Commentary on François Hell report
Faculty of Law, University of Poitiers, France
Please cite as:
Rideau, F. (2019) ‘Commentary on François Hell report and projet de décret (1791)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
1. Full title
3. The Hell projet in Committees
4. Unlimited property, secured by law
5. Unlimited property : for what purpose ?
1. Full title
Report to the National Assembly, by Mr. Hell, Deputy of the Bas-Rhin, on the property of scientific and literary productions
Following complaints from the book trade in 1790 and 1791, François Hell, deputy (of the National Assembly) for the Bas-Rhin, and member of the Committee on Agriculture and Commerce, was charged with elaborating a new “scientific” and literary property report and bill (“projet de décret”), a task which would also be submitted to the consultation of the Committee on the Constitution, before finally being lost. Although this proposal has eventually raised less attention than for the previous Sieyès attempt to regulate circulation of books (f_1790), it remains that it enshrined literary property in absolute terms which were also directly affiliated to the debates of the Ancien Régime, including, to some extent, the solutions adopted by the 1777 decrees (f_1777a). After exploring how such a radical projet made his way through the Committees, the commentary details how literary property, after being protected by book trade privileges, had now to be fully secured by the law, with a broad spectrum of protection for every kind of book, supposedly to the benefit for both the authors (and their assignees) and the general interest.
3. The Hell projet in Committees
The conditions in which the Hell projet was finally elaborated or submitted for an eventual discussion are not fully clear ; at that time, obviously, the National Assembly (Constituante from 9 July 1789), had many questions to deal with, and in particular a new constitution to elaborate, finally adopted the 3th of September 1791 (with its new assembly – Législative – to seat from October of the same year). The same year had also been tumultuous in relation to the reorganization of the national economy and the markets on liberal grounds. Indeed, in addition to the consecrated natural rights most significant couple in August 1789 (liberty and property), the Declaration of Human and Civic Rights also stated in its article 3 that, since sovereignty lies essentially in the Nation, “[n]o corporate body, no individual may exercise any authority that does not expressly emanate from it.” Consequently, the principle had to be formally secured and implemented into law. In a difficult and wavering context, notably in Paris during the spring, with persisting internal social tensions between different guild members or aspirants (maîtres and compagnons), freedom of trade and industry was proclaimed in March, legislation completed in June with the interdiction to reconstitute, whatever would be their goal, these ancient guilds or corporations. [i] Booksellers and printers certainly felt that their own trade was under threat, and were expecting some stability and protection against counterfeiting, although they had been eventually able to obtain further book trade privileges after 1789.[ii]
It is in these circumstances, after a first earlier unsuccessful attempt in January 1790 by Sieyès, meant to be temporary and concerning primarily press control, that the François Hell proposal on literary property was put forward.[iii] It followed a memorandum for the booksellers and printers of the Parisian University, addressed to the National Assembly and its Committee on the Constitution, and then presented the 6 September 1790 to the Committee on Agriculture and Commerce and its president, Meynier de Salinelles.[iv] Pointing out that freedom of the press could not justify disorders within the trade, they were essentially asking for the restoration of the “Code de la Librairie” of 1723.[v] Such a request was certainly reflecting these Parisian booksellers’ corporatist views, as points out Carla Hesse, in her reference article on this period (Enlightenment Epistemology…), although it was, in some way, a rather surprising choice, even if it was meant to infer that revolutionary natural rights could not limit exclusive protections supposedly conceded under similar grounds in the Ancien Régime.[vi] The “Code” itself indeed relied essentially on trade customs and a traditional definition of book trade privileges, that is with no mention of authors other than incidentally, which also implied, at the time, the interdiction to access the market and sell themselves their own books.[vii] Nonetheless, this royal legislation confirmed the absolute discretionary power of the king and his council to grant his protection, with, in particular, no strict nor explicit conditions for these privileges to be renewed, making very clear the wish of these members of the trade to obtain any legislation that would be able to lead to strong monopolies.[viii]
This first initial strategy did not succeed, at least quickly enough, and the question had to be brought again before the same Committee in January 1791, but this time directly from a letter of the Keeper of the Seals, submitted to its members. The argumentation evolved noticeably, since the “authors’ property” ("la propriété des auteurs"), for themselves and their assignees, was then clearly put forward as the best means to keep the letters flourishing in the kingdom.[ix] C. Hesse understands thus this letter as the manifestation of “a corporatistic cause under the guise of defending ‘authors’ rights’.”[x] This is probably true, although this “camouflage” was somehow hackneyed, as this ambiguity undoubtedly lies in the whole literary property debates since Louis d’Héricourt developed his defence, from 1725, for his clients from the trade. In this perspective, to rely again as explicitly on such grounds was anyway more appropriate and logical than the direct request to re-establish the Code of 1723. On23 May 1791, Hell mentioned before his Committee another letter from printers of Lyon, Jean-Marie Bruyset, Pierre-Marie Bruyset (and sons), who also urged for a law “that will secure to authors the property of their works.”[xi] It was explained that Valmont de Bomare had worked on a new edition of his famous dictionary – Dictionnaire raisonné, universel, d’histoire naturelle –, and that this work, here in its fifteen-volumes in-8° version, had been counterfeited only fifteen days after its publishing.[xii] This Procès-Verbal of the Committee, reporting on the Bruyset’s letter, clearly emphasized the huge potential loss this counterfeiting could imply : the printers complained that a considerable sum of 500000 livres had been necessary to produce this complete edition, and that without any protection against this rapacity within the trade, they would be reduced, with the author, to beggary.[xiii] To fully confirm that the mention of Valmont de Bomare’s own fate in this publishing adventure is another corporatist artifice, it would have been useful to learn more on the type of arrangement that linked him to his provincial printers. But we only know, from François Hell, at the beginning of his own report, that Valmont “has spent forty years on the composition”, and that “[t]he whole fortune of the author and the printers is merged in this new edition.” [xiv]
To avoid such a deplorable situation, Hell was thus finally charged, with the president Meynier, to elaborate a projet de loi that would have also to be submitted to discussion to the Committee on Constitution.[xv] Conceivably, the projet had then been printed by the Assembly in the course of the summer 1791, to allow the discussion to take place before the Constituante gave way to the Legislative.[xvi] It seems however that during this transitional political period, Hell’s proposal was not debated nor did it even reach the floor.[xvii] It remained the case that absolute literary property, unlimited in duration, was seemingly for Hell (and Meynier) the most appropriate means to allow authors and their partners from the trade to “collect the fruits of their long and expensive labours”, but now secured by law.[xviii]
4. Unlimited property, secured by law
After the Sieyès projet, in which literary property was somehowtreated incidentally, the emphasis was here clearly put on the source of what Hell calls also “droits des auteurs”, and even, in a most unusual but promising manner, the “droit d’auteur”.[xix] This right was nevertheless supported in terms, as regards its alleged superior nature, that were utterly close to expressions deriving from the whole debate of the booksellers in the eighteenth century, and notably the idea that the most “sacred” property – here again used in the Lockean perspective of having “a Property in his own Person” – originated in the author’s own personal labour or even genius.[xx] Indeed, Hell claimed that “[j]ustice commands it because of all kinds of property the first is that which one has in one’s thoughts”, a property which “is inherent in the author to such an extent that without him it would not exist”.[xxi] In fact, in 1793, at least pertaining to this typical and emphatic syntax, Baudin, followed by Lakanal in his report on the 1793 Literary and Artistic Act, will carefully rely on the same hierarchy between properties.[xxii]
But because of the specific nature of its subject matter, literary property was seemingly defenceless. Although François Hell did not venture on any discussion on its incorporeal nature (but could it really be otherwise ?), he emphasized the fact that consequences of publication should not be misunderstood. If the author (and his bookseller) decides to “associate” the public with his property, and in particular all the “beauties” the work contains, as Le Chapelier had put it in his famous report a few month before, this transfer does not imply that its “material” element ought to be left free to invasion.[xxiii] Hell indeed endeavoured to distinguish the “spiritual” part of literary property, diffusing a “light” which, “like the rays of the sun”, “becomes the property of all” as soon as this association is made possible by means of publication, from the “material part”, which “ought to be preserved for the author” and his family.[xxiv] Although drastically reduced in duration in the 1793 act, Lakanal would again use a similar rhetoric in his own report on the goal to be achieved by exclusivity, summarizing adroitly the views of his predecessors : “Since printing is the only means whereby the author may make useful exercise of his property, the fact of being printed alone cannot make an author’s works public property, at least not in the way that the literary buccaneers understand; for if it were so, it follows that the author would be unable to make use of his property without losing it in the same moment.” [xxv]
This persistent claim of a property that “precedes all laws”, but which simultaneously absolutely requires it, had to be therefore discussed in relation to the means to secure it. All “laws”, which a fortiori, in Hell projet, encompassed more generally privileges themselves. Although being, as a “lex privata”, normal manifestations of the royal sovereignty of the Ancien Régime, they had been again essentially since Louis d’Héricourt subjected to numerous attempts to redefine them as “authentic approvals” or authorizations, that is, in relation to the book trade, acts essentially meant to secure a pre-existent (natural) right.[xxvi] Therefore, now that privileges were being formally suppressed, it could not imply that literary property would be also curtailed by this historical evolution. The contrary would simply conflate the means with the ends, although Hell, in this perspective, readily admitted that privileges essentially generated illegitimate monopolies.[xxvii] In the literary field however, “[p]roperties secured under the name of a privilege” had to be “maintained & respected.” [xxviii] In fact, the report echoed in a way, as to the specific nature of a privilège en librairie, a conception which had also been finally retained by the 1777 decree on its duration, and the principle that the royal favour, far from being a further traditional tool of an absolutist police state, was one, the preamble stated, “which is founded in justice.” [xxix] However, François Hell, although certainly well aware of this last crucial royal legislation, did not rely on it in his report.[xxx] Indeed, even if the king in 1777 clearly supported a perpetual protection of the author’s “propriété de droit”, the new regulations did not secure in practice its full contractual effects, which resulted in severe criticism of its inner logic, by the trade and also by lawyers.[xxxi]
In short, the projet had to secure literary property on two levels : the first, to convert fully into “properties” the privileges now on the verge to be definitely suppressed by the Révolution and the September 1791 Constitution.[xxxii] Article III thus proposed explicitly to confirm this principle for “all literary properties secured by a tutelary act [acte tutélaire] (formally named privilege).” [xxxiii] Secondly, since privileges had been ultimately unable to enforce what the “justice commands”, the “droit d’auteur” would now have to be secured by law, sole legitimate legal means, in an absolute unlimited way, in particular in relation to duration and contractual effects: article I indeed mentioned the property of authors and this heirs or assignees that had to be fully and entirely enjoyed.[xxxiv] To make this perpetual exclusivity coherent with the previous and very recently passed Dramatic Act (January 1791), which set the author’s rights only 5 years post mortem auctoris, Hell tried to explain this drastic limitation of playwright property by “the double revenue [accruing] from publication & performance.” [xxxv] Although Article IV correlated the full protection of the law to the identification of the manuscript, an enjoyment of property without any limit in duration was confirmed by article V, which simply specified that all new editions had to bear the “consent in writing of the author, his cessionary, heirs or assignee.” [xxxvi] There was thus no rational, nor legal or political reasons, that such an absolute literary property, for every type of books, could be lessened by any Act devoted to protect it, considering its essential role, notably for the sake of public interest.
5. Unlimited property : for what purpose ?
Literary works, permanently protected, had been and would be useful for the whole Nation, all the more during the revolutionary period : the authors had helped, by their writings, to break the “despotism” and were still decisive for the “progression of enlightenment” and even the productions of the “industry” to strengthen the country against its potential opponents.[xxxvii] Among this collection of arguments in favour of the legislation, the last claim pertaining to the economic competition between France and its neighbours echoed the demonstration Stanilas de Boufflers had already introduced in his report and bill for the protection of inventions, which became law the 7 January 1791, but secured a limited right of property to inventors of machines.[xxxviii] Hell did not go into details on the specificities of these two productions of the mind, but seemed convinced that literary property would be similarly able to serve these vital interests within this tense international and political competition. Moreover, this assertion that perpetual literary property would be profitable to the general interest was not a new one. Héricourt, following a dynamic initiated at the end of the seventeenth century, had already developed the idea that an extensive duration for book trade privileges was, in addition to its natural right justification, stimulating authors and booksellers (“les animer au travail”) for the glory of the Realm and for “the benefit of his people.” [xxxix] Later, as to the effects of the monopolies stemming from full recognition of literary property, Diderot, for instance, while primarily defending authors and their capacity to fully negotiate their manuscript, also supported the fact that their transferees would probably not raise the prices of books : above the fact that booksellers still could claim non-mercantile goals, a small profit from a work rapidly sold remained anyway the only rational business path to earn a return on investment.[xl]
Interestingly enough however, among these justifications for securing perpetual literary property against “all violations”,[xli] one appeared to be more directly linked to the author’s most personal interests, such as his “honour”, in particular by preventing “counterfeiters” from “corrupting the purity & the literal sense of a work.” [xlii] Considering the nature of property rights, it was not clear however how the author would assure their protection after the transfer of his work. All seemed therefore to be grounded on a more symbolical and political meaning of property, as it expressed, in the deepest sense, and beyond its most obvious consequences as a droit réel, the “fullness of the right of its holder.” [xliii]Besides, grounded on the progressive idealization of property and the freedom it entailed during the Enlightenment, the demonstration was not new. Diderot, for example, in his letter on the book trade, seemed also to believe that “since honour is the most valuable portion of the benefits an author receives”, a perpetual right, associated to contractual freedom, would be an efficient means to secure these particular interests in the publishing process.[xliv] And Lord Mansfield, in Millar v. Taylor, relied himself on an unlimited literary property at common law, “after the Author has published”, to assure him some “Control over the Correctness of his own Work.” [xlv]
Literary productions that had accordingly to be secured under François Hell projet could be of any kind, as suggested by the title itself : literary but also “scientific” productions, in addition to newspapers works. Concerning the later, the question was obviously sensible in the context of the revolutionary unprecedented eruption of the periodic press as soon as 1788, and Article II was immediately devoted to the question.[xlvi] Article I stated that all literary or scientific productions, original works or translations could be in principle protected.[xlvii] Before thinking per se the object of literary property, this broad spectrum was certainly in the continuity with the book trade privileges ancient practises, which had always been granted for any genre of literature as soon as labour and financial expenses were concerned in the editorial process and that the published work was to be to the benefit of the kingdom.[xlviii] The 1793 Act will itself confirm just laconically that “[a]uthors of writings of any kind” shall be protected.[xlix] In addition to the principle, in relation to common “knowledge” ("les connaissances") and the best diffusion of learning, Hell attempted to assess criteria that would legally qualify these writings supporting this purpose, by requiring that they should be “in a new form or in a new order” or, at least, that they would constitute an “improvement”.[l] The notion of knowledge or “actual” knowledge [connaissances déjà acquises] and the convoluted formulation makes it difficult to be certain of the type of work involved, but soon, the Court of Cassation, in application to the 1793 Act, would inevitably have to deal, for instance, with compilations or anthologies.[li] This requirement, between labour expected in the literary process and a more “utilitarian” purpose, even at the risk of elaborating dedicated provisions to promote such a goal, illustrates again how these motives could appear to be intertwined. But more generally, these indecisive formulations were also representative of the long maturation that had yet to come during the nineteenth century on the definition of a literary work.[lii]
The sanctions against counterfeiting had been probably conceived to be proportionate to these goals, and to the intrinsic vulnerability of the object of literary property, with offenders being treated as thieves, who would even ran the risk of being subjected, in Article VI, to additional public punishment.[liii] François Hell projet could thus appear at last to be fully caricatural : originally requested by members of the trade, claiming for a perpetual exclusivity that seemed to be already, at the time, a lost cause, in addition to this radical severity against counterfeiters. As C. Hesse, who focuses largely on the first attempt of January 1790 to demonstrate a strong, not to say dominant, utilitarian current during the Révolution, puts it : “Nothing could have been further from the views presented a year earlier by Sieyes and Condorcet.”[liv] Besides, Le Chapelier had already succeeded in limiting Dramatic property, as well as would do the 1793 legislation, at a time of the Révolution property rights were also more and more characterized as a social fact. Still, the Hell projet illustrated tensions that had obviously not been solved yet. For that matter, during the parliamentary initiatives between 1839 and 1841 to reform the revolutionary legislation and the 1793 Act, Portalis or Lamartine, supposedly more independent of the trade than François Hell had been said to be, would defend emphatically a substantial extension of duration. Lamartine, especially, would be promptly suspected by Renouard that the proposed increase to 50 years after author’s death was an inacceptable further step towards perpetual literary property, and, among other motives of defiance, the trade monopolies it would inevitably secure.[lv]
Chartier, R. and Martin H.-J. (eds), Histoire de l'édition française, Le livre triomphant, 1660-1830, 4 vols. (Paris : PROMODIS, 1984-1986)
Hesse C., “Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, 1777–1793” (1990) 30 Representations 109-137
Patault A.-M., Introduction historique au droit des biens (PUF Droit fondamental 1989)
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 (OpenBook Publishers 2010)
* My sincere thanks to Dr Elena Cooper for her precious editorial assistance on this commentary.
[i] Respectively, for these two famous revolutionary laws, the “Décret” of the Baron d’Allarde (2-17 March 1791), and the “Loi Le Chapelier” (14-17 June 1791). Amazingly, this legislation was in fact implementing articles 1 and 14 of the Turgot’s (Louis XVI’s Contrôleur général des Finances) reform “portant suppression des jurandes et communautés de commerce, arts et metiers” in February-March, which, ultimately, was not upheld by the king and his new “cabinet” : on this, see the commentary on the August 1777 last royal legislation for the printing trade : Arrest du Conseil d'Etat du Roi, Portant Règlement sur la durée des Priviléges en Librairie. Du 30 août 1777. The 3 September 1791 Constitution also “irrevocably” stated : “Il n'y a plus ni jurandes, ni corporations de professions, arts et métiers.”
[ii] Royal privileges were in principle suppressed the 4th of August 1789. This would be also confirmed by the 3 September 1791 Constitution (preamble) : “Il n'y a plus, pour aucune partie de la Nation, ni pour aucun individu, aucun privilège, ni exception au droit commun de tous les Français.” For privileges that were delivered after the August 1789, see A.-C. Renouard, Traité des droits d'auteur dans la littérature, les sciences et les Beaux-Arts, 2 vols. (Paris: Jules Renouard & Cie, Libraires, 1838-1839), 1:192-93, who mentions a book trade privilege granted for 10 years and registered – the last one it seems – by the Chambre syndicale of the Parisian corporation at the end of July 1790.
[iii] For a full account of the Sieyès projet de loi contre les délits qui peuvent se commettre par la voie de l’impression, see f_1790, knowing also that the dramatic authors’ property Act, supported by Le Chapelier, had been passed in January 1791 (Rapport fait par M. Le Chapelier, Au nom du Comité de Constitution… and which led to the Dramatic Act of 13–19 January 1791– see f_1791 –).
[iv] See F. Gerbaud & C. Schmidt eds, Procès-verbaux des Comités d’agriculture et de commerce de la Constituante, de la Législative et de la Convention, 4 vols. (Paris : Imprimerie Nationale, 1906), 1 : 518-19.
[v] Ibid. : “Mémoire imprimé à l’Assemblée nationale en présence des citoyens de la République des lettres pour le corps des libraires et imprimeurs de l’Université. Ils font voir par ce mémoire que la liberté de la presse est dégénérée en licence. Ils proposent de mettre sous les yeux du Comité de constitution le Code de l’imprimerie rédigé par le grand Daguesseau. Ce mémoire, numéroté 1419, a été remis à M. Meynier, qui, après en avoir pris connaissance et l’avoir communiqué au Comité, a conclu à ce qu’il fût renvoyé au Comité de constitution.”
[vi] C. Hesse, “Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, 1777–1793” (1990) 30 Representations 109, who asks : “How could a revolution that had declared property a natural and inalienable right now take steps to limit that right ?”, 122.
[vii] There was, of course, no mention of any right from the author’s own labour, and in this perspective, this piece of legislation is obviously not comparable to the Statute of Anne. For more details on this Règlement pour la librairie et l’imprimerie de Paris du 28 février 1723, see f_1723 (f_1744), with its commentary. This right for authors to sell their own books will be granted in the August 1777 regulations (see n 1).
[viii] It is also interesting to note that all the booksellers did not share the same appetite for long duration privileges at the time of the Revolution. Some – the most famous example being probably Charles-Joseph Panckoucke – had indeed already organised their trade since the 1777 regulations on limited rights. See notably on this question H.-J. Martin, “A la veille de la Révolution: crise et réorganisation de la librairie”, in Histoire de l'édition française, Le livre triomphant, 1660-1830, 4 vols., ed. by Roger Chartier and Henri-Jean Martin, (Paris : PROMODIS, 1984-1986), 2: 517-25.
[ix] Procès-verbaux, 1 : 756 : “M. le Garde des Sceaux expose, dans cette lettre, qu’il n’est guère possible de douter que la protection vigilante et active que le Gouvernement a toujours accordée à la propriété des auteurs et de leurs cessionnaires a été une des principales causes qui ont plus fait fleurir les lettres en France que chez les autres peuples modernes…” The letter is dated 9 January, and was submitted before the Committee the 12.
[xi] Procès-verbaux, 2 : 255-56 : “Le même a fait rapport de l’adresse des Sieurs Jean-Marie Bruyset, Pierre-Marie Bruyset et fils, imprimeurs de Lyon, tendant à obtenir une loi qui assure aux auteurs la propriété de leurs ouvrages et en défende les contrefaçons sous des peines assez fortes pour réprimer l’avidité des contrefacteurs. Il a dit que cette loi est d’autant plus urgente que dans ce moment on contrefait le dictionnaire de M. Valmont de Bomare en 15 volumes, dont l’édition n’a paru que depuis quinze jours et qui a coûté 500000 livres, dont la perte réduirait à la mendicité l’auteur et les imprimeurs”. This request followed a new letter on the matter, the day before, from the Keeper of the Seals (Ministre de la Justice). C. Hesse, 123, has translated a part of this procès-verbal before the Committee. In relation to “une loi qui assure aux auteurs la propriété de leurs ouvrages”, she uses “to assure” (“a law that will assure authors the property in their work”). Lakanal, in his report for the 19-24 July 1793 Act, will also use the verb “assurer” (for this property, “assurer son libre exercice par une loi positive”), which has rather been translated, with Andrew Counter, by “secure” (“and to secure its free exercise by a positive law”, see f_1793). In any case, which is confirmed by Hell’s final report, the idea is to protect the exercise of a natural right.
[xii] Ibid., 2 : 256. Another 1791 edition from the Bruyset brothers was available in 8 volumes in-4° (the version mentioned by Hell at the beginning of his report, and offered to the members of the Committee). Notably from the first, shorter edition (5 volumes in-8°) edition of his dictionary, in 1764, Jacques-Christophe Valmont de Bomare (1731-1807), has work to “popularize” natural history.
[xiv] Hell (f_1791), 4. Usually, contractual relationship between booksellers (or printers) were reduced to a lump sum of money for authors in return to the transfer of their original manuscripts. On this subject, see, for example, the Sieur d'Anville's contract (f_1759), and also more generally, for the modern period, A. Viala, Naissance de l’écrivain. Sociologie de la littérature à l'âge classique (Paris: Les Éditions de Minuit, 1985).
[xv] Procès-verbaux, 2 : 256 : “Il a conclu à ce que le Comité nommât des commissaires pour rédiger le projet de cette loi pour le présenter à l’Assemblée nationale le plus promptement possible. Le Comité, après avoir entendu la lecture de ladite adresse et de la lettre du Ministre de la justice du 22 de ce mois, a nommé M. Meynier, son président, et M. Hell pour concerter ce projet de loi avec le Comité de constitution”. See also Hell, 4.
[xvi] See Hesse, 123, who thinks the report have been printed “sometime in the summer 1791”.
[xvii] We have searched in particular for such an evidence in Le Moniteur Universel (where the parliamentary debates were officially recorded), in particular the very last days of the Constituante (28, 29, 30 September 1791), and did not find any mention of Hell’s propositions. C. Hesse, who has scrupulously examined the main sources available, also did not find any evidence that the Projet reached the floor of the National Assembly (125).
[xix] Hell, 5 and in Article VIII, 13, alternatively with “droit de propriété littéraire” (Article IX), but it appears that “droit d’auteur” is exceptional here, or at least one of the first times it is thus used. For the Sieyès projet, see f_1790, with commentary.
[xx] Hell, 4 : “… si les propriétés du génie, sont, de toutes les propriétés, les plus sacrées…”. For a reminder, Louis d’Héricourt, in 1725, wrote : “[A] Manuscript [the literary work here, product of the author’s labour], in so far as it is not inimical to Religion, the Laws of the State, and the interests of private Individuals, is so much the property of its Author [est en la personne de l’Auteur un bien qui lui est tellement propre], that it is no more permissible to deprive him of it than it is to deprive him of money, goods, or even land…” (Mémoire de Louis d'Héricourt à Monseigneur le Garde des Sceaux (f_1725), 2–3.
[xxi] Hell, 5–6, who also specified that these properties are above more “conventional” properties, since they are essentially, autonomously, relying on “the spirit & the Genius”, seen as “gifts of nature”.
[xxii] See the Décret de la Convention Nationale du dix-neuf juillet 1793 relatif aux droits de propriété des Auteurs d'écrits en tout genre… (with the report of Lakanal), f_1793.
[xxiii] Rapport fait par M. Le Chapelier, 16 (and also 18, where Le Chapelier expressed his concern that literary property should not be subjected to “the maneuvers of those who have an interest in overpowering [envahir] it” ). This report have been thoroughly analysed, also to demonstrate an “utilitarian” current in the Revolutionary legislation pertaining to the protection of literary work and that this “most sacred” property claimed by Le Chapelier referred essentially to unpublished works. This question is discussed under Le Chapelier and Sieyès reports (f_1791).
[xxiv] ibid 6: “La partie matérielle au contraire est la véritable propriété qu’on doit conserver à l’auteur…”. The “spiritual” part of literary property and the idea of a light, emanating from creation, can be found again in some more contemporaneous reflections, in particular with Marcel Plaisant, who spoke of a « ray » of light : “Le véritable domaine de la création est insaisissable ; il fuse de l’intelligence comme un rai de lumière” (Marcel Plaisant, La création artistique & littéraire et le droit (Paris : Rousseau & Cie. Eds, 1920), 42).
[xxv] Lakanal report (f_1793).
[xxvi] See Louis d’Héricourt’s memorandum (f_1725), knowing that this tendency to re-interpret royal privileges in the light of modern property rights began even earlier : see in particular in the years 1690-95 the Mémoire sur la contestation qui est entre les libraires de Paris et ceux de Lyon… (f_1690).
[xxvii] Hell, 7-8 : “The Ancien Régime named the act by which the government intended to secure [garantir] literary property rights, a privilège en librairie. A privilege! What an enormous abuse of words! what an even greater abuse of power!”
[xxix] The expression, “grâce fondée en Justice”, is indeed directly taken from the preamble of the abovementioned 1777 royal decree (see f_1777). The questionable perception of the (last) book trade royal regulations simply as an emanation of “absolutist police state” is from C. Hesse (see notably 113), and had been usefully criticized by L. Pfister, “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 (OpenBook Publishers 2010) 133 (within a paragraph interestingly untitled “The Compatibility of Property and Privilege). We discuss this question under the 1777 Decree.
[xxx] In fact, for the same period, Hell seemed even – unfortunately not explicitly enough – to be aware of the limitations imposed in copyright duration by the Donaldson v. Beckett in 1774 : “L’exemple des Anglois ne peut pas contre-balancer l’éternelle justice” (Hell, 4 - n I).
[xxxi] In addition to the 1777 regulations, see in particular the “Commentary on Linguet's opinion on the Decree of 30 August 1777” (f_1777).
[xxxiv] Ibid., 10 : “La loi leur en garantit la pleine et entière jouissance…”
[xxxv] Ibid., 4 (n I). See the Rapport fait par M. Le Chapelier (f_1791, and in particular Article II).
[xxxvi] Ibid., 12. Article IV indeed required the signature of the author on the “manuscript” to be printed, as “a public token” of the right being secured. Such formalities, in addition to the requirement of article XI (15) – that on every book, as a confirmation of the “privilege” securing this full enjoyment, should bear the text of the new legislation – are certainly another testimony of a (wavering) political transition, with the difficulties to fully apply the liberal principles adopted in August 1789, notably the Article 11 of the Declaration of rights pertaining to freedom of press and expression. The 1793 Act will also specify some formalities, that have been thoroughly analysed, notably by Jane Ginsburg (in “A Tale of two Copyrights: Literary Property in Revolutionary France and America” (1990) 64 Tul L R 991), in relation to their compatibility with “natural” rights claims. We discuss this point under these last revolutionary legislation (see f_1793).
[xxxviii] See the Rapport de M. de Boufflers, au nom du comité d'agriculture et de commerce, relatif aux encouragements et aux privilèges à accorder aux inventeurs de machines et de découvertes industrielles (f_1790), in which industrial property seemed to be largely determined by its efficiency in this competitive environment. The property qualification for inventions would be even temporarily disqualified with the law of 5 July 1844.
[xxxix] Louis d’Héricourt’s Memorandum, 4: “…une justice qu’il leur rend pour les animer au travail pour la gloire de son Royaume, & l’utilité de son Peuple”See also the 1690s memorandum for the Parisian booksellers, and its commentary (f_1690s). Obviously, this idea of a secondary virtue individual property (and the individual freedom linked to it) would positively have for the whole community, in its effects and in particular by contractual means, was again notably stemming from Lockean grounds.
[xl] Diderot, Lettre historique et politique adressée à un magistrat sur le commerce de la librairie (f_1763) 30. On the contrary, the effects of concurrence would have a negative impact on the quality of the publication.
[xli] Hell, 4 : “…toutes les atteintes”.
[xliii] A.-M. Patault, Introduction historique au droit des biens (PUF Droit fondamental 1989) 235–37 – “…la plenitude du droit du titulaire” (236) – who also spoke of the “affective” dimension of the right of property during the revolutionary period.
[xlv] Millar v. Taylor (1769) 4 Burr. 2398.
[xlvi] Hell, 11. See also J.-P. Bertaud, “Histoire de la presse et ReÌÂvolution” in Annales historiques de la ReÌÂvolution francÌ§aise, n°285, 1991, 281-98 and more generally R. Chartier, Les origines culturelles de la Révolution française (Paris : Le Seuil, 1990).
[xlviii] Requirements which were explicit since the first privileges were granted : see notably the book trade privileges granted to Eloy d’Amerval in 1507 and Galliot du Pré in 1515 (f_1507 and f_1515).
[xlix] 19-24 July 1793 Act article 1(f_1793).
[l] Hell, 11 (article I). The novelty criterion is also used for newspapers productions, Hell explaining in the report that what belongs to “the first” writer is primarily his “invention” (9).
[li] On this question, see notably the commentary on the Cour de Cassation on compilations in 1814 (f_1814) pertaining to the implementation of Article 1 of the law of 1793.
[lii] With, behind the words themselves (novelty, later originality…), a path to be eventually chosen and upheld between an objective or a more subjective threshold of protection.
[liii] Hell, 12-13. See also 10, at the end of the report : “… that these laws have to be all the more severe against counterfeiters, given that counterfeit is a type of theft made all the more dangerous by there being so many more ways of escaping punishment…”
[lv] See notably, in Le Moniteur Universel 1841 (f_1841), Lamartine report (634 ff.) and in particular the intervention of Renouard (716 ff.), f_1841.