Primary Sources on Copyright (1450-1900)

Identifier: f_1790


Commentary on Sieyès' report and projet de décret (1790)


Frédéric Rideau*

Faculty of Law, University of Poitiers, France


Please cite as:

Rideau, F. (2022) ‘Commentary on Sieyès' report and projet de décret (1790)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer,


1. Full Title

2. Abstract

3. Freedom of the press under pressure

4. Some significative steps into the definition of freedom of the press (1776-1791)

5. An incidental and provisional recognition of literary property 

6. The fate(s) of the Sieyès projet

7. References 



1. Full Title

Report of M. the Abbé Sieyès on the freedom of the press, and the bill against offences which can be committed by means of printing, and by the publication of writings and engravings


2. Abstract

 A draft law (a bill) on the regulation of the freedom of the press was presented to the National Assembly in January 1790 by the Abbé Sieyès, the famous statesman and deputy of the Third Estate. As we shall see, in a context of uncertainty and urgency, securing this natural freedom, while preventing its potential abuses, and ultimately promoting useful ideas – for the free individuals but also the free citizens –was a most precious, but difficult, goal to achieve. And this bill, probably linked with Condorcet’s Fragments sur la liberté de la presse in 1776 (f_1776a), certainly succeeded in setting enduring principles in relation to “the offences which can be committed by means of printing”. It is not surprising, in this perspective, that this piece of legislation, subordinated to the implementation of article 11 of the Declaration of the Rights of Man and of the Citizen (1789), and which was moreover officially intended to be in force for a period of just two years, included only incidental mention of literary property. Nevertheless, as we will conclude, this source is still and often interpreted as reflecting a truly “utilitarian” current within the French copyright or droit d’auteur.


3. Freedom of the press under pressure 

Even before the Revolution strictly started on a political and a juridical point of view from June 1789, and as soon as the États Généraux (Estates General)[1] had been summoned by the king, at the end of 1788, the circulation of printed political works, brochures and other pamphlets exploded, one of the most famous being the famous Qu’est-ce que le Tiers-État ? published anonymously by Emmanuel-Joseph Sieyès (l’abbé Sieyès) at the beginning of 1789.[2] Officially, the censorship regulations of the Ancien Régime were remaining fully in force, but it did not prevent some of the main political characters of the Revolution, also often journalists, to request, in the context of this historical royal consultation, the freeing of the Press. Thus, Jacques Pierre Brissot, one of the main leaders of what will be referred to by Lamartine as the “Girondins”, in his prospectus announcing the Patriote français and a few weeks before the opening of the Estates General, called for a “Constitution which must, everlastingly, secure freedom”.[3] Mirabeau, whose first journalistic attempt – a brochure called États généraux – had been forbidden by the king’s censorship, claimed in a new paper published in May that he saw himself as a “prosecutor” for the people, his own legitimacy being founded on and by the nation. As such, nothing could prevent him from informing the citizens without committing a “crime of national lese-majesty” (“crime de lèze-majesté nationale”).[4] The Revolution had already begun in his mind, and henceforth, the priority would be to assure the fullest freedom of expression, notably through the great majority of the Tiers État deputies. It remained to find the right legal formulation of these principles.


It is well known that Sieyès was one of the main redactors of the Declaration of the Rights of Man and of the Citizen of August 1789. He was indeed a member of the Committee on the Constitution and had been charged officially with the elaboration of its principles from the middle of July. This “exposition raisonnée” was presented to the Committee on 20 July, and immediately printed. Against a backdrop of Lockean influence, this preliminary work, through the concrete implementation of a viable mutual contract, meant finding the right balance between the naturally free individual and a new political organization based on equal citizens (“freedom of all”), with a particular concern regarding the “enemies of freedom”.[5] Because “centuries of misfortune” had so much affected the people, the Revolution, in securing for the first time their rights, had to take in account that freedom could not be used and reverted against these natural goals, even at the cost of a distinction between “active” and “passive” citizens.[6] It was nevertheless clear that an individual “entering society does not sacrifice a part of his freedom”, and that the Social State (“État social”) can only “promote and extend” its use ; but to harm someone’s freedom has never been a right, and it would be a mistake to think that such a principle would be lost within a human association.[7] In other words, freedom is therefore entrusted to this État social, which also meant, somehow in an utilitarian perspective but in fact simply by not reproducing potential inequalities existing in a state of nature (or under the rule of a tyrant) preventing its abuses. This balance between human rights and citizens’ responsibilities and obligations is thus well illustrated by this Sieyès’ initial “déclaration des droits” containing 42 articles and submitted to the Committee for further discussions.[8]


Following the latter, these principles succeeded in the suppression of all privileges, from 4 to 11 August and, in relation to freedom of expression, in article 11 of the final Declaration: “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.”[9] Freedom, and freedom of printing and expression were supposed to be fully assured as inalienable natural rights, but since these abuses were not defined, this inevitable question, on which the young Revolution clearly rested on, soon emerged. Even though the “particular interest” could not be “sacrificed” to the “general interest”, for Sieyès, enemies of the new regime were indeed certainly never far and potentially numerous.[10] These political ambiguities, stemming from goals uneasy to reconcile, explain the sense of urgency, that in a way culminated later through the Terreur paranoia, from which the Girondins would themselves fall.[11] In relation to reproduction rights and the literary market organisation, the situation was obviously made more complex by the formal suppression of all privileges. But because of this wavering juridical period, some book privileges continued to be issued by the king, at least, it seems, up to the summer of 1790, knowing that the Parisian book trade corporation had itself a few months left to live, until the passing of the Décret d’Allarde, in March 1791.[12]


Political pragmatism and responsiveness were thus necessary, as shown in the discussions before the National Assembly on the freedom of the press from 12 January 1790, and the prompt proposition for a legislation by Sieyès a few days after. In fact, the deputies were discussing that day the “territorial division” when the question emerged abruptly, as soon as the reunion of the regions of the Basques and of the Bearn had been decided.[13] Indeed, the complaint of the deputy Desmeuniers that an erroneous status – president of the National Assembly – had been attributed to his person in libels from Lille, provoked a bitter reaction from his colleague Charles de Lameth: the actual and chaotic situation of the printing and publishing market through these libelous papers and pamphlets had obvious repercussions on the “public order”, although he admitted that he did not have himself in hands a solution – a projet of decree – to “reconcile the freedom of thinking with the national freedom”.[14] Moreover, the stability of the book trade was also important, since to survive, Lameth was also pointing out, many booksellers or printers had no choice but to produce these seditious or libelous papers to the detriment of “good books”.[15] If it was not surprising that these types of traditional publishing activities were at the time largely superseded by more or less ephemerous printed political news and polemics, the number of 20000 copies in relation to libelous matter circulating every week from a single Parisian bookseller, even if difficult to ascertain and even contested, was certainly an impressive figure brought out by Charles de Lameth.[16] In a way, there was some irony that even some Parisian protagonists of the trade had now themselves to produce such clandestine or illegal material, or pretend to do so, like their provincial counterparts during the Ancien Régime. The deputy Jacques-André d’Emeri concluded therefore that for the “public safety” (“salut public”) to be assured, it was necessary to take “efficient measures”, and to propose “immediately” a law “on the freedom of the press”.[17] Louis Marie d’Estourmel supported the motion by adding that in fact, among the grievances of the electors of his province (the Cambresis), was expressed the need that authors, booksellers and printers should be held accountable for this dangerous proliferation.[18] The National Assembly then formally decided that the Committee on the Constitution would quickly prepare and propose such a projet de réglement sur la liberté de la presse.


Not surprisingly, during these debates, apart from the traditional identifications that any published matter should include (from the sixteenth century) – name of the author, publisher, printer etc. –, there had been no mention of literary property or author’s rights. De facto however, as we shall see infra, authors as (modest) proprietors would be introduced in the Sieyès proposal, a bill that should be first understood as an important step in defining some principles upon which article 11 (and 10) of the Declaration of August 1789 could be collectively implemented.


4. Some significative steps into the definition of freedom of the press (1776-1791) 

Since that what was primarily at stake is essentially a political debate on what is or should be concretely the freedom of the press, it is not surprising that Condorcet, as an optimistic indefatigable promotor of a rational learning for the whole nation, could have been associated with Sieyès to the preparation of the bill. And they would in fact collaborate again in 1793 by founding the Journal d’instruction sociale, with Jules-Michel Duhamel.[19] Carla Hesse, in an influential article on the Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, also mentions that in an essay intitled De la liberté indéfinie de la presse, François Lanthenas wrote in 1791 that “[a] proposal of the Committee on the Constitution of the National Assembly to regulate the press, proposal attributed to MM. Condorcet and Sieyès, appeared a few months after this glorious revolution.”[20] Although the “proposal was publicly attributed to Condorcet as well as Sieyès”, the projet, after the Committee on the Constitution had been charged urgently from the 12 January to its preparation, was submitted to the National Assembly by Sieyès himself during the session of 20 January.[21] Nevertheless, a “good evidence” to support this joint attribution is supposed to stem from a close comparison between Condorcet’s Fragments sur la liberté de la presse (written in 1776 – f_1776a), which is claimed to disclose “striking” resemblances, in both the structure and substance, with Sieyès’s revolutionary text.[22] C. Hesse also recalls rightly that the moderate “Society of 1789” (the Club de 1789) was created at the beginning of January 1790, which included notably La Fayette, La Rochefoucauld, Liancourt, Dupont de Nemours (but also Mirabeau and Talleyrand), and its members might have as well participated to the elaboration of this bill.[23]


However, since this intimate contiguity is thus supposed to demonstrate a strong – “utilitarian” as we shall see – connection between the Ancien Régime and the Revolution over the dissemination of learning (and ultimately exclusive rights upon it), the question certainly calls a few further remarks on the existing links between the Fragments and the actual projet presented by Sieyès. While the latter’s introductory report emphasized positively on education, freedom of the press and its legal limits, Condorcet’s first pages – in fact a first section among seven of them – focused on the characters and the definition of crime (criminal intention, philosophy of punishment, etc). But both sources are evidently concerned by the freedom of the press, particularly in relation to what could constitute limits to this absolute freedom – a crucial question also debated by Malesherbes in 1788, and before – notably in relation to libel (“calomnies” and “diffamation”) against the private individuals as well as against public servants.[24] Condorcet also offered long developments that did not appear as such in 1790 (on “injures”, libel against the “corps constitués…”).[25] As regards the authors themselves, he admitted that they should be responsible for their writings – when they consented the publication of course – but also discussed in length the consequences, potentially counterproductive, of punishing them.[26] Ultimately, in Sieyès’ bill, they were made logically liable for their texts published with their approval.[27] Some essential points dealt under the Revolution were – inevitably perhaps – not considered in 1776, as would be the crucial role of the institution of a jury in the concrete determination of these offenses (“délits”). Overall, since their object were different – an unpublished essay with prospective discussions alternatively theoretical and more technical, and a bill with a traditional preliminary report and 44 articles – it appears ultimately uneasy to follow the “striking” evidence of their common “organizational structure” and priorities.


Still, the Projet de loi contre les délits qui peuvent se commettre par la voie de l’impression et par la publication des écrits et des gravures, proposed to the deputies in January 1790, served  the most liberal opinions of the Lumières and responded to the concrete implementation of Article 11 of the Declaration and the effective suppression of all preconditional censorship. The phraseology is typical of the revolutionary eloquence in a report presented to the National Assembly – here “les considérans”, in the name of the Committee on the Constitution – : “It is not due to a law that the citizens think, talk, write and publish their thoughts: it is due to their natural rights; rights which men have brought in association, and for the maintenance of which they have established the law itself and all the public means which serve it.”[28] The national cause was therefore to favour the diffusion of the Lumières against all ignorance.[29] And in relation to the abuses of freedom, because every citizen has a common responsibility, “[t]he freedom of the press, like all freedoms, thus must have its legal limits.” In particular, as mentioned, Sieyès was convinced that one of the most legitimate ways of securing these further regulations, and reconciling the principle with its potential abuses, would be the institution of a jury, the best means to associate actively the “enlightened citizens” to its defence. This is probably why a significant part of the report, to conclude it, was indeed devoted to the jurés – “The decision on the issue by a jury is also the best response that we may give to those who would find that there remains enough vagueness in some of the first articles.” – but also the final title (De l’instruction et du jugement, articles 34 to 44) of the bill.[30]


Under this projet on the regulation of the freedom of the press, moreover under the pressure of some booksellers or printers to pursue the spreading of seditious writings, the question concerning “the property in ideas” was therefore subordinated to this vital ambition.


5. An incidental and provisional recognition of literary property  

In relation to exclusive rights on writings, and to come back to the above association between the Fragments and the Sieyès proposal, if “ideas were social rather than individual in origin” for Condorcet in 1776, the proposition to endorse literary property in 1790 means that he had been finally compelled to recognize or accept that some kind of exclusive right over these “ideas” was now ineluctable.[31] Although there are, to our knowledge, no direct sources, starting from Condorcet himself, to explain explicitly this potential conversion during these complex legislative circumstances, the Fragments was indeed denying, in a subdivision of the last section (VII) intitled Des privilèges de la propriété littéraire, not only a property over “ideas” but even over the forms in which they were expressed, however pleasant (“tournures agréables”) they could be: in short as we have already discussed this source, although Condorcet recognized that existing book trade privileges aimed to protect exclusivity over “expressions” and “phrases” used in a work, this literary incarnation was regarded as far less important than the largest possible communication of useful truths and discoveries.[32] Is it in fact from this singular perspective, or from a deeper conception of literature, that the claims of the Parisian booksellers (and Diderot) for their monopolies are often summarized, going back as far as Louis d’Héricourt’s memorandum in the 1720s, as being ultimately about “property in ideas” ?[33] Nevertheless, although such distinction had been more commonly formulated from the second half of the eighteenth century, Condorcet certainly made it perfectly clear that it was artificial, and to the detriment of the public interest.


Moreover, since the main developments of the report, as mentioned, were necessarily devoted to the fact that communicating thoughts are “natural rights”, the nature of the right of reproduction (and representation) conceded, the choice of “property” in the bill’s articles and the reason of its limitations were questions left behind. It was merely recognized that freedom, and more generally the “freedom of doing” (“liberté de faire”), contributed to the production of writings, and that excessive limits weighting on it would “attack the fruit of genius”.[34] All the works that contributed to the enlightenment, but also the “commerce of thought”, would certainly benefit from this liberation. But consecutively, to what extent free trade and free competition would be useful for this type of commerce and, therefore, with what acceptable boundaries if (and as) a property had to be recognized and secured? Apparently disappointed that this old question could not be debated further in this context, and in an equivocal conclusive formulation, Sieyès told the Assembly that a legislation to “encourage” the “useful” implementations of this particular sort of commerce could not be “at the moment” properly established: again, he explicitly insisted, what was discussed was about “a law to repress the abuses of the press”.[35] Thus, this lack of time (“[l]e temps nous a manqué…”) justified that this legislation had been introduced to be only provisional, in other words, to paraphrase Sieyès, not setting a different order of things than the one existing at this (transitional) present state, and a fortiori not establishing anything definitive for the future: therefore, the report insisted, the law will produce its effects for two years, eventually renewable if a general codification or a homogenous body of laws were not achieved before this term.[36] This was also the principle settled by the very first article of the bill.[37]


Not surprisingly, following this introduction, the bill itself – its operating articles – was accordingly firstly concerned by limitations on the freedom of the press. Articles 14 and 18 were then respectively devoted to the recognition of the rights of reproduction and representation. Article 14, included in the first section of the bill on sanctions for abuses against freedom of the press, established a right of property, which seemed conditionally assured for 10 years post mortem auctoris: “The progress of the enlightenment, and by consequence the public utility unite themselves around the ideas of distributive justice, to demand that the property of a work be preserved (“assurée”) for the author by law.”[38] The formulation is indeed somehow paradoxical, starting immediately by general interest considerations to justify more than a simple reward from the law, and suggesting a pre-existent right of property, as would be a natural right. Article 18, without further theoretical considerations, separately stated a right of representation, that is that a manuscript or a printed copy of the play could not be represented without the consent of their authors (during their live and 5 years post mortem).[39] The second part of the bill  - De la responsabilité – articles 23 to 33, focused on the identification of the individuals responsible for the circulations of unlawful writings, starting from their true authors (article XXX).[40] As mentioned supra, the ultimate and third part – De l’instruction et du jugement – concerned specifically the introduction and the role of a jury in the judicial process.[41]


In view of article 1 and its transitional legal prescription, such prudence was inevitable, above the fact that the tumult of the Revolution requested a humble voluntarism in all that had to be rebuilt, starting from a question at the core of its perennity, freedom of the press and its potential abuses. Sieyès himself, as seen for the framing of the Declaration of August 1789, had henceforth to reconcile natural rights, declared inalienable, and their collective implementation: the individual but also the citizen, the right balance between them, and the necessity for the latter to be sufficiently educated for the political role he was now compelled to endorse. These cautious efforts before the National Assembly proved to be sterile, although a report being “frequently applauded” during its presentation.[42] The deputies ordered the printing of the bill and its presentation, but adjourned its discussion, which would turn out to be a definitive decision.[43] This immediate loss does not impair a more positive fate, although equivocal in its interpretation.


6. The fate(s) of the Sieyès projet 

The actual fate of the bill was to be confronted to a “quasi-libertarian” atmosphere, lasting from the first months of the Revolution until the turbulent discussions concerning the future constitution in 1791.[44] In short, any regulations against the freedom of the press, even though allowed in article 11 of the Declaration of 1789, were being perceived at this stage as a threat against its primitive principle. Therefore, what could appear to be calumnies were eventually useful, legitimate critics from free citizens against any government (and any potential despotism), and Robespierre himself, in May 1791, relied explicitly on the American choices in that matter to defend this absolute position.[45] Despite the lobbying of some booksellers for exclusive rights to avoid the circulation of seditious matter to survive (see supra), these circumstances and the pressure must have been intense on Sieyès (and Condorcet) for such premature regulations. This explains that journalists like Élysée Loustalot and Louis-Marie Prudhomme, who would be strong voices for an absolute freedom of the press in their journal Révolution de Paris, immediately contested the projet, but also, along Marat and Brissot, Louis-Félix Guynement de Kéralio, ex-censor and now a fervent revolutionary, who claimed that if this freedom is a “great public good” for a time, it must remain that way for all times.[46] As a probable main contributor of the bill, Condorcet also received a substantial direct appeal, from Jean René Loyseau, who wrote an open letter to denounce in particular the fact that the name of the author or the printer should be known in any publication.[47]


More generally, these original tensions would imply multiple contradictions between the natural, civil and political rights secured by the Revolution and their actual enjoyment, starting for the French citizens themselves. Until the end, in even more extreme political circumstances, Condorcet, as Duhamel, defended the idea that without the diffusion of learning, citizens’ own natural rights would be threatened again, at the best confining them to their sole theoretical acceptation.[48] Nevertheless, some institutions promoted by the bill, notably the jury, would remain a true measure assessing that succeeding political regimes in the nineteenth century were committed – very inconsistently obviously – to implement these limits to the freedom of the press in a reasonably proportional way.[49]


The few reactions focusing on literary property and articles 14 (and 18) appear logically, since the question was ancillary itself, to have been secondary or only indirect. Kéralio attacked exclusive rights within the book trade, but essentially because this resurgence of monopolies or privileges would constitute a further obstacle against the “liberty” of the press and the enlightenment.[50] Although some booksellers – notably the famous Charles-Joseph Panckoucke – had already adapted themselves to a more competitive trade since the limited privileges in duration conceded to the booksellers after 1777, extended exclusive rights were of course still being requested, as it had long been the case in the Ancien Régime.[51] These regular solicitations, as we have seen, were also active as regards the Sieyès projet, and would be again so a year after, with another bill, this time intended to be perennial and supporting a perpetual property right: the François Hell projet (f_1791a). The question had indeed only been settled in relation to the right of representation with Le Chapelier in January 1791 (see f_1791), and uncertainty was still a matter of considerable concern. 


Nevertheless, the fact that this bill established incidentally, at the very beginning of the Revolution, an exclusive right of reproduction characterized by its limitations, intimately combined with an emblematic mémoire from the Ancien Régime whose author was himself against the “very notion of literary property in ideas” for the sake of the encouragement of learning, appears to support ideally an original, powerful (if not dominant ?), “utilitarian doctrine” or “instrumentalist notion of public good” in the French droit d’auteur.[52] Indeed, through this initial compromise “between individual and collective claims on ideas”, what was an urgent and provisional proposal on the freedom of the press henceforth can become the legal foundations of literary property of this new political era: as Carla Hesse simply puts it, “[t]he decree adopted on 19 July 1793 amounted to yet another version of the Condorcet/Sieyès proposal of 1790.”[53] Or, in broader  terms, another “Condorcet/Sieyès” version making the subsequent bills or laws on literary property substantially tied to the consequential approach which determined the legal fate of the book trade in Donaldson v. Becket in 1774.[54] A limited property right which, it seems, could have been thus indifferently labelled as a limited copyright: therefore, the sterile discursive grandiloquence used by Lakanal in his report in 1793, even if (or because ?) the public good was not then primarily considered, can be portrayed as a way to “tout” the  “slightly revised” Sieyès bill.[55] Collaterally, it appears equally fruitless to allow the same attention to the Hell projet against this instrumentalist historical tide and mostly being reduced, when mentioned, to its submission to the forces expressed by the trade lobbying and its consecutive extravagant absolute property on ideas or expressions. Nothing is more “vulgar” than ideas would say much later (Louis-Ferdinand) Céline, but since the distinction between these two potential objects of monopolies was factitious for Condorcet, syntagms like “owning ideas”, or “property in ideas” may indeed appear to be more than ellipsis or editorial slogans.[56]


C. Hesse’s Enlightenment article, with the important questions it raises on the confrontation of “two epistemological stances” (between the individual and the collective), remains a strong and persistent reference in recent publications.[57] However, even though the aim is to deconstruct a stereotyped or caricatural history of a droit d’auteur à la française under the name of immaculate creation – or, to use K. Scott’s formulation, “…the ideal figure of the Romantic author, the poster-boy for literary copyright and its histories…”[58] , promoting the Sieyès projet as a landmark, if not the major, piece of literary property legislation of the Revolution, seems to bear the opposite effect, in putting an excessive emphasis towards a more univocal “utilitarian” path. It remains arguable to grant such a fate to a bill on the freedom of the press, about which Sieyès himself, in these exceptional circumstances, explicitly regretted the lack of time for further debate. In this perspective, the consecutive relegation of the Hell projet to its excesses can be problematic, since it attempted more seriously to define the object of this still probational literary property, ironically a forgotten question, while simultaneously endeavouring to explain, before Lakanal did in the same way, what Le Chapelier had meant in his report by “public property” a few months before (see f_1791). Furthermore, even though the rough legal means – property, eventually perpetual – employed could be comfortably criticized, Hell himself explicitly defended that his bill was also conceived for the benefit of the citizens’ enlightenment, which is the common good, and after all, the goal of every legitimate legislation. As for the first established legislation on literary and artistic property of this political era, the July 1793 act (see f_1793), with its original formulations and archeology, the language used by Lakanal to briefly report it, far from being conceived unrealistically nor ex nihilo, may be interpreted differently than a mere communicational varnish. That being said, the Sieyès projet remains obviously at the center of discussions on literary property (in ideas or their expression…), and has undoubtably his place as a “core source” in the Primary Sources database; historical debates in this field are of course the best way, as Elena Cooper puts it rightly, “to imagine things differently and to look to the future with a more critical eye”.[59]


7. References

Feyel G. “Le journalisme au temps de la Révolution : un pouvoir de vérité et de justice au service des citoyens”, in Annales historiques de la Révolution française, n °333, 2003

Hesse C., “Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, 1777–1793” (1990) 30 Representations 109-137

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)

Walton C., La liberté d’expression en Révolution, Les moeurs, l’honneur, la calomnie (Presses universitaires de Rennes, 2019)



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


[1] As one also knows, this famous medieval assembly represented the three estates or orders of the kingdom, i.e. the clergy, the nobility and the commoners, the latter being called the Tiers État. The opening of this medieval institution was set for 5 May 1789.

[2] This history (of the press during the French Revolution)  benefits of course from a large historiography, but it is still useful to recall the impressive figures involved : 166 political and general information papers, 132 in Paris, have been launched in 1789, 44% (58 titles) being in the French capital daily periodicals : see G. Feyel, “Le journalisme au temps de la Révolution : un pouvoir de vérité et de justice au service des citoyens”, in Annales historiques de la Révolution française, n °333, 2003, 29.

[3] Quoted by Feyel, 30 : a “Constitution qui doit à jamais assurer la liberté”. Le Patriote Français (Le Patriote Français, journal libre, impartial et national par une société de citoyens dirigés par J-P Brissot de Warville), will be a major newspaper of the Revolution, published with a daily periodicity from June 1789 to 2 June 1793.

[4] Ibid., Lettre du comte de Mirabeau, à ses commettans, May 10, 1789.

[5] Préliminaire de la Constitution Françoise – Reconnoissance et exposition raisonnée Des Droits de l’Homme & du Citoyen, par M. l’Abbé Sieyès (Paris : Baudoin, 1789), 28 (“la liberté de tous”), 16 (“les ennemis de la liberté”). On the subtle contractualism of Sieyès (and also his interpretation of the “state of nature”), see Erwan Sommerer, “Le contractualisme révolutionnaire de Sieyès. Formation de la nation et prédétermination du pouvoir constituant », in Revue Française d’Histoire des Idées Politiques, 2011/1, n°33, 5-25.

[6] Ibid., 16 (“ des siècles de malheur”) ; on this distinction between civil and political rights, see 36-7.

[7] Ibid., 25: “Donc, l’homme entrant en société, ne fait pas le sacrifice d’une partie de sa liberté… Puisque le droit de nuire n’a jamais pu appartenir à la liberté, c’est une erreur de croire qu’on le perd en s’associant avec ses semblables.”

[8] Ibid., 28, and for the declaration of rights, “en maximes détachées, dans le goût de celles des Américains”, 41-51.

[9] This translation of Article 11 is taken from the Conseil Constitutionnel website (, see – still their translation - Declaration of Human and Civic Rights Of 26 August 1789Déclaration des Droits de l’Homme et du Citoyen –) (“La libre communication des pensées et des opinions est un des droits les plus précieux de l'homme : tout citoyen peut donc parler, écrire, imprimer librement, sauf à répondre de l'abus de cette liberté dans les cas déterminés par la loi.”).

[10]Intérêt de la communauté. Les disciples de JJ [Jean-Jacques (Rousseau)] entendent par là l’intérêt général, universel, tout. Pour moi, ce mot n’embrasse que la part de pouvoir, de moyens, d’actes que chaque associé met ou doit mettre d’après l’appel de la loi en commun… Le sacrifice de l’intérêt particulier à l’intérêt général présente une notion confuse” (in Des Manuscrits de Sieyès, 1770-1815, dir. by C. Fauré (Paris : Champion, 2007) – 1773-1799, 466 –) quoted by C. Fauré, “Sieyès, Rousseau et la théorie du contrat” in Figures de Sieyès, dir. by Pierre-Yves Quiviger, Vincent Denis et Jean Salem (Paris : éditions de la Sorbonne, 2008), 28 (OpenEdition Books, 2019) (in this article, C. Fauré explores a hypothetical influence of Rousseau on Sieyès, but also points out the importance of Spinoza for the abbé).

[11] This fall, the arrest of the Girondins deputies, intervened the 2 June 1793. Soon after, the famous decree passed on 17 September 1793 to neutralise the potential “suspects” (Décret qui ordonne l’arrestation des gens suspects) against the Republic being certainly a good illustration of this evolution towards an extreme “state of exception” (on this vast question, see, for example, F. Saint-Bonnet, l’état d’exception – Paris : Puf, 2001).

[12] See M.-C. Dock, Contribution historique à l'étude des droits d'auteur (Paris : LGDJ, 1962), 155. A.-C. Renouard, Traité des droits d'auteur dans la littérature, les sciences et les Beaux-Arts, 2 vols (Paris : Jules Renouard et Cie, Libraires, 1838-1839), 1 : 192-93 : as mentioned in our commentary on the Hell projet (f_1791a), the last privilege registered on the Chambre syndicale of the Communauté des libraires et imprimeurs of Paris had been so the 27 July 1790, to the benefit of Langlois Père, bookseller, for a book entitled Étrennes intéressantes des quatre parties du monde.

[13] P.-J.-B. Buchez & P.-C. Roux eds, Histoire parlementaire de la Révolution française ou Journal des assemblées nationales depuis 1789 jusqu’en 1845, 40 vols (Paris : Paulin, 1834), 4 : 267, 269-70.

[14] Ibid., 4: 270.

[15] See C. Hesse, “Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, 1777–1793” (1990) 30 Representations, 117, with some useful translations of the intervention of Charles de Lameth during this session of 12 January 1790 : “…a Paris publisher has just reported to me that, unable to make any profit printing good books, he is being forced to go into the business of printing and selling libelous matter…”. In the course of these parliamentary exchanges, the deputy Leclerc thought that these libelous papers did not come from the “official” printers of Paris but from printing presses brought out by numerous individual initiatives (Histoire parlementaire…, 4 :271).

[16] Histoire parlementaire, 4 : 270. M. de Lameth held this information from a Parisian bookseller, who confessed  himself this new habit, but the deputy le Clerc (271), taking the defense of the Parisian library, was indeed doubtful about the fact that such a expansion was due to regular or official printers.

[17] Ibid., 4: 271 : “Mais je crois qu’il importe au salut public de prendre des précautions efficaces, et je demande que le comité de constitution soit chargé de présenter incessamment une loi sur la liberté de la presse.”

[18] Ibid., 4: 272 : “M. d’Estourmel a appuyé cette motion ; ses cahiers lui ordonnent d’exiger la garantie des auteurs, libraires et imprimeurs.”

[19] Journal d’instruction sociale, par les citoyens Condorcet, Sieyès et Duhamel (Paris : de l’Imprimerie des Sourds-Muets), published from June 1793, each week, for only six issues. The citoyen Duhamel was a teacher for the “deaf-mute” (Instituteur Adjoint des Sourds-Muets de l’Ecole de Paris, as he presents himself in his Quelle est l’instruction necessaire au citoyen français ? : essai analytique sur cette question, Paris : De l’Imprimerie de l’Institution nationale des Sourds-Muets, 1792).

[20] Hesse, 119, (n 47 for her quotation and translation of this useful Lanthenas’ extract). François-Xavier Lanthenas was a member of the Club des Jacobins and would be deputy of the Convention (1792-95) and also a Member of the Conseil des Cinq-Cents (1795-1797). He also collaborated with Le Patriote Français, Brissot’s newspaper.

[21] Histoire parlementaire, 4 : 273 (f_1790) : Buchez and Roux just mentioned that when Sieyès started to report that day, the Assembly was in fact still occupied by the territorial division debates. See also the Gazette Nationale ou le Moniteur Universel (Paris : 1789-1810), 22 January 1790, 4, which simply stated that president of the Assembly gave the floor to Sieyès : “La parole est à M. l’abbé Syeyes, pour un rapport sur la liberté de la presse.”

[22] Hesse, 119.

[23] Ibid.

[24] See 272 to 276 in the Fragments (f_1776a) and VII to XII (281-2) in the Sieyès projet.

[25] Notably on insults (injures), or even devoted full sections on libel against the “corps” (“les corps constitués”), before coming back to more general consideration on censorship (“VI. Des délits commis par les livres, considérés dans les principes de la politique, ou examen de cette question”… 285). Some more thoughts on the laws which should be elaborated on these principles are the object of a new section intitled “Quelles lois, d’après les principes précédents, convient-il d’établir contre les auteurs des livres ?(294).

[26] Condorcet, from 285, and 297. He also pointed out that, if the offence is mainly the distribution of the suspected book, often, these “distributeurs”, etc., could not be held automatically responsible of books that did not reveal clearly (to their own mind) its problematic nature, even for the printer himself : “… quoiqu’ils ne puissent dire qu’ils n’ont pas lu le livre, et qu’ainsi il n’y ait pas besoin de preuves contre eux, il y a toujours à examiner s’il est possible qu’ils n’aient pas aperçu le délit… La calomnie, l’injure, l’excitation à la révolte, peuvent être très-claires dans l’esprit de l’auteur, et rester inintelligibles pour un imprimeur.” (302).

[27] See article 30 in particular : “L’auteur d’un ouvrage ne sera responsable de son impression que dans le cas où elle aura été faite par sa volonté ou de son consentement”. In relation to alternative and secondary responsibility, article 31 could eventually correspond to the spirit of some developments made by Condorcet in his Fragments on the “distributeurs” (Des Imprimeurs, marchand et distributeurs – see Condorcet, 302).

[28] Sieyès, 274.

[29] See, for example, 276 : “By the torchlight of public opinion, all the enemies of the nation and of equality, who also have to be enlightened, hasten to withdraw their shameful intentions”, and a little bit further, same page, a typical thematic used throughout the nineteenth century – printing allow the political dimension of the forum or the agora to be a reality again – : Printing is, for the vastness of space, what the voice of the orator was for the public marketplace of Athens and Rome; through it, the thoughts of a man of genius are simultaneously carried to all places, it strikes, as it were, the ear of the entire human race.” On the same perspective, the political power of the press being indeed able to unite all the citizens, see for example the report of Eugène Pelletan before the Sénat in June 1881.

[30] Ibid., 279, and 287-8.

[31] The formulation is from C. Hesse (ibid, 119). In a more recent article (synthetic and less specialized but still informative on her views), she summarized the “Rise of Intellectual Property” in which Condorcet finds again a central role, the same perspective is emphasized: “Moreover, Condorcet could see no social value in granting individual claims upon ideas”, in “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), 36.

[32] Condorcet, 308, 311.

[33] Hesse, 112 : “Invoking John Locke's notion of the origins of property in appropriation, d'Héricourt argued that the property in ideas is derived from labor: ‘It is the fruits of one's own labor, which one should have the freedom to dispose of at one's will.’”. And more generally (ibid.), maybe more ambiguously, “…the argument that ideas were the property of the individual author was first advanced in defense of the monopoly of the Paris Publishers' Guild on texts whose authors were long since dead” (or again, p. 114, about Diderot’s 1763 defense of literary property : “In his Lettre historique et politique sur le commerce de la librairie, Diderot argued that ideas are the most inviolable form of property…”). It appears nevertheless than Louis d’Héricourt only supported a right on the “manuscript” (“manuscrit”) or the “book” (“ouvrage”): on this, see Louis d’Héricourt’s memorandum, f_1725b, 2-3 and in particular the “First proposition” section in which he starts to explain that the right these booksellers were claiming derived “from their acquisition of the Manuscript, the property of which the author transfers to the Bookseller by means of the payment he receives in return…”  

[34] Ibid., 277.

[35] Ibid., 277-8.

[36] Ibid., 278.

[37] Ibid., 280 : “Art. 1er. La présente loi n’aura d’effet que 2 ans, à compter du jour de sa promulgation.

[38] Sieyès, 283.

[39] Ibid., 284. Article 19 concerned printed music and its representation.

[40] Ibid., 286.

[41] Ibid., 287 : importance of the jury as a further guarantee of a good application of the law to be compared to the liberal evolution of its role in the libel act of 1792 ((32 Geo. III c. 60).

[42] Gazette nationale ou le Moniteur universel, 23 January 1790, 4 : “Le rapport de M. l’abbé Syeyes a été fréquemment interrompu par des applaudissements”.

[43] Ibid.: L’assemblée en ordonne l’impression [the report], ainsi que du projet de décret, et ajourne la discussion”.

[44] The expression “quasi libertaire” is from C. Walton, La liberté d’expression en Révolution, Les moeurs, l’honneur, la calomnie (Presses universitaires de Rennes, 2019), 135 (translated by Jacqueline Odin from Policing Public Opinion in the French Revolution. The Culture of Calumny and the Problem of Free Speech (Oxford, Oxford University Press, 2009).

[45] Probably referring to the third article (the future December 1791 first Amendment) of the September 1789 Bill of Rights:  see notably, before he would adapt it for the National Assembly, his Discours sur la liberté de la presse, prononcé à la Société des amis de la Constitution, le 11 mai 1791 (Paris : Imprimerie Nationale, 1791), 3 : “Le droit de communiquer ses pensées, par la parole, par l’écriture ou par l’impression, ne peut être gêné ni limité en aucune manière ; voilà les termes de la loi que les Etats-Unis d’Amérique ont faite sur la liberté de la presse, & j’avoue que je suis bien aise de pouvoir présenter mon opinion, sous de pareils auspices, à ceux qui auroient été tentés de la trouver extraordinaire ou exagérée. La liberté de la presse doit être entière & indéfinie, ou elle n’existe pas.” See also 7-8, on Galilei and Descartes, men of “genius” who anticipated, at high costs for them, some “great truths”. The public opinion was therefore the only legitimate “censor” within the diversity of private opinions: “L’opinion publique, voilà le seul juge competent des opinions privées, le seul censeur légitime des écrits.” (10). Consequently, the first article proposed by Robespierre was as radical as his speech: “1. Que tout homme a le droit de publier ses pensées, par quelques moyens que ce soit ; & que la liberté de la presse, ne peut être gênée ni limitée en aucune manière.” (22).

[46] Quoted by Walton, 143, who devotes a few pages on the severe reception of the bill : “…si la liberté de la presse est un grand bien public dans un temps, elle l’est dans tous.” Walton (ibid.) also mentions Jacques Mallet du Pan, who attacked the provisional aspect of the bill : “Le provisoire indique l’incertitude du législateur…”

[47] Lettre de M. Loyseau, auteur du Journal de constitution et de législation ; à M. de Condorcet, sur le projet de loi contre les délits qui peuvent se commettre par la voie de l'impression, et par la publication des écrits et des gravures, présenté à l'Assemblée nationale, le 20 janvier 1790, par le comité de Constitution (Paris : Imprimerie du Patriote français, 1790). See Walton (143-44), who quoted this letter, and particularly : “Vouloir que l’auteur ou l’imprimeur soit connu, c’est prendre sur la liberté de la presse.”

[48] Condorcet, Esquisse d’un tableau historique de l’esprit humain (Paris : Masson & Fils, 1822), 277, still being elaborated a few months before his death when hiding at Madame de Vernet’s house, near the Luxembourg palace, who was speaking about equality before instruction and learning, allowing people of a same country (and all Men) who/qui peuvent vouloir confier aux plus éclairés le soin de les gouverner, mais non être forcés de le leur abandonner avec une aveugle confiance.Duhamel, in the title page, of Quelle est l’instruction necessaire au citoyen français ? : essai analytique sur cette question (see n 19), started with the following conviction : “Quand un Peuple ignorant veut être libre, il faut, ou des lumieres pour éclairer sa volonté, ou la force pour le contenir dans ses mouvements aveugles.”

[49] After the 1919 legislation de Serre (Hercule de Serre) – see notably on further discussions on this institution the Examen des lois des 17, 26 mai ; 9 juin 1819, et 31 mars 1820 relatives à la repression des abus de la liberté de la presse by M. Carnot (Paris, Nève ed., 1821) – the jury institution would be in fact upheld in the Third Republic foundational liberal law of 29 July 1881 on the freedom of press (institution finally suppressed in 1944).

[50] See Hesse, 121-22, who points out this “line of attack” of Kéralio against “the very notion of property in ideas”.... 

[51] See for example Henri-Jean Martin, “A la veille de la Révolution: crise et réorganisation de la librairie”, in R. Chartier et H.-J. Martin, Histoire de l'édition française (Paris : Promodis, 1984), vol. II, 514. See also our commentary in f_1777a on the royal legislation of August 1777.

[52] Hesse, 116, 121, and for “utilitarian doctrine”, Hesse, Rise, 36. 

[53] Hesse, 121, 128.

[54] The link between the famous 1774 decision and the 1793 Act is indeed explicitly made by C. Hesse (in Rise, 39): “The Law of July 19, 1793, became the basis for all subsequent literary property law in France. It ratified the compromise proposed by Sieyès in 1791 [1790] and, like the British Donaldson v. Becket decision of 1774, enshrined the concept of a limited property right as the best means to strike a balance between remunerating authors and protecting the public interest in the advancement of learning.” To clarify what is understood by under C. Hesse under the word “utilitarian”, the idea, from B. Sherman and L. Bently, of a “consequential” or a “forward-thinking”, which characterized Donaldson v. Becket, instead of “a priori style examinations” (for Millar v. Taylor) could be useful (see Brad Sherman & Lionel Bently, The Making of Modern Intellectual Property Law, The British Experience, 1760-1911 – Cambridge: Cambridge University Press, 1999 –, 39).

[55] Hesse, Rise, 39: only in 1793 was the National Convention “able to pass a slightly revised version of the Sieyès law, now touted as a ‘Declaration of the Rights of Genius’”.

[56] And “the encyclopaedias are full of ideas…” in Louis-Ferdinand Céline vous parle, 1958 (interview realised and recorded in 1958 by Paul Chambrillon).

[57] See for example A. Strowel, Le droit d’auteur européen en transition numérique. De ses origines à l’unification européenne et aux défis de l’intelligence articificielle et des Big Data (Belgique : Larcier, 2022), 32-33, with its emphasis on Condorcet, and Sieyès projet, or also K. Scott, Becoming property, Art theory and Law in Early Modern France (Yale University Press : 2018), in her introduction (15), and notably from 288.

[58] Scott, 17.

[59] Elena Cooper, Copyright History as a Critical Lens, 2022, CREATe Working Paper 2022/7 ( and EIPR, 2022, 43(3) 128-131.