".[10] The satisfactory working of the jurandes [the oath sworn by the members of a guild], the emergence of ingenious manufactures on French soil - [11] all this, according to Colbert, strengthened the country and helped to finance any wars which it had to wage. It was, furthermore, under the aegis of Colbert that the Royal Academy of Sciences was founded, in 1666, to examine any "new machines" which were submitted to its knowledge. Initially, it was occupied mostly with the inventions of its own members, but could also be called upon for expert advice by the Parlement, which was in charge of recording and checking any letters patent granted to the king's subjects.[12] But it was not until the regulations of January 26, 1699 (in particular, the terms of article 31 of these) that the Academy's role in controlling this field was institutionalized by Louis XIV, who continued bestowing "tokens of his affection" on the Academy: it was henceforth to carry out a preliminary examination of each invention. Thus, "if the King should order it", the Academy had to pronounce itself on the "novelty" (nouveauté) and the utility (utilité) of the new invention.[13]
Novelty and utility were, therefore, the necessary criteria for obtaining such privileges in the sphere of commerce.
4. The invention's criteria of protection: Novelty and utility
We will not discuss here in detail the nature and definition of the royal privilege, which was understood in similar terms across all Europe (see, for example, the respective commentaries on: f_1515, uk_1518, d_1501, and i_1486): i.e. as an exclusivity (or limited monopoly) granted by the sovereign, against the common right, for the purpose of rewarding him for his useful work and investments. Let us also recall briefly that in theory - and the king's administration still confirmed this in the second half of the eighteenth century - the nature of these privileges did not change depending on the object to which they applied.[14] Thus, a priori, as regards commercial privileges and, to use the title of the 1762 Déclaration, the protection of inventions, there was no distinction between these and the privileges of the book trade. This is in fact something that the booksellers of Lyon and Rouen did not fail to emphasise in 1776 when presenting their arguments against the Parisian guild (see our commentary on f_1776). We will return to this point.
The bestowing of such royal privileges in practice seems to have been based on the above criteria and in accordance with the king's usual discretion in their evaluation. On September 7, 1661, for example, the Parlement was instructed to register a thirty years' privilege for a certain François Maillet, "provided, though, that the said secret and machine are indeed of his own invention and that no similar machines have been set up before, on pain of these letters becoming null and void." Only such novelty could in theory testify to the actual work carried out by the inventor, as in the case of an old book issued with a privilege for some annotations recently added to it, or a typographic layout arranged with particular care by a publisher. However, novelty in itself was sometimes not sufficient. As for the criterion of utility, the application had, it seems, to be industrial, or at any rate to contribute directly to the progress or embellishment of the city of Paris. Thus, for example, Jacques Isoré cites a privilege (registered by the Parlement on June 25, 1665) granted to Pierre de la Fournière for the "invention of several machines - all of which he has devised and developed himself - which make it possible for one man alone to lift, load [onto a ship] and haul the same weights that an ordinary machine could only hoist with the assistance of at least ten or twelve men."[15]
A priori, therefore, no overextended durations of protection should have been possible, as was the case progressively with privileges in the Parisian book trade.[16] The duration of privileges for inventions was thus sometimes perceived as too extensive by the Parlement, as in the case of the privilege that Jean Brasdefer, esquire and lord of Chasteaufort, had obtained from the king on June 30, 1611, protecting him, for the space of twenty years, against counterfeiters and allowing him to set up some mills "of his own invention". The grounds for royal protection started as follows: "Our dear and beloved Jean de Bras-de-Fer, lord of Château-Fort, has had brought to our knowledge that for more than fifteen to twenty years he has, together with Adam Faucheron, carpenter, and others, employed all his time and possessions in the quest for several secrets and inventions not yet found nor discovered, and no less necessary to the public than rare, for which task he claims to have been commissioned by several foreign princes and lords... Among these inventions he has discovered, etc...."[17] Despite this presumed intensive work on the part of the inventor, the privilege was reduced to ten years, probably because the parliamentary magistrates felt that the invention was of merely limited interest.[18]
The application of these criteria, distinguishing between labour and utility, was thus appreciated by the sovereign, as in the case of book trade privileges. If necessary, the king would enjoin the Academy to judge the viability of the new invention.
Renouard, however, having studied several privileges from the seventeenth century, remained rather sceptical as to their judicious implementation. Indeed, when the Academy had to decide whether the criterion of novelty was fulfilled, it sometimes did not set a very high threshold for an invention to qualify for royal protection, as evinced, for example, by the "invention" of a "circular jack," presented in 1701 and granted protection, even though it was not based on any substantially new technology. It was apparently still difficult to distinguish, from among these numerous privileges, between those which derived from an unjustified favour and those which were founded on solid and just grounds: "the talent, the invention, the services rendered [by the latter] were simply arguments invoked in supporting the application, but not always the most compelling ones."[19] The privilege thus could remain dependent on the discretionary king's good will and was eventually also subjugated to a heavy corporatism which often forced true inventors into voluntary exile abroad. François Le Blanc, in his historical treatise on coins published in the end of the seventeenth century, regretted such an injustice for inventors undoubtedly useful to the kingdom:
"One should not be surprised that new inventions, as useful as they may be, encounter opposition when one tries to get people to accept them. How many obstacles were raised against the beam balance that is now used to mark coins, when it was first introduced! Not only the labourers who minted coins with hammers, but even the Cour des Monnaies did everything they could to try to have it rejected. Everything that intrigue and malice can come up with was brought into play to try to frustrate the intentions of Nicolas Briot, engraver-general at the Paris Mint, the most skilful man in his art in Europe at the time. He carried out an endless number of experiments in the presence of the Messrs de Château-Nef, de Boisisse and de Marillac [councillors of State]; and even though Briot had shown that by means of a press, beam balance, cutter, and rolling mill, it was possible to manufacture coins at a higher level of quality and requiring less time and expenses, than by the hammer method, which had been used ever since the earliest days of the French monarchy, the intrigues of his enemies prevailed against all this, and his proposal was rejected. The grief which he felt at seeing such reluctance to promote and protect something that we all admire today forced him to leave France for England, where his inventions were duly put to good use in making the most beautiful coins in the world."[20]
The Chevalier de Boufflers, reporting, in the name of the Committee for Agriculture and Commerce, on the revolutionary legislation concerning inventions, would also use this example (see the commentary on f_1790a). In short, according to Renouard, "neither common right, nor any strict rules applied to this field": what there was instead was a certain "arbitrariness."[21]
As for the book trade, criteria that were in theory rational were used to justify the royal favour. Their actual application, however, apart from the question of censorship, was linked to tensions which went far beyond the inventor's interest. In addition, it also seems that during the eighteenth century a significant number of privileges "were part of complex transactions and were rarely claimed by craftsmen or artisans - except in the case of specific luxury trades - but rather by racketeers (affairistes), who were frequently associated with family firms."[22]
Indeed, the preamble of the 1762 Déclaration mentioned numerous abuses - in particular, royal favours granted to persons who lacked the necessary ability to benefit properly from them, and the proliferation, as in the book trade, of unlimited exclusive protection. It was therefore necessary to recall and re-establish the true nature of this type of privileges.
5. The purview of the 1762 Déclaration
In the purview of the 1762 act, the traditional definition of the privilege was to be preserved, whilst at the same time its conferral was to be rationalized. As is known, the physiocratic movement, and the various liberal doctrines concerned with the demands of laissez-faire and technical progress, threatened, through the subsequent reforms of Turgot, the guild organization of the ancien régime itself. Moreover, the Bureau du Commerce undoubtedly played an important part in the concretization of a "liberal credo" in this sphere, under the combined impulse of some royal intendants who supported the application of these doctrines, such as Daniel-Charles Trudaine,[23] the intendant of Auvergne, and later administrator of bridges and roads.
The royal Déclaration of 1762 was accepted and perceived as a foundational document, in the sense that it organized a disparate and vague field, i.e. one that was based on the flexibility of privileges, but without the framework of a more general regulation, as in the book trade.[24] Renouard describes it as the introduction, for the first time, of "some established and general rules in this sphere of legislation."[25]
The title itself is already suggestive: rather than being a declaration of the rights of the inventor, it is concerned mainly with trade privileges in a general way. The industry and labour of the inventor are simply "rewarded," novelty allowing probably, as mentioned earlier, to presume the reality of what he has achieved. Moreover - and in this we recognise again all the criteria that must traditionally be fulfilled in the granting of privileges - the royal favour must generally conform to certain notions of utility: that it will sustain healthy competition and encourage the inventor to communicate under the best possible conditions his work. All things considered, this was a completely traditional approach to the economy and the exercise of the sovereign prerogative, which, even in 1762, was still very much in the spirit of the first privileges granted in the book trade. Thus, the duration of the privilege was limited, so as not to establish "a patrimonial inheritance" instead of what should be a "personal reward". From this point of view, although it is certainly regarded as necessary to reward the inventor's labour, the transfer of a privilege - in particular, to the inventor's family - because of death is possible only if the family members are able to put the invention to use so that it benefits the public.[26] Thus, there is no lawful property right here which ensures the transfer by inheritance of an invention automatically protected by the royal grant. One should add that abuses do seem to have been frequent, even to the point of invoking royal protection (as we have seen above) in such cases where the novelty or value of the invention had not been proven completely, but not implying that often, it seems, contrary to what the preamble states, numerous unlimited privileges.[27]
As a result of the greater influence it acquired in drawing up the 1762 Déclaration, the Bureau du Commerce was to control and examine, together with the Academy of Sciences, the value of the invention submitted. In practice, it seems that Academy based its judgements mainly on the criterion of novelty, whereas the Bureau du Commerce was more concerned with the commercial viability of the invention.[28]
According to Isoré, the Déclaration of December 24, 1762 established a "transition between the purely customary legal status and the statutory regime established thereafter," and thus provided the foundations for a juridical status of the inventor, soon to be "reinforced" by the revolutionary laws.[29] This continuity is probably true, although being however more complicated to identify than it seems. The revolutionary laws would indeed recognize explicitly an inventor's property, or rather that of the ‘Author' of an invention, such a right remaining still secured clearly in the interests of the Nation and its industry.[30] In addition, the statutory definition of invention under a property right would remain ensure, to be even repealed for a time in 1844.[31] It nevertheless remains a fact that no property was actually enshrined in the preamble of the 1762 Déclaration. As far as inventions were concerned, the royal privilege was not granted as a means to secure a natural right to the inventor, and it remained, therefore, merely the only source of his limited exclusivity on the trade. In this respect a comparison with the 1777 decrees, and, in particular, the purview concerning the duration of privileges, will prove to be very instructive. For until these decrees a book trade privilege had not differed in any way from other trade privileges. Its preamble was now indeed to enshrine a specific kind of privilege, a favour "grounded on justice", which, because of its automatic granting to the benefit of the author, secured from now on a pre-existing "rightful property" (see the commentary on f_1777a). Thus, as shown by a comparative analysis of these two important sources, the specificity of the author (as opposed to the inventor) imposed itself in the royal legislation of the end of the ancien régime, turning down legally a confusion which was often exploited at the time.[32]
6. References
Beltran, A., S. Chauveau, and G. Galvez-Behar. Des Brevets et des marques, une histoire de la propriété industrielle. Fayard, 2001.
Braunstein, P. "A l'origine des privilèges d'invention aux XIVe et XVe siècles." In Les brevets, leur utilisation en histoire des techniques et de l'économie. IHMC-CNRS, 1984.
Isoré, J. "De l'existence des brevets d'invention en droit français avant 1791." Revue historique de droit français et étranger 4, no. 16, 1937.
Renouard, A.C. Traité des brevets d'invention, 3rd edition. Paris: Guillaume & Co., 1865.
[1] J. Isoré, "De l'existence des brevets d'invention en droit français avant 1791," Revue historique de droit français et étranger, 4-16 (1937): 99.
[2] Quoted by Isoré, ibid. ["...jusqu'aux détails de la fabrication, la quantité d'alliage d'or que le batteur devait mettre dans ses feuilles d'argent, le titre du métal des orfèvres, la façon dans les patenôtriers devaient enfiler les grains d'un chapelet, la longueur et la largeur des étoffes, et la qualité de la trame."]
[3] Ibid. ["nuls du métiers dessus dit ne puet ne doit nulle paternostres enfiler se elles ne sunt rondes et bien formées" and "mettre argent seur manche d'os."]
[4] A.C. Renouard. Traité des brevets d'invention, 3rd ed. (Paris: Guillaume & Co., 1865), 60 ["l'usage et même la possession des presses à fer, airain et à feu, parce que cette manière de presser les draps en cache les inégalités et les défauts."]
[7] P. Braunstein, "A l'origine des privilèges d'invention aux XIVe et XVe siècles," in Les brevets, leur utilisation en histoire des techniques et de l'économie (IHMC-CNRS: 1984), 53-54. Concerning the privilege granted by Edward III, we do not exactly know if it was granted because of the novelty of the dyeing process, or if it was related to the construction of the furnace used.
[8] A. Beltran, S. Chauveau, and G. Galvez-Behar, Des Brevets et des marques, une histoire de la propriété industrielle (Paris: Fayard, 2001), 21.
[9] Isoré, 103. Confusion which was to be legally enshrined eventually - namely, by article 3 of the 1791 act: "Whosoever first brings an invention into France will enjoy the same advantages that he would be entitled to if he were himself actually the inventor." ["Quiconque apportera le premier, en France, une découverte jouira des mêmes avantages que s'il en était inventeur."]
[10] Colbert (Courtilz de Sandras), Testament politique de Messire Jean-Baptiste Colbert (La Haye: Henry Van Buderen, 1694), 401. ["il n'y a rien de plus necessaire dans un Etat que le commerce."]
[11] Isoré, 101, also quotes the case of James Fournier, who received French royal privileges authorizing him to establish a manufacture of silk stockings based on the English model.
[12] Cf. Beltran, Chauveau, and Galvez-Behar, 25.
[13] For more details on these regulations, see Recueil général des anciennes lois françaises depuis l'an 420 jusqu'à la Révolution de 1789, vol. 20, ed. Isambert, Decrusy, and Taillandier (Paris, 1829), 326-32: "L'Académie examinera, si le roi l'ordonne, toutes les machines pour lesquelles on sollicitera des privilèges auprès de S. M.; elle certifiera si elles sont nouvelles et utiles, et les inventeurs de celles qui seront approuvées seront tenus de lui en laisser un modèle" (quoted by Isoré, 125).
[14] The following remark in this respect by M. d'Hémery, inspector of the book trade administration, is clearly directed against the Parisian booksellers: "Pure folie que tout ce Verbiage; et où Messieurs les Libraires ont-ils pû imaginer tout ce qu'ils disent a ce sujet" (Mss. Fr. 22073, n°85, fol. 179). ["What sheer folly all this verbosity is! How could the booksellers ever imagine all that they are saying on this subject ?"]
[15] For these two privileges, see Isoré,108-09. ["pourveu toutefois que ledict secret et machine soient de son invention et qu'il n'y ai eu cy devant d'autres establissemens de pareilles machines à peine de nullités desdictes lettres"] and ["inventions des machines qu'il aurait trouvées par son industrie et invention par la disposition desquelles un seul homme peut lever, embarquer et tirer les mêmes fardeaux qu'on ne peut lever par les machines ordinaires qu'avec l'ayde de dix ou douze hommes."]
[16] Colbert (Courtilz de Sandras), 407. The strategy was indeed to control, with such generous grants, the Parisian trade, and to limit simultaneously the provincial book trade access to privileges, in other words to reduce in the whole realm the wealth of a profession "more dangerous than advantageous to the State" ["plus dangereuse qu'avantageuse à l'Etat"] considering its capacity to promote the circulation of seditious and defamatory writings.
[19] Renouard, 65. ["le talent, l'invention, les services rendus n'étaient que des arguments pour la sollicitation, et pas toujours les plus puissants."]
[20] François Le Blanc, Traité historique des Monnoyes de France, Avec leurs figures, depuis le commencement de la Monarchie jusqu'à present (Paris: Chez Charles Robustel, 1690), 385 (see Renouard, 68-69). ["On ne doit pas être surpris que les inventions nouvelles, quelques utiles qu'elles soient, trouvent de l'opposition lorsqu'on les veut faire recevoir dans le monde. Combien d'obstacle ne fit-on point contre la machine du balancier, dont on se sert aujourd'huy pour marquer les Monnoyes, lorsqu'on la voulut établir ! Non seulement les Ouvriers qui fabriquoient la Monnoye au marteau ; mais même la Cour des Monnoyes, n'oublierent rien pour la faire rejetter. Tout ce que la cabale & la malice peuvent inventer, fut mis en usage pour faire échoüer les desseins de Nicolas Briot, Tailleurs Général des Monnoyes, le plus habile homme en son Art qui fût alors en Europe. Il fit une infinité d'épreuves en presence de Messieurs de Chasteauneuf, de Boisisse & de Marillac. Et quoyque Briot eut fait voir, que par le moyen de la presse, du balancier, du coupoir & de laminoir, on pouvoit fabriquer les Monnoyes dans une plus grande perfection, avec moins de longueur & de dépense, que par la voye du marteau, dont on se servoit depuis le commencement de la Monarchie, la cabale de ses ennemis prévalut contre tout cela, & sa proprosition fut rejettée. Le chagrin qu'il eut de trouver si peu de protection en France, pour une chose que nous admirons aujourd'huy, l'obligea de passer en Angleterre, où l'on ne manqua pas de se servir utilement de ses Machines, & de faire par son moyen les plus belles Monnoyes du monde."]
[21] Le Blanc, Traité historique des Monnoyes de France, 68 (and 63 for the term "arbitrary": "Les inventeurs trouvaient un refuge contre les règlements dans les privilèges, qui protégeaient aussi de grande entreprises commerciales et industrielles. Les privilèges, véritablement alors lois privées, ouvraient au progrès une issue contre le despotisme de la loi générale. Subordonnés à l'arbitraire et au bon plaisir, ils étaient souvent distribués capricieusement....")
[22] L. Hilaire-Perez, L'invention technique au siècle des Lumières (Paris: Albin Michel, 2000), 39. The extract is quoted by Beltran, Chauveau, and Galvez-Behar, 25. ["...participent, selon Liliane Hilaire-Perez, de transactions complexes et sont rarement réclamés par des hommes de l'art, sauf métier du luxe, mais plutôt par des affairistes, souvent partenaire de compagnies à base familiale."]
[23] Beltran, Chauveau, and Galvez-Behar, 26, point out that he was undoubtedly much influenced in this matter by the English example. The "liberal credo" of these years (1750-1770) clearly provoked very sharp criticisms against the prolongation of privileges, and these critics referred to the article "privilège exclusif" in the Encyclopédie of Diderot and d'Alembert. Yet we also know how strongly the author of the Letter on the Book Trade (f_1763) was to defend perpetual privileges in this sphere of commerce.
[24] Even though the latter was not necessarily more efficient, despite the numerous acts of regulation throughout the seventeenth century.
[25] Renouard, 71. ["quelques règles fixes et générales dans cette partie de la législation."]
[26] Article 5. See also article 6 on the obligation and the necessity of having the invention exploited.
[27] A more general, exhaustive study of this kind of privileges and their precise duration has still to be written, but the number of unlimited durations was certainly exaggerated by the king in his preamble, as pointed out by Beltran, Chauveau, and Galvez-Behar, 26.
[28] Beltran, Chauveau, and Galvez-Behar, 28.
[29] Isoré, 127. ["transition entre le régime juridique purement coutumier et le régime réglementaire qui s'établit par la suite."]
[30] See f_1790a (Archives Parlementaires, 30 décembre 1790, tome 21, 721) and the report from de Boufflers, for the Comittee on agriculture and commerce ["relatif aux encouragements et aux privilèges à accorder aux inventeurs de machines et de découvertes industrielles."]
[31] On this, see, in particular, the 1839 speech of Portalis in the Chamber of Deputies, concenring the bill on literary and artistic property (inventions were in fact still protected as a property): "Gentlemen, I think that in this respect considerable distinctions should be made between the invention of, say, a chemical or mechanical or manufacturing process, and the masterpieces of our great poets, elevated philosophical treatises, and profound historical and scholarly works; I am convinced that there is something which distinguishes notably the position of an author from that of persons who obtain patents of invention, and I don't think it is necessary for me to develop this view in more detail in front of an assembly such as this." ["Messieurs, je crois qu'à cet égard il y aurait de grandes distinctions à établir entre les inventions d'un procédé chimique, mécanique, ou de fabrication, et les chefs d'œuvre de nos grands poètes, les traités de haute philosophie, les grands ouvrages historiques et les recherches de profonde érudition; je crois qu'il y a quelque chose qui différencie singulièrement la position des auteurs et de celle des personnes qui prennent des brevets d'invention, et je ne crois pas avoir besoin de développer cette pensée devant une assemblée comme celle-ci"] (Le Moniteur Universel, 1839, 774).
[32] The opposition between literary work and invention was certainly just as fundamental in Great Britain (for Francis Hargrave's, as well as in William Enfield's works, for example).