Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: f_1857

Commentary on the Court of Cassation's decision of 13 February 1857, on originality

Frédéric Rideau

Faculty of Law, University of Poitiers, France

Please cite as:
Rideau, F. (2008) ‘Commentary on the Court of Cassation on originality (1857)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 

1. Full title

2. Abstract

3. The emergence of a new criteria ?

4. Originality and novelty

5. A strong subjective evolution in the definition of the work (l'œuvre)?

6. References

1. Full title

Fontana v. public attorney, Court of Cassation. 13 February 1857.

2. Abstract

During the nineteenth-century the judicial system had to apply the very general (and short) revolutionary 1793 statute on literary and artistic property. Apart from the preamble, which implied that a remarkable new type of property was now being secured by the law, the seven articles of this act said nothing specific about the object of this property, except to confirm that writings of any kind, as well as productions of the mind and of genius, would be protected. In deciding whether a work qualified for protection against counterfeiting, in view of the difficulties involved in its definition, numerous criteria were employed by the judges. Originality was only rarely used as a criterion, and in any case not really before the 1860s.  On the whole, this rather elusive notion tended to be discussed in philosophical and literary contexts, especially in certain debates on aesthetics from the 1740s onwards. However, the case discussed here represents probably one of the first applications of what could be seen as the application of a more subjective criterion, i.e. suggesting a "subjective" shift in French jurisprudence as far as the definition of literary and artistic works was concerned, and which will be defined later by a more permanent use of the word "originality", that is from 1890 onwards and along with the emergence of moral rights from 1902.

3. The emergence of originality as a criterion: the Court of Cassation system

Throughout the nineteenth century decisions applying the law of 1793 that made explicit use of the term ‘originality' were very rare. O. Laligant, who regards the quality of originality as "an invention of the twentieth century", finds six judicial occurrences of the term in copyright cases between 1793 and 1883.[1] It is true that, beyond the use of this exact term, certain "paraphrases" (périphrases) still testify to the appearance of "the notion and condition of originality", that is, of a more subjective condition or requirement for protection.[2] Indeed, alongside the term ‘originality', jurists employed the word ‘special' in some instances, in the case of artistic compilations for example. These works, entitled to protection under the terms of the 1793 law, are, according to Pouillet, like literary compilations, and "while not containing anything new in terms of their content, constitute a genuine creation in their whole, in their selection, and finally in their arrangement". Furthermore, authors might draw on common sources to produce comparable works, which were nevertheless their property: "each shall retain ownership of his work, his personal conception, his execution".[3]

In this Fontana case of 1857, the Court of Cassation found that "however well-known the features of a common type [statuettes in this instance - FR] may be, and in spite of the fact that tradition requires any copy to respect those features, this indispensable fidelity still leaves space for the talent of the artist, allowing him to create a work that bears a special character, and which becomes as such a property protected by law".[4] This formulation has been rightly understood as establishing a clear opposition between the "banality of the subject" and the "originality of the work".[5] It should be noted, however, that in the opinion (attendu) that follows, the high court stipulated that in order for the statuettes to be declared impossible to counterfeit, "it must be expressly recognised that, in their execution, there was nothing proper to the author", as in the formulation of the Court of Cassation in 1814 (see f_1814a) (in this instance, no such assessment was carried out by the lower Imperial Court of Paris).[6] 

Later, the Court of Cassation decision of 1869 (f_1869) would represent one of the first uses of the terme 'originality' itself, still in the problematical field of compilations, here dealing with a navy list.[7] The judges indeed confirmed that compilations, along certain works that might be "entirely original", deserved protection under the 1793 legislation. However, originality was mainly used to signify that some works did not borrow directly any elements from the public domain, in a way that they were completly "new" from the author's mind. in fact, the use of novelty still constituted for the judges a very useful criterion, bringing a good evidence that, within the work, could be distinguished conceptions that are foreign to the author and "conceptions that are proper to him" (see f_1814a), that is with a "special character", if linked to the Fontana decision.[9] Some tradition criteria were indeed naturally used in this decision to confirm that compilations, although not being entirely original creations, should be protected : dicernment, intelligence in condensation, and excisions, the arrangement of the whole again "in a new order". 

Nervertheless, until the end of the nineteenth century, criteria supposed to imply a more subjective concept of originality, as opposed to the mere use of "novelty", would thus still merged in whad could seem to be an enigmatic mix in defining the object of literary and artistic property.

4. Originality and novelty

The Court of Cassation's ruling of 2 December, 1814 (f_1814a), is often perceived as having set, at least for the first half of the nineteenth century, an objective criterion for the definition of the literary work - that of novelty. This criterion, used in the field of patents, would in practice guide judges to focus in particular on the result obtained in the work whose protection was being requested against counterfeiting. In terms of a more subjective approach, for which the originality concept is often used as an illustration, the emphasis shifts to the bond between the work and its author.

Today, ‘originality' is typically understood subjectively, over and against the more objective notion of novelty. Indeed, as A. and H.-J. Lucas note, "anteriority (antériorité), which in the vocabulary of industrial property is said to ‘destroy' novelty, does not necessarily exclude originality".[10] In other words, anteriority is of less importance when what counts above all in identifying a genuine work is the extent to which it may be seen as bearing the mark or imprint of its creator's personality.[11] This last expression, which was already in use in the nineteenth century, as we will see, could therefore imply a degree of subjectivity potentially higher than for a work simply realized independently, that is in the sense that it was not copied from another work.[12] The principle remains today in copyright litigations, and the Court of Cassation, in its recent decisions, has formally recalled that only originality of a work is required, "regardless of the notion of anteriority, which is inapplicable in the context of the application of the law of literary and artistic property".[13]

Nevertheless, the judicial emergence of such criteria as the notions of ‘special character' and ‘originality', which were supposed to reflect a more subjective path in the definition of the work, did not preclude, at least during the second half of the nineteenth century, the explicit, and sometimes concomitant, use of ‘novelty'. In fact, such an association was frequent in the wording of the judges' decisions, such as the Court of Cassation's ruling of 1869,[14] and likewise in the dominant doctrine [scholars and commentators] of the time. Thus Pouillet, when analyzing the difficult application of these criteria to creations of a more modest kind, was able to observe that, as far as the compilations that made up almanacs or annuals were concerned, contradictions were rife in the jurisprudence, with "one magistrate finding in a work the qualities of originality and individuality necessary to create a right of authorship, which another magistrate is unable to find". But rather than define originality, he associated it, just as the judges did, with novelty: referring again to those "productions of the mind" whose personal character is ambiguous and difficult to pin down, such as additions or supplements, the essential point was that they "display that quality of originality, of novelty, on which the law itself is based".[15] Couhin, another famous lawyer, as late as 1898 and still discussing the question of compilations, did not invoke originality, but continued to rely principally on the fundamental judgment of 1814. In his opinion, furthermore, that judgment had provided a criterion which was "applicable not only to written texts, but to all kinds of production". Indeed, considering the creative process from a more general perspective, he concluded that "almost always, if not actually always, a new production is composed of elements that are drawn from outside the author, and elements that are proper to him. It is the latter that give the work as a whole the quality of novelty, and that ensure it is covered by an exclusive right of exploitation. As for the elements that the author has drawn from common sources - and also for the subject of the work - anyone is free to associate these with other original conceptions, and thus to obtain in turn other new productions".[16]

In reality, the concept of originality as such - standing alongside that of novelty, sometimes synonymously reinforcing this older criterion, sometimes used more autonomously - was simply poorly defined, or not defined at all, both by the judges and in legal doctrine. Even in the final edition of his own work, republished in 1908, in the wake of the recognition of authorial moral prerogatives by the Court of Cassation in 1902 (see f_1902), Pouillet did not question the appearance of this term in jurisprudence, as it had always been natural.[17]

Originality was in fact even more difficult to pin down when taken alongside the necessity to discount any consideration of a work's merit: it could not be measured in terms of the degree of creativity with regard to the nature of its purpose or object, which might or might not be aesthetic. As a juridical specificity, this rule actually stemmed from the jurisprudential application of the 1793 law, and was already entirely accepted by nineteenth-century doctrine: "the law does not judge works; it takes into account neither their merit nor their importance", as Pouillet had already put it.[18] Thus the work was required to be proper to its author, new and/or original, without being so qualified on the strength of its "intrinsic value".[19] This difficulty had presented itself very clearly at the time with regard to the question of the protection of photographs. This very particular form of creation had been susceptible of a very obvious subjective criterion, the famous notion of "imprint of personality", which was used  by the judges instead of originality (see f_1862). However, this use cannot be exclusively demonstrated by the particular subject matter which was then being debated, as the expression had already been invoked by the judges of the Court of Appeal of Bordeaux, for literary works - press articles - which had a priori no apparent aesthetic or "emotive" purpose (see f_1861). Again, Pouillet insisted and was rather clear about this principle, even where the criterion of imprint of personality was concerned: 

"The right of the author, whatever it may be, is necessarily restricted to the particular expression, the form, the developments that the author has given to his thought. Similarly, the philosopher who devises a new system, the scientist who invents a new method, the journalist who is the first to give his readers a particular piece of information, may not prevent those who follow them from reproducing the same system or method, or from providing the same information; their right does not extend beyond the particular form that they have employed, which is what we might call the mark of their personality".[20]  

With regard to these attempts to define or rationalize the criteria which qualified literary or artistic works for protection, several decades would in fact have to pass before the appearance of Desbois's notable treatise of 1950, which was probably the first to "describe the notion [of originality] in a systematic way".[21] And even today, the standard subjective definition notwithstanding, the ‘opposition' between novelty and originality lacks, "in practice, the clarity that is imputed to it". Referring to translations, for instance, Desbois has even been able to speak of "subjective novelty".[22]

Despite the difficulty of pinning down ‘originality', its appearance has still been understood as the result of a subjective turn in jurisprudence.

5. A strong subjective evolution in the definition of the work (l'œuvre)?

For some commentators, the appearance throughout the nineteenth century of the notion of originality, or of paraphrases suggesting that notion, "bears witness to a shift from the requirement of novelty, towards a more subjective condition".[23] On this count, novelty, the purely objective criterion of the law of patents, would thus yield, in its application, in favour of creations that were wholly or partly original, and which in any case, beyond the strict question of the degree of creativity, could bear the imprint of their author's personality. As we have seen, the simple absence of copy was not therefore supposed to be a sufficient result, even if the copy was new in some way, to decide whether or not the work qualified for protection under the 1793 legislation.

This progressive increase in the use of originality as a criterion by jurists has been explained by reference to several phenomena. Firstly, parliamentary debates in France from the end of the 1830s reveal - as in England at the same time where Talfourd's bills met with great opposition from the bookseller's lobby (see the commentary on uk_1842) - a continuing and strong opposition against any potential monopolies claimed under the name of literary (and artistic) property. Attacks were indeed formulated in very sharp terms against the supporters of such a right and, in particular, against the legislative attempts to extend its duration. Defending the latter, the poet and deputy of the National Assembly Lamartine had to face the following rejoinder from the jurist Renouard: "Without the Bible and Homer, without Racine and Chateaubriand, would we have M. de Lamartine?"[24] In his intervention Renouard was in fact denying the juridical qualification of artistic and literary property but also ultimately the reality, without mentioning it, of any true originality which could arise from the labour of a single author. In other words, any claim of true sovereignty by the author over his work was illusory. Of course, the main discussions on the nature of copyright concerned principally, as in England before the 1842 act, great authors and creations. Later, the assaults against literary monopolies would take the form of socialist-inspired protests, such as Proudhon's famous memorandum Les majorats littéraires (f_1862a). Facing these numerous critics from all sides, supporters of literary property naturally reacted by trying to radicalize its singularity, its particular character. Authors and their creations were thus presented in a relationship of an indivisible character, a special bond uniting the work and its creator. As Portalis put it in 1839, "what man derives from his own substance, what his intelligence produces, the revelations of his mind; are these external things that he has to take possession of (approprier)? No, even outside of him these things are still his own self: here it is a case not only of property by appropriation, as the philosophers would call it, but property by nature, by essence, by the indivisibility of object and subject".[25] These confrontations that arose after the revolutionary legislation, have thus been characterized in terms of a "personalization of literary property".[26] Ultimately, they may therefore have had some bearing on the evolution of the criterion used by judges, in particular, from the 1870s onwards.

More generally, there also seems to have been a renewal of artistic awareness at the beginning of the second half of the nineteenth century.[27] As O. Laligant points out, the necessary consequence of this was the belief that "the natural and fundamental purpose of the law of literary and artistic property is to protect works in the realm of letters and the fine arts, that is, works of an essentially aesthetic or ornamental character", or in a nutshell, works of "pure art".[28] In addition, the development of moral law, and in particular the "justified desire of the courts to improve the protection extended to the non-patrimonial interests of authors", may certainly have contributed to an understanding of the new originality condition in a more subjective sense. Indeed, the recognition of the moral interest of the author in his creation stemmed naturally from an awareness of the peculiar connection between the two. It is in the light of this that Dean Strömholm, in his history of moral rights, understood by "creation" something that was identifiable by an eminently personal element, that of an "I" (un "moi"), and argued that "the idea of this 'I' has an absolute intrinsic value, and the presence in a literary or artistic work of a modicum of personality is thus worth more than even the most consummate technical skill".[29] In this perspective the proliferation of judicial occurrences of originality could be explained by the recognition of moral rights by the Court of Cassation in 1902 (f_1902). The expansion of this concept indeed progressed in small increments from the end of the nineteenth century onwards, becoming more pronounced during the early twentieth century, until it came to dominate theoretical discourse after 1944.[30] Focusing on these evolutions, Laligant concludes that "from the twentieth century onwards the idea of moral rights and the idea that the work constitutes an emanation of the personality of its author both became, each year a little more, fashionable notions".[31]

These were therefore circumstantial and fashionable notions from the nineteenth or the twentieth century, which, moreover, do not seem to have modified judicial practice. Even as the criterion became more widespread in late nineteenth-century jurisprudence, works as diverse as annuals, almanacs, and purely utilitarian compilations continued to obtain judicial protection.[32] Already at the end of the 1830s, Renouard was asking what the true motives behind these judicial debates really were: the protection of that which was most precious to man, or mere conflicts arising from purely mercantile considerations? Indeed, in "artistic as in literary matters, there is no correlation between the number and the seriousness of judicial debates, and the importance of the productions in question. The flimsiest are often those that give rise to the greatest number of trials."[33] Similarly, at the end of his introductory history of literary and artistic property, Pouillet put it with some bitterness: 

"Never has the right of the author been surrounded with so much protection, and with so many guarantees; and yet one may say without being a pessimist that masterpieces have never been so rare. How could it be otherwise? Nowadays, we produce a great deal, we multiply our chances of success as a gambler might by betting on a wide spread of numbers. Who is to say that, in this crowd of hastily produced items, one will not be found which, good or bad, will happen to please the public? Alas, faith has been lost: we no longer believe in the Muse, and she has folded up her wings. Glory is but a poor rhyme, towards which few strive. We do not labour for glory. The concern of the man of letters as of the artist is, for the most part, to grow rich. And it is thus that the legislator, in carrying out an act of incontestable justice by protecting the most sacred of properties, has nevertheless inflicted upon the world of arts and letters an irreparable harm, for he has rendered that world fatally mercantile."[34]

In fact, even after the establishment of the typical definition of originality in the subjective sense by the legal doctrine of the twentieth century, Desbois still lamented the "wanderings" of the courts, which agreed to protect guidebooks or at-a-glance tables.[35]

The appearance of originality has thus had the paradoxical effect of casting a suspicion of anachronism upon that very subjective approach in the definition of the literary and artistic work.

The first uses of termes or syntams such as 'original', ‘originality', 'special character', as a supposed imprint of the author's personality within his creation, may perhaps have borne witness to a jurisprudential desire for a genuine turn towards a more subjective condition or threshold of protection. But, starting from the 1850s, the term itself, and its various paraphrases, remained rather inconclusive, originality itself, moreover, still being ambiguously linked, as we have seen, to novelty. Even more destabilizing was the fact that this latter criterion, which had arisen from the guidelines of the 1814 ruling, had not itself proved truly decisive, in the literary and artistic property field, as a pure objective requirement, following the procurateur Merlin's conclusions (see f_1814a). In reality, this evolution may have also reflected a continuous and deeper search for a criterion which was more appropriate for defining the traditionally held specificity of literary and artistic works. The 1793 act, indeed, offered no specific definition of "the productions of the mind or of genius", and it seems clear that judges soon found themselves confronted with principles that appeared contradictory, at least in the way they were to be applied: on the one hand, the protection by revolutionary laws of a "personal" and particular type of property, and on the other, the fundamental necessity of not excluding works based on their kind or genre. In practice indifference to genre and merit and the protection of investment have always favoured an "unavoidable objective approach",[36] despite there having been - and there still being even today - several occasional jurisprudential efforts to conceal the criterion of "mere absence of a copy".[37]

Of course, as for the subjective definition of the work, this was something that - even among jurists, ever since Louis d'Héricourt in 1725 (see f_1725b) - had some potential for further developments. Indeed, during the ‘battle of the booksellers', this perspective was intimately linked with the formation of fundamental concepts of literary and artistic property, such as the idea/form distinction. In particular, the technical and juridical comparison between authors and inventors had been crucial in juridical debates. To summarize, on one side of this confrontation, the famous lawyer of the provincial booksellers Gaultier (f_1776) in particular, and also Condorcet (f_1776a), both invoking public interest, demonstrated that the value of a literary work was to be found principally in the ideas, the form being ultimately an accessory. On the other side, for example, the lawyer Linguet (f_1777b), or the Abbé Pluquet (f_1778), upheld the distinction by defending the fact that, in contrast to inventions, the subject matter of literary property was only concerned with the form of ideas. The form given to the work was the result of a particular, personal, labour. As Linguet pointed out in 1774 and again in 1777, in contrast to inventions, "a literary work springs forth from the author's mind, as perfect as it can be; or at least, if it is susceptible of a few degrees of improvement, it can only receive them from its father's hand".  Linguet then concluded that, therefore, "the composition of a book, of any kind, is an act of genuine creation" and "a manuscript is part of the external substance which the writer produces".[38] However strikingly modern in its formulation in relation to the current subjective definition of originality which has prevailed in France, this juridical approach, which emphasized the specificity of literary creation, can also be seen as reflecting the ideology of romantic authorship and possessive individualism invoked by lawyers who were defending the interests of their clients (the Parisian booksellers in fact). Nevertheless, this inclination did not remain exclusively ideological, since the king legally recognized in 1777 (f_1777a) that a literary creation, whatever its genre, could in itself legitimately be the source of a perpetual literary property secured by privileges to the profit of the author.[39] In other words, to justify a perpetual protection, the author's labour was legally recognized as being of a specific nature while inventors, in contrast, were protected from 1762 onwards by common limited trade privileges. Similarly, this persistent subjective dimension probably also helps to understand the fermentation and the development of the moral prerogatives of authors. Not surprisingly, these prerogatives would have to be applied, in accordance with the general principles of the 1793 statute, to all kinds of protected works, with great practical consequences, while, in parallel, the subjective originality criterion remained in this perspective, as we have seen, very complicated to apply rationally.

6. References

Couhin, C., La propriété industrielle, artistique et littéraire, vol.2 (Paris: Librairie de la société du recueil général des lois et arrêts, 1898)

Desbois, H., Le Droit d'auteur en France, 3rd ed. (Paris: Dalloz, 1978)

Laligant, O., La Véritable condition d'application du droit d'auteur: originalité ou création ? (Aix-en-Provence: Presses Universitaires d'Aix-Marseille, 1999)

Lucas, A. and H.-J. Lucas, Traité de la propriété littéraire et artistique, 3rd ed. (Paris: Litec, 2006)

Pouillet, E., Traité théorique et pratique de la propriété littéraire et artistique et du droit de représentation, 2nd ed. (Paris: Imprimerie et librairie générale de jurisprudence, 1894)

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

Rideau, F., La formation du droit de la propriété littéraire en France et en Grande-Bretagne: une convergence oubliée (Aix/ Marseille: PUAM, 2004)

[1] O. Laligant, La Véritable condition d'application du droit d'auteur: originalité ou création ? (Aix-en-Provence : Presses Universitaires d'Aix-Marseille, 1999), 62-63.

[2] See L. Pfister, L'auteur, propriétaire de son œuvre ? La formation du droit d'auteur du XVIe siècle à la loi de 1957 (Strasbourg PhD thesis, 1999), 570.

[3] E. Pouillet, Traité théorique et pratique de la propriété littéraire et artistique et du droit de représentation, 2nd ed. (Paris: Imprimerie et librairie générale de jurisprudence, 1894),100-101. ["Chacun gardera la propriété de son travail, de sa conception personnelle, de son exécution"].

[4] Dalloz 1857.1.111 (f_1857),  ["Quelque connus que soient les traits d'un type commun, et quoique la tradition impose à toute copie la nécessité de les respecter, cette fidélité indispensable n'en laisse pas moins place au talent de l'artiste, lui permet de créer une œuvre marquée d'un caractère spécial, et qui devient, à ce titre, une propriété que la loi protége"], also cited by Pouillet, 101, and L. Pfister, 571, who also notes the use of the term 'special' by the Tribunal of the Seine, 12 August, 1852. In some decisions, the qualifier ‘certain' can be noted: see for instance a decision concerning a compilation, 17 August 1858 (Colmar), which noted the protection of compilations "on condition that they represent a certain conception of the mind, a genuine labour, a creation" ["à condition qu'elles dénotent une certaine conception de l'esprit, un labeur véritable, une création"] (cited in Pouillet, 48).

[5] L. Pfister, 571, who continues: "Despite the apparent fidelity to the subject, the artist may free himself, invest it with a personal character or mark it with the inprint of individuality, which it is the judge's task to evaluate" ["malgré l'apparente fidélité au sujet, l'artiste a pu s'en affranchir, l'investir d'une empreinte personnelle ou le marquer d'un cachet d'individualité qu'il appartient aux juges du fond d'apprécier"].

[6] Dalloz 1857.1.111 (f_1857). The formulation "proper to the author" recalls the same phrase used by the Court of Cassation, 2 December, 1814 (see f_ 1814a) ; in that instance, however, the Court then concluded in favour of the novelty of the work.

[7] Laligant, 138, also takes into account a judgment by the Criminal Chamber of the Court of Cassation, 22 November 1867, concerning a text on the so-called medal of Saint Benedict.

[8] Originality was in reality associated in English statutes on fine arts with novelty. Originality had been only mentioned as a sole criterion in the "radical" Fine Art Copyright Act of 1862. On this autonomous but ambiguous emergence, see Ronan Deazley's commentary in uk_1862. One should also recall that, in contrast to the United States, there were no decisive discussions on originality before the common law courts, in particular in the field of literary copyright.

[9] On this distinction, already made with some ambiguity by the procurateur Merlin in the case heard before the Court of Cassation on 2 December, 1814, see f_1814a. 

[10] A. Lucas and H.-J. Lucas, Traité de la propriété littéraire et artistique, 3rd ed. (Paris: Litec, 2006), 73.

[11] It is well known that the French system sets more store by originality in the subjective sense, that is, the supposition that it is possible to identify the personality of the author in the work, once again whatever its genre. Hence in artistic matters H. Desbois makes pedagogical use of the example of two painters capturing in their respective creations the same landscape: "In order for the work to become covered by a right of authorship, it is enough that it should be original, in the subjective sense of the word: there is no need for it to be new, in the objective sense. Consider two painters, who, without consulting one another, or promising mutual assistance, capture upon their canvasses, one after another, the same site, from the same angle, under the same light. The second of these landscapes is not new in the objective sense of the word, since, hypothetically, the same site provides the subject of the first. But the lack of novelty is no obstacle to the claim to originality: both painters have, after all, engaged alike in creative activity, treating the same subject independently of one another. It is unimportant that, assuming they belong to the same school, their respective canvasses offer such similarities that even the attentive eyes of trained experts run the risk of making an error of attribution; from the moment that works of art are covered by rights of authorship even where their subject is not imaginary, but rather borrowed from reality, these two canvasses will receive the same qualification, regardless of their respective qualities. Each constitutes an entirely original work of art, such that the artist who will have set up his easel in second place shall be exempt from the protestations of the first [...]" ["Il suffit, pour qu'une œuvre donne prise aux droits d'auteur, qu'elle soit originale, au sens subjectif du mot : point n'est besoin qu'elle soit nouvelle, au sens objectif. Voici deux peintres, qui, sans s'être concertés et se promettre un mutuel appui, fixent l'un après l'autre, sur leurs toiles, le même site, dans la même perspective et sous le même éclairage. Le second de ces paysages n'est pas nouveau au sens objectif du mot, puisque, par hypothèse, le premier a pour sujet le même site. Mais le défaut de nouveauté ne met pas obstacle à la constatation de l'originalité : les deux peintres, en effet, ont déployé une activité créatrice, l'un comme l'autre, en traitant, indépendamment l'un de l'autre, le même sujet. Peu importe que, s'ils appartiennent à la même école, leurs toiles respectives présentent des ressemblances telles que les regards attentifs d'experts exercés risquent de commettre une erreur d'attribution : dès lors que les œuvres d'art donnent prise aux droits d'auteur même si le sujet, au lieu d'être imaginaire, a été fidèlement emprunté au domaine des réalités, ces deux toiles recevront la même qualification, indépendamment de leurs qualités respectives. Elles constituent l'une et l'autre des œuvres absolument originales, si bien que celui des deux artistes, qui aura planté son chevalet le second, échappera aux remontrances du premier"]. H. Desbois, Le Droit d'auteur en France, 3rd ed. (Paris: Dalloz, 1978), 5. The principle is of course readily transferable to the domain of literature or letters, "since it seems unlikely that two authors, dealing with the same subject, should proceed to identical developments, unless they have consulted [...] or plagiarised each other: the similarity of inspiration will not go beyond the level of ideas, which as such circulate freely; the composition and the arrangement will vary according to individual reactions" ["car il est invraisemblable que deux écrivains, traitant le même sujet, aboutissent à des développements identiques, s'ils ne se sont pas concertés... ou pillés : la similitude d'inspiration n'aura pas dépassé le stade des idées, qui, comme telles, sont de libre parcours; composition et rédaction varieront au gré des réactions individuelles"] 5,6.

[12] As A. Lucas, 74, explains, even in the absence of a copy, it is still in principle necessary to establish the reality of the imprint of the author's personality - something that illustrates the specificity of the French system, which distinguishes between the concept of originality and the requirement of absence of copy, even if together with the latter the criteria of "skill and labour " and "sweat of the brow" are applied.

[13] Court of Cassation, 11 February,  1997, cited in Lucas, 73.

[14] Pfister, 572, illustrating this sort of cohabitation quotes the judgements of the Correctional Tribunal of Lyon, 17 January, 1870 (Dalloz 1870.2.209), which recalled that the work must present "a new and original character" ["un caractère nouveau et original"] ; or else the decision of the Tribunal of the Seine, 20 June, 1891, which refers to a "certain character of novelty and originality" ["certain caractère de nouveauté et d'originalité"].

[15] Pouillet, 63. At the same time, of course, legal doctrine continued to employ the criterion of novelty, without associating it with, or mentioning, originality.

[16] C. Couhin, La propriété industrielle, artistique et littéraire, vol.2 (Paris : Librairie de la société du recueil général des lois et arrêts, 1898), 380-381. ["Presque toujours, pour ne pas dire toujours, une production nouvelle se compose d'éléments étrangers à l'auteur et d'éléments qui lui sont propres. Ce sont ces derniers qui impriment à l'ensemble un caractère de nouveauté, et qui le rendent susceptible d'un droit exclusif d'exploitation. Quant aux éléments que l'auteur a puisé dans le fond commun - et aussi quand au sujet de l'ouvrage - chacun reste libre de les associer à des conceptions originales et d'obtenir ainsi, à son tour, d'autres productions nouvelles"].

[17] As far as the question of patents is concerned, novelty was often better defined. For example, for Couhin: "Novelty thus required is a mitigated novelty: absolute from a certain point of view, but purely relative from others. - Absolute in that it is to be supposed that the invention or discovery has not had, at any time and in any country, sufficient publicity to have been carried out. In this respect, the law makes no distinction of time or place. - Relative, on the other hand, in that there is no implication that the invention was completely unknown before this time [...]'. C. Couhin, 76.

[18] Pouillet, 38 ["La loi ne juge donc pas les œuvres; elle n'en pèse ni le mérite ni l'importance"]. On these debates on the (inevitable?) link between subjective originality, and merit, see also, for the United States, us_1903 (Bleistein v. Donaldson Lithographing Co.).

[19] Pouillet, 42, who clarifies: "public taste subsequently judges the merit of each, and soon classes writings that appear according to their true value" ["le goût public juge ensuite du mérite de chacun, et classe bientôt les écrits parus d'après leur véritable valeur"].

[20] Ibid., 42-3. Emphasis added. As we have just seen, this did not prevent the same commentator, who does not define originality, from relying on numerous occasions upon the ‘novelty' of various types of works.

[21] Lucas, 72. The authors go on to add that, if Desbois was the first to describe the notion, "he nevertheless fails to construct it precisely as an autonomous criterion, which explains why the word does not even appear in the alphabetical index of the first edition" ["encore ne l'érige-t-il pas nettement en critère autonome, ce qui explique que le mot ne figure même pas dans l'index alphabétique de cette première édition"].

[22] Ibid., 84.

[23] Pfister, 570.

[24] Le Moniteur Universel, 1841, 717 (f_1841) ["Sans la Bible et Homère, sans Racine et Chateaubriand, aurions-nous M. de Lamartine?"].

[25] Le Moniteur Universel, 1839, 774. See, also, for the traditional comparison with invention in Portalis's view Frédéric Rideau, La formation du droit de la propriété littéraire en France et en Grande-Bretagne: une convergence oubliée (Aix-Marseille: PUAM, 2004), 294 ["Ce que l'homme tire de sa propre substance, ce que son intelligence produit, les révélations de sa pensée sont-ce choses extérieures qu'il ait besoin de s'approprier ? Non, c'est encore lui, hors de lui : là, il n'y a pas seulement propriété par appropriation, comme disent les philosophes, mais propriété par nature, par essence, par indivision, par indivisibilité de l'objet et du sujet"].

[26] L. Pfister, 504, and 593 ff. for a presentation of these debates on the nature of property and its political implications.

[27] Laligant, 62. See also p. 65, for the impact of authors such as Baudelaire in the "radicalization" of literary originality.

[28] Ibid., 62-63.

[29] S. Strömholm, Le droit moral de l'auteur en droit allemand, français et scandinave, avec un aperçu de l'évolution internationale (Stockholm: P.A. Norstedt et Söner Förlag, 1966), 37, cited in Laligant, 63.

[30] Ibid., 62-3.

[31] Ibid., 63.

[32] There is little use in offering multiple examples here (in the case of the late nineteenth century, some are gathered in the commentary on f_1814a: instructions for a fire pump in 1886, for example, or pharmaceutical advertisements in 1889, were protected by exclusive rights. In 1885, the Court of Cassation once more confirmed the principle of the protection of any type of works, concerning a mere race-programme from the Auteuil Hippodrome: "The court considers that, even if it may not be established as an absolute principle that a race-programme cannot be considered a personal work, it must still be recognised that, under the circumstances, in declaring that Perreau had infringed no right of property which could be claimed by Champon, the Commercial Tribunal of Seine violated neither the rules nor the texts of the aforementioned laws'" (Court of Cassation, Chambre des requêtes, 14 January 1885, Pataille, 1890. 160. Reported by C. Couhin, 384. ["Attendu que, si l'on ne saurait jamais poser en principe absolu, qu'un programme de courses ne puisse jamais constituter une œuvre personelle, il y a lieu de reconnaître que, dans les circonstances de la cause, en déclarant que Perreau n'avait porté atteinte à aucun droit de propriété dont Champon pût se prévaloir à son encontre, le Tribunal de commerce de la Seine n'a violé, ni les règles, ni les textes des lois susvisées"].

[33] A.-C. Renouard, Traité des droite d'auteurs, dans la littérature, les sciences et les Beaux-Arts, vol.2 (Paris: Renouard, 1839),  81. ["Pour les arts, comme pour la littérature, ni le nombre ni la gravité des débats judiciaires, ne se mesurent sur l'importance des productions. Les plus chétives sont souvent celles qui engendrent le plus de procès"].

[34] Pouillet, 22-23. ["Jamais le droit d'auteur n'a été entouré de plus de protection, et de plus de garanties; et pourtant, sans passer pour un esprit chagrin, on peut dire que jamais les chefs-d'œuvre n'ont été plus rares. Comment en serait-il autrement? Maintenant on produit beaucoup, on multiplie ses chances de succès, comme le joueur multiplie ses chances de gain en pontant sur un grand nombre de numéros. Qui sait si, dans la foule des choses ainsi hâtivement produites, il ne s'en rencontrera pas une, bonne ou mauvaise, qui, par hasard, plaira au public? Hélas, la foi s'en est allée; nous ne croyons plus à la Muse, et elle a reployé ses ailes. La gloire n'est plus qu'une mauvaise rime, après laquelle on ne court guère. Ce n'est pas pour elle qu'on travaille. Le souci de l'homme de lettre comme de l'artiste est, le plus souvent, de s'enrichir. Et c'est ainsi que le législateur, en accomplissant une œuvre d'incontestable justice, en protégeant la plus sacrée des propriétés, a cependant fait aux lettres et aux arts, qu'il a rendu fatalement mercantiles, un mal peut-être inguérissable"]. In fact, the same bitterness appears to raise its head across the Channel, in Birell's Lectures of 1899 : "In reading the cases in the Reports for the last hundred years, you cannot overlook the literary insignificance of the contending volumes. The big authors and big books stand majestically on one side - the combatants are all small fry. The question of literary larceny is chiefly illustrated by disputes between book-makers and rival proprietors of works of reference, sea charts, Patteson's Roads, the antiquities of Magna Graecia, rival encyclopaedias, gazetteers, guide books, law reports, post office and trade directories, illustrated catalogues of furniture, statistical returns, French and German dictionaries, Poole's farce, Who's Who?, Brewer's Guide to Science. This is not by any means an exhaustive list, but it accurately shows the nature of the proceedings." (A. Birell, Seven Lectures on The Law and History of Copyright in Books (London: Cassell, 1899), 170-1).

[35] Lucas, 79.

[36] Ibid., 85.

[37] Ibid., 79, relating to a decision from the Court of Appeal of Paris concerning the originality of a telephone directory (18 December, 1924): "Sauf à forcer le sens des mots, on ne voit guère comment la personnalité d'un auteur pourrait s'exprimer dans une compilation utilitaire telle qu'un annuaire de telephone".

[38] For the full translation, see f_1777b (Linguet's memorandum, 31-32). We might also for example recall, along with Linguet and Pluquet, the bookseller Leclerc's letter to M. de Néville, in Laboulaye and Guiffrey, La Propriété littéraire au XVIIIe siècle (Paris: L. Hachette, 1859), 407: "A thousand other workmen, a thousand other artisans might, by their industry, make the same discovery as the man who receives the privilege; he does not have an exclusive right to this discovery; all other workmen or artisans have a right to it; the privilege that is granted to him is thus an infringement of the rights of others, of the right that is theirs under the laws of nature to make that discovery, and to enjoy the advantages it offers [...]. The same is not true of the privilege granted to an author for his work. The ideas, the feelings that enter into the composition of a work, the order in which the author exposes them, the manner in which he expresses them, are his; no one but he could produce the work such as it is; not only, then, is the author thus the sole proprietor of his work, but moreover, no wrong is done to anyone else if he is granted an exclusive privilege for the printing of his work".

[39] See, in comparison, Donaldson v. Becket (uk_1774). Property in musical compositions was also recognized by the king in 1786.