Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: f_1777a

Commentary on the French Decree of 30 August 1777

Frédéric Rideau*

Faculty of Law, University of Poitiers, France

Please cite as:

Rideau, F. (2023) ‘Commentary on the French Decree of 30 August 1777', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Authors and the trade before 1777

4. The author’s “propriété de droit”…

5… secured by a redefined privilege

6. From 1777 to 1793 (and after)

7. References 

1. Full title

Decree of the King's Council of State, containing regulations on the duration of book trade privileges. 30 August 1777

 2. Abstract.

Like the 1774 Donaldson v. Beckett case in Great Britain, the French royal provisions of 30 August 1777, regarding the duration of exclusive privileges, constituted an essential date in the history of literary property. Such property had been claimed at least from the 1720s onwards, notably from the Parisian booksellers and their lawyers. However, the author’s preeminence remained theoretical, until some writers, along a few emblematic judicial cases, contested the bookseller’s corporative hegemony, starting by the symbolic wish to be able to sell their own productions. The decree thus seemed to confirm concretely this evolution, by securing an unprecedented perpetual right to authors, while simultaneously restricting its effects if they chose to transfer their work and privilege to a bookseller. Moreover, these rather convoluted provisions came at the price of a redefinition of the traditional conception of book trade privilege. Nevertheless, although criticized at the time, and despite contradictory interpretations, it appears, upon the principles it settled, that this ultimate legislation of the Ancien Régime can be intimately linked with the revolutionary laws to come.

3. Authors and the trade before 1777 

To explain and justify the last royal legislation on the book trade, Antoine-Louis Séguier, Avocat général (prosecutor) representing the King before the Paris Parliament, asserted that, as soon as the sixteenth century, “one began to feel the authors’ right of property”.[1] Even if this right was not formally settled in ancient regulations claimed the famous king’s lawyer, it had been presumed by the “laws” and the extensive durations secured to the owner of the “original manuscript”.[2] Of course, such affirmation deserves some caution, but in fact, the lawyer Aubry had already, in the years 1690, pushed forward the defence of his  clients, the Paris booksellers, on this juridical foundation. “Property” was then justified by the author’s “labour” as well as the booksellers’ “industry” – a premonitory distinction? – although the former protagonist of this collaborative publishing adventure was clearly emerging – or whose alleged rights were becoming more perceptible – (see f_1690s).[3] Louis d’Héricourt developed in this perspective this proprietary argumentation three decades later, in a landmark memorandum (f_1725b), focusing on the original author’s manuscript and work as the source of exclusivity. The peculiarity of the writer’s “labour” nevertheless gave him only a theoretical advantage, since the traditional corporative organization of the book trade made the exercise of the alleged property right essentially possible through publication with its most powerful members, after the full transmission of his manuscript at a fixed price.[4] But during the 1760s, the fight of Luneau de Boisjermain, who endeavoured to keep control of the sale of his literary productions, and whose own books had been seized in 1768 at his home by the Parisian booksellers, illustrated emblematically a growing “professionalization” of letters by a more active presence of authors within the trade.[5] Consequently, because of this “literary superiority” over trade “subalterns” and “valets”, to use Fenouillot de Falbaire’s sharp words, any writer, from these “sacred rights” of property, should be able to determine the conditions in which his book should be made public.[6] This ascendancy also denoted severe criticism of authors who relied persistently on patronage, for the inequality and consubstantial obedience it implied.[7] These views were of course not followed by all writers and among them, a hugely prolific one, Rétif de la Bretonne, in his Contr’avis aux gens de Lettres, who defended the legitimate place the booksellers had to keep on the market.[8]

Still, against this locked economic structure, it was now claimed that authors should be encouraged to be their own active and autonomous publishers and sellers if they wished to – “les laisser faire” explained d’Alembert –, or the trade would continue to prosper while even some of the greatest writers had to tolerate difficult financial situations.[9] Such aspiration did not concern solely the authors’ control over their patrimonial interests but their effective freedom within the trade, questioning therefore the “harmony of the society”, as Fenouillot de Falbaire put it again, this social balance being troubled by a “small community” that was not “essentially inherent to the political body.”[10] Diderot himself, when he advocated in 1763 the extension of a more liberal “tacit permissions system”, less compatible with the existing concentration of privileges, had probably in mind the same perspective.[11] Ultimately, this growing pre-eminence of authors also seemed to have had some echo in the judicial system. The dispute involving the dramatic author Crébillon, which ended before the King’s court in 1749 (see f_1749) has thus been interpreted as an implicit recognition of the author’s literary property, although the “La Fontaine case” was probably more conclusive.[12] Indeed, perhaps convinced by the lawyer Roussel for the La Fontaine’s family, who focused on a natural “right of inheritance” of his clients – or was it the pragmatic necessity to break a long-lasting monopoly on his œuvres ? – the king’s council ruled in 1761 for the granddaughters’ great fabulist against the Parisian corporation (see f_1761). The La Fontaine case constituted a worrying warning for the trade.

The reasons for this “emergence” of the author – or at least its legibility  – will not be speculated here.[13] Interestingly enough however, on the legislative side and at the same moment, another great and useful production of the mind, the invention, had not been discussed under the same terms, and the declaration protecting inventors in December 1762 simply vested, to promote a competitive trade, a very limited protection to these intellectual works through traditional privileges “en fait de commerce” (see f_1762). In the literary field, to recognise formally property rights grounded in the author’s labour without increasing the booksellers’ omnipotence on the literary market, promised to be a challenge, even an aporia. Nevertheless, the king chose in 1777 to endorse the principle of literary property, but without the practical consequences expected by the booksellers’ “small community”.

4. The author’s “propriété de droit”… 

The distinction explicitly formulated since the sixteenth century between two types of labour involved in the publication of a book was finally upheld in the preamble of the fifth decree (over six) “on the duration of privileges”. For a bookseller, the privilege was indeed approving his “industry” – as mentioned, the same term used by the lawyer Aubry himself decades ago –, which directly implied here, for the king, the “reimbursement of any advance and to indemnify him against the costs incurred.” For the author, his “labour” (“travail”), not his industry, had to be protected. The language used had been obviously carefully chosen, and ultimately carried great consequences as to the way the royal favour was granted, with a drastically reduced privilege duration for booksellers. Indeed, the king believed justified to modulate the period of protection from, simply, a perpetual one, to the author’s life (art. 5), or ten years minimum (art. 3). Because, still considering the distinction between “labour” and “industry”, a “more enduring” – the euphemism is remarkable – duration conceded for booksellers would allow them to take advantage of the full exercise and effects of “a rightful property” (“une propriété de droit”), that is, to paraphrase the preamble, to convert a favour (“une jouissance de grâce”) into a right. Concretely, the reduction of the king’s protection from a perpetual right to its limited duration occurred essentially when the privilege (therefore the work) was transferred by the author (art. 5).

From the conjunction of the preamble and article 5, despite convoluted formulations Séguier would have to clarify (see infra), was thus recognised a literary property which clearly originated from the author’s distinctive labour. Moreover, following Luneau de Boisjermain’s efforts to control the commercialisation of his productions, this right was extended, against the most essential corporatist principles, to the freedom, for an author, to sell his own work. A “natural” and symbolic prerogative that Malesherbes, while directing the book trade administration between 1750 and 1763 under Louis XV, had already supported in his memoranda on the Librairie.^[14] Considering the political circumstances directly surrounding the young reign of Louis XVI from 1774, and the expanding penetration of the liberal ideas – natural property rights opposed to monopolies, “laissez faire & laisser passer” doctrines, etc – into the highest spheres of the royal entourage and his ministers – from Turgot, a “disciple” of Vincent de Gournay, to Malesherbes –, such unprecedented freedom, for authors, was eventually predictable.[15] What remained, at first glance, more surprising was that Louis d’Héricourt’s defence of literary property did not benefit technically to their usual, almost inevitable, transferees. Indeed, at a time when the complete suppression of the guild system had been – in vain – attempted by Turgot on the grounds of individual freedom, a property right with its full effects for the usual author’s transferee would have reinforced the wealth of the Parisian booksellers, against the “public advantage”.[16] The encouragement of “learning” – to use the Statute of Anne (uk_1710) terminology – and the spreading of the Enlightenment had indeed been strongly debated, and a more open market (for authorized books…), was a common goal in all European countries, probably as important as was a more liberal competition between inventors.^[17] In fact, the lawyer Gaultier de Biauzat, for the provincial booksellers, against the principle of any literary property, had relied largely on the comparison with the privileges “en fait de commerce” reorganized in 1762 as the best means to satisfy the common good (see f_1776).

Yet, pursuing the latter, the “national law” (“le droit national”), as Antoine-Louis Séguier, for the king, would put it in 1779, had to be considered along the natural “propriété de droit” that had been “consecrated today”, an “incontestable” right in “the hand of the author”...[18] But this conciliation came at an unprecedented redefinition of the nature of the royal favour itself.

5… secured by a redefined privilege. 

Book trade privileges remained inevitable in 1777 for two separate – but associated – reasons. Firstly, they had been the main vector of censorship until 1789, since they bore, from the end of the sixteenth century, the function of a political “permission” of printing.[19] As one knows, “censorship” was theoretically protecting the catholic foundations of the king’s absolute sovereignty (see f_1547). The second reason related to the original justification of the very first privileges, exclusivity, and to the specificity of the object of the “propriété de droit” now secured by royal legislation. Despite difficulties to define its incorporeal nature, it was acknowledged that when the work is published, the public is “associated” to the author’s property, but, pointed out Séguier, not in the way any purchaser of the physical copy of the work might understand.[20] Like open land – to use a usual metaphor of the eighteenth century – with impossible fences to settle or to keep, “nothing is easier than counterfeiting…”.[21] Therefore, he insisted, the writer is “communicating his lights [ses lumières], without renouncing to the right of disseminating them”, that is conditionally, but still under the necessary protection of “the public power”, through the sovereign favour – “la sauvegarde…” – able to assure fully its enjoyment.[22] In other words, even if the book trade privilege itself did not constitute the source of the exclusivity, the intrinsic vulnerability of literary property meant that its exercise still required the king’s “tutelary” act. Such a conception implied of course a drastic evolution of the traditional function of book trade privileges, from a lex privata conceded by the king according to his will (see f_1515), to a definition that had been explicitly supported by Louis d’Héricourt (or even Aubry).[23]

Concretely, the decree crucially established that when a privilege is henceforth granted to an author, so long as the censorship requirements were satisfied, it had to be delivered (perpetually) by the royal authorities. Nevertheless, it was far more complicated to justify that such a favour, “founded in justice”, was to be limited by the single fact of a cession of his work by an author. It seemed that literary property was thus losing potentially one of its usual main attributes (perpetual exclusivity) upon the simple fact that a contractual relationship occurred. Séguier strove to clarify these royal choices and relied on this unusual malleability of the royal prerogative, as if a dual definition of privileges was now pragmatically adapted to the life of the book trade and to the “advantage” of the public. Indeed, in any case, behind the king’s sovereignty on the administration of his privileges, the right itself, its nature, is not affected, concluded the king’s prosecutor, underlining that the “restriction [the King] placed on the duration of the favour is not destructive of the property”: it is only “a modification of the favour”, a “protection” (“sauvegarde”), of justice for the author, and of liberality (“libéralité”) for the bookseller.^[24]

Consecutively, moreover because such an issue was certainly not expected by the Parisian booksellers, the 1777 decree aroused critics as being juridically incoherent.[25] Still, a “propriété de droit” had been undoubtably upheld by the last book trade legislation of the Ancien Régime linking it, from this perspective, to the further legislation, despite the great political disruptions to come.

6. From 1777 to 1793 (and after) 

Beyond the legal introduction of property into the field of literary creation, the ambiguities of Seguier’s defence of the decree were undoubtedly evidence of the difficulties in setting the right balance between personal and “public property”. Augustin-Charles Renouard, not surprisingly because of his contestation of the very principle of literary property, later commented that it would have been easier for the royal administration to oppose explicitly these conflicting interests.^[26] The same tensions indeed arose under similar terms during the Revolution. With this in mind, the transposition, in the literary field, of the December 1762 provisions for inventors – a limited copyright as an encouragement from the king – or the adoption in France of the Statute of Anne, as suggested by Panckoucke in March 1790, would have probably supported the perception of a more coherent system of exclusivity.[27] Moreover, even though a natural right of property was thus secured before (and after) the Revolution under the same justifications – the singularity of the author’s “labour” – Ancien Régime privileges and, after 1789, national law (“la loi”), were obviously not equivalent means, politically speaking, to reach this objective. In 1826, the members of the Commission de la propriété littéraire (f_1826), seeking an extension of the duration of the right, thus recalled that the association of literary property with the “word privilege” brought “misfortune” to the former during the Revolution, starting with the suppression of privileges in August 1789 which inaugurated a new phase of vulnerability for its protection.[28] Nevertheless, they recognized the importance of the original consecration of literary property in 1777, and the “wisdom” of the decree, which should remain for them a “point of comparison” since it “settled property”, although a property different than others regarding the conditions under which it was secured.[29] 

Maybe because of the inherent ambivalence of legislation at crossroads, this last royal decree has been unequivocally analysed by C. Hesse as a simple reaffirmation, by the Crown, of “the absolutist interpretation of royal law as an emanation of the king’s grace alone”, the author, this “privileged creature”, himself being reduced consequently, under and by these political structures, to “a creation of the absolutist police state”.[30] It has also been underlined recently that the “the natural rights of authors” formulated by Louis d’Héricourt had “crucially [not been] admitted as such in the arrêt of 1777.”[31] More generally, the 1793 Literary and Artistic property Act has been mainly isolated from this potential genealogy, being for example characterized as a “considerable progress”.[32] Yet, beyond immediate political contingencies, there still seemed that a more essential dynamic at work linked 1777 and 1793 under the name of property and what it conveyed. And despite the immediate contestations of the provisions settled by articles 3 and 5, notably by the Parisian booksellers who knew that a more competitive market was about to develop against their monopolies in the kingdom, the legislation was confirmed in July 1778 (f_1778a).^[33] This arrêt du conseil notably clarified, in it its article 2, the situation of the authors who chose to keep their work and privileges, by preventing the printers and booksellers mandated for the task of printing and selling the books on their behalf from interpreting this type of contracts as implicit cessions of their property. Lastly, in 1786, the king would again retain the same legal qualification, “les droits de la propriété” (property rights) for musical publications, also emblematic of a coherent evolution, considering the long Ballard’s domination of the music publishing trade from the mid-16th century under traditional privileges (f_1552).

Finally, what also associates 1777 and the revolutionary legislation was of course the very broad question of the basic collective boundaries of individual rights, discussed by Sieyès in July 1789 when preparing the Declaration of the Rights of Man and of the Citizen (see f_1791). Nevertheless, by acknowledging a “propriété de droit” which stems from the writer’s specific “labour”, the decree of 1777 appeared to establish enduring ideas and principles, notably his freedom to be the seller, but also eventually the keeper, of his works, thus putting “the authors in their true position…”[34] 

7. References 

Chartier, R. and H.-J. Martin (eds), Histoire de l'édition française, Le livre triomphant, 1660-1830, 4 vols. (Paris : PROMODIS, 1983-1986) 

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

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

Pfister, L., “Author and Work in the French Print Privileges System: Some Milestones” in Ronan Deazley, Martin Kretschmer and Lionel Bently (eds), Privilege and Property, Essays on the History of Copyright (Cambridge: OpenBook Publishers, 2010)

Scott K., Becoming Property : Art, Theory and Law in Early Modern France (Yales University Press, New Haven and London, 2018)

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