# Primary Sources on Copyright - Record Viewer

PRIMARY SOURCES

ON COPYRIGHT

(1450-1900)

Kant: On the Unlawfulness of Reprinting, Berlin (1785)

Source: Retrospektive Digitalisierung wissenschaftlicher Rezensionsorgane und Literaturzeitschriften des 18. und 19. Jahrhunderts aus dem deutschen Sprachraum, http://www.ub.uni-bielefeld.de/diglib/aufklaerung/index.htm.

Citation:
Kant: On the Unlawfulness of Reprinting, Berlin (1785), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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15 translated pages

Chapter 1 Page 1



(403)


Of the Injustice Of Counterfeiting Books


            Those who consider the publication of a book as the exertion of one's
ownership to a copy of it (irrespective of whether the latter came into its
owner's possession as a manuscript from the author or as a transcript of it from
an already existing edition), and then, nevertheless, by reserving certain rights
(whether these be those of the author or of the editor appointed by him), intend
to limit its use to the extent that it is to be forbidden to reprint it, will
never attain their purpose in such a way. For the author's ownership to his
thoughts (assuming in the first place that such ownership applies according to
external rights) remains his in spite of any reprinting; and, since an explicit
agreement of the buyers of a book to such a restriction of their ownership cannot
justly take place*,


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* Would a publisher risk binding everyone who purchased his publication to the
condition that they may be accused of having embezzled someone else's property
entrusted to them, if it so happens that the copy they have bought is, either
deliberately on their part or perhaps through negligence, used


Chapter 1 Page 2



(404)


how much less would a merely presumed consent suffice as the grounds
for such an obligation!
            However, I believe to have good reason to regard publishing
not as the trading with goods in one's own name but as the conduct of
business in the name of another person - namely, the author - and that
in this way I can easily and clearly demonstrate the unlawfulness of
reprinting. My argument is contained in a syllogism which proves the
publisher's right; followed by a second syllogism which will refute
the reprinter's claims.

I.

Deduction of the publisher's right against the reprinter.

            Whoever conducts someone else's business in that person's
name and yet against his will is obliged to give up to him, or to his
assignee or proxy, all the profits that may arise therefrom, and to
repair all the losses which are thereby occasioned to either the one
or the other.


_____________________________________

for reprinting? Scarcely would anyone consent to this, since he would
thereby expose himself to all kinds of trouble regarding [judicial]
inquiries that might be started against him and the need to have to
accept responsibility. As a result, the publisher would never be able
to sell his work!


Chapter 1 Page 3



(405)


Now, the reprinter of a book is someone who conducts the business of
another person (the author's) etc. Therefore, he is obliged to give
up to the author or to his assignee (the publisher) etc.

Proof of the major premise.


            Since the intruding agent is illegitimately acting in the
name of another person, he has no right to the profit which results
from this business; rather, it is the person in whose name the former
is carrying on the business, or another assignee to whom that person
has entrusted it, who owns the right to appropriate this profit to
himself as the fruit of his property. Moreover, given that this agent
injures the possessor's right by his unauthorised intrusion into
another's business, he must of necessity give compensation for all
the damage [thereby caused]. This belongs without question to the
basic notions of natural right.

Proof of the minor premise.


            The first point of the minor is that in the process of
publishing the publisher is conducting someone else's business [on
that person's behalf] - Here everything depends on the concept of
a book, or any piece of writing in general, as the work of the author,
and on the concept of a publisher as such (who may either have been
empowered [by the author] or not, as the case may be). That is,
whether a book is a commodity which the author - be it directly or
through the




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(406)


mediation of someone else - can trade with the public, and therefore which he
can sell - either with or without the reservation of certain rights? Or whether
it is rather simply an exertion of his [intellectual] faculties (opera*) which
he may certainly concede to others but never sell (alienare)?
Furthermore, whether the publisher conducts his business in his own name or
someone else's business in the name of that person?
            In a book as a written work the author is speaking to his reader;
and he who has printed it speaks by his copies not for himself but entirely in
the name of the author. He gives public representation to the latter's speaking
and facilitates merely the delivery of this speech to the public. Now, the copy
of this speech - be it in handwriting or in print - may belong to whom it will,
yet the use of a copy for oneself or in order to circulate it is a business
which every owner of such a copy can conduct in his own name and at his own
discretion. However, to let someone speak publicly, to deliver his speech as
such to the public, that means to be speaking in that person's name and to
effectively be telling the public the following: "Through me a writer is having
this or that brought to your attention, for your information etc. I answer for
nothing, not even for the liberty which the former is taking in speaking
publicly through me; I am just the mediator of how this is transmitted to you"


_________________

[* Tr. note: The f. sg. 'opera'='exertion, activity or act' should not be
confused with the identical pl. of the m. noun 'opus' which Kant uses to
refer to a concrete product or work. It is important to bear this distinction
in mind]


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(407)


this is without doubt a business which one can only execute in the name of
someone else, but never in one's own (as a publisher). Certainly, the
publisher furnishes in his own name the mute instrument for the delivery of
an author's speech to the public;* but conveying this speech to the public
by printing it and thereby indicating himself to be the person through whom
the author is speaking to the public, that he can only do in the author's name.
            The second point of the minor is that the reprinter undertakes the
author's business not merely without any permission from the latter, but
actually against the latter's will. For given that the he is a reprinter
only because of the fact that he encroaches on the business of someone else
who has been empowered by the author himself, one may ask whether the author
could confer the same permission to someone else too and give his consent
[to such reprinting]? However, it is clear that since in such a case each
of them - that is, the first

_________________________________

* A book is the instrument for delivering a speech to the public - not just
thoughts, as paintings for example do, or the symbolical representation of
some idea or event. From this follows the essential point that it is not a
thing which is thereby delivered, but an act [opera], namely
a speech, and, what is more, literally. By calling it a mute instrument I
distinguish it from those means there are for communicating a speech through
sound - like a speaking-trumpet, for example, or even the mouths of other persons.



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(408)


publisher and the person who usurps the publication afterwards (the reprinter)
- would be conducting the author's business with one and the same public, the
edition of the one would render that of the other superfluous and since this
would be ruinous to both of them, and given that, moreover, a contract between
an author and a publisher with the reservation that apart from the latter,
another publisher should be allowed to undertake publication of the work,
would be impossible, it follows that the author cannot give permission for
this to another publisher (as a reprinter), and that therefore the latter is
not even entitled to presuppose such a consent; and, consequently, that
reprinting is a business which is undertaken wholly contrary to the will of
the owner, and yet one which is undertaken in his very name.

            From this reasoning it also follows that it is not the author, but
the publisher authorised by him who is injured. For given that the former
has entirely and without reservation given up to the publisher his right to
the managing of his business with the public and, moreover, to dispose of it
otherwise, it is the latter who is the sole owner of the transaction of this
business; and the reprinter encroaches on the publisher's right, not on the
author's.


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(409)


            But since this right of conducting a business, which may be done
with exaxt precision just as well by someone else - as long as nothing specific
has been agreed on in this respect - cannot in itself be considered as
inalienable (jus personalissimum), the publisher is entitled to
transfer his publishing right to another because he is the owner of the plenipotence;
and since the author must consent to this, it follows that he who takes over the
business in this second-hand way is not a reprinter, but in fact a legitimately
authorised publisher, i.e. one to whom the publisher appointed by the author
has transferred his plenipotence.


II.


Refutation of the reprinter's pretended right against the publisher.

            The following question still remains to be answered: if whether as a
result of the publisher selling the work of his author to the public - that is,
as a result of ownership of a copy of the work - the consent of the publisher
(and consequently that of the author who gave him the plenipotence) to any use
of it as the owner of a copy may please - and therefore also to the reprinting
of it - follows automatically, however disagreeable this may be to the publisher?
Since it is possible that the latter was induced by gain to undertake the
business of publisher with such a risk,


Chapter 1 Page 8



(410)


without excluding the buyer from this by an explicit contract, as such
an action might have been harmful to his business? - Now, that the
ownership of a copy does not furnish such a right, I will prove by the
following syllogism:

            A personal positive right to another person can never be
derived from the ownership of a thing alone.
            Now, the publishing right is a personal positive right.
            Therefore, it can never be derived from the ownership of a
thing (the copy of the work).

Proof of the major.


            It is true that ownership of a thing entails the negative
right to resist anyone who might seek to hinder me in the use of it at
my pleasure; but a positive right relating to a person, that is, the
right to demand from that person that he or she perform something or is
obliged to serve me in some way, cannot arise from the mere ownership of
a thing. True, the latter [condition] might be added by way of a special
agreement to the contract whereby I acquire a property from someone
(e.g. if, say, I am buying a commodity, it might be stipulated that the
seller has to dispatch it to a given place free of charge). But in such
a case the right relating to a person, that is, the right to expect
that that person should


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(411)


do something for me, is derived not from the mere fact of my ownership of the
thing I have bought, but from a special contract.

Proof of the minor.


            When someone can in his own name dispose of a thing as he pleases,
that means he has a right to the thing. However, what he is only allowed to
perform in the name of another person, that business he conducts in such a
way that that other person is thereby bound by it as if he himself had
carried it out.(Quod quis facit per alium, ipse fecisse putandus est*) Therefore,
my right to conduct a business in the name of someone else is a personal
positive right - namely, a right to force the 'author' of the business to
guarantee that he will assume responsibility for everything that he has
done through me, or for what he obliges himself through me. Now, publication
is a speech to the public (by printing) in the name of the author, and
consequently a business carried out in the name of someone else. Thus, the
right to it is a right of the publisher relating to a person: not merely
that that person should be able to justify himself before him for any use
that he might care to make of his property, but a right entitling him to
compel that person to recognise the business which the publisher is
conducting in his name as his own and to assume responsibility for it -
consequently, it is a personal positive right.


____________________________________

* Lat. "What someone does through another, that he is to be considered to
have done himself"


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(412)


            The copy from which the publisher carries out the print run is a work
of the author (opus) and belongs entirely to the publisher
after he has purchased it, either as a manuscript or in printed form, so that he
can do whatever he wants with it and whatever can be done in his own name; since
that is a requisite of the complete right to a thing, i.e. of ownership of it. The
use, however, which he can put it to only in the name of someone else (namely, the
author's) is a business (opera) which that person carries out through
the owner of the copy, for which apart from ownership a special contract is also
required.
            Now, it is the case that book publishing is a business which can only be
carried out in the name of someone else (namely, the author whom the publisher
presents as speaking to the public through him): therefore, the right to this cannot
belong to those rights which pertain to the mere ownership of a copy. Rather, it can
only become legitimate on the basis of a special contract with the author. He who
publishes without such a contract with the author (or, if the latter has already
conceded this right to someone else as to his legitimate publisher, without a contract
with this publisher) is a reprinter and thereby injures the proper publisher, so that
he is liable to compensate the latter for all damages suffered.


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(413)


General observation


            That the publisher carries out his business as a publisher not just in his
own name, but also in the name of someone else* (namely, the author's), and that, in
fact, he couldn't carry it out at all without that person's consent, is confirmed by
certain obligations which the publisher must satisfy, as is generally agreed. For example,
if an author should die after he has handed over his manuscript for printing to a publisher,
and after the latter has committed himself to publishing it, then the publisher is not
entitled to suppress it as his property. Rather, in the absence of heirs [to the author],
the public has a right to demand of the publisher that he either bring out the work himself
or give up the manuscript to someone else who is willing to publish it. This is because,
for one, it was a business which the author wanted to conduct with the public through him.
Furthermore, it is not necessary for the public to have known about this promise [?] on
the author's part,


______________________________

* If the publisher is an author at the same time, it must be taken into account that
the two occupations are quite different: that is, he publishes in the capacity of a
businessman what he has written in the capacity of a scholar. However, we may leave
aside such a case and restrict our exposition simply to the case where the publisher
is not an author at the same time: it is easy to subsequently extend our conclusion
to the former case, too.


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(414)


nor to have accepted it; the public acquires this right relating to the
publisher (i.e. to expect of him that he should perform something) through
the law alone. For the publisher possesses the manuscript only on the
condition that he uses it for a business of the author with regard to the
public; this obligation towards the public still remains valid even after
that which he has towards the author has expired as a result of the latter's
death. The basis of this argument is not a right of the public to the
manuscript as such but to a transaction with the author. If, after the
latter's death, the publisher were to publish his work in mutilated or
falsified form, or were he to fail to provide a sufficient number of copies
to meet the demand, then the public would be entitled to compel him to bring
out a more accurate edition or a larger print run; and, should he fail to
comply with this request, then the public may arrange for it to be done by
someone else. All this could not be the case if the publisher's right were
not derived from a business which he conducts between the author and the
public in the name of the former.
            However, this obligation of the publisher, which will probably be
acknowledged [as legitimate by everyone], must entail a corresponding right
based on it - namely, the right to all that without which such an obligation
could not be fulfilled. That is, that he should be able to exert the right
of publication exclusively, since the competition of others in his business
would


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(415)


effectively render the conduct of it impossible for him.

            A work of art, on the other hand, since it is an object, may be copied
and re-casted from a copy of it, and the copies thus made of it may be publicly
circulated without requiring the consent of the author of the original or of
those whom the latter used as the executors of his ideas. A drawing which
someone has made or has had engraved in copper, or used as the basis for a
sculpture in stone, metal, or plaster, by someone else can be reprinted or
re-cast and then circulated publicly by the person who buys these products -
just as everything that one can do in one's own name with an object belonging
to one does not require the consent of another person. Lippert's "Dactyliotheca"*
may be copied by anyone who owns a copy of it and knows how to go about such a
task, and offered for sale without this entitling its inventor to complain about
encroachments on his business. For it is a work ('opus' rather than
an act: 'opera'), which anyone who owns it can, without even indicating the
name of its originator, sell and thus also copy and bring into public circulation
under his own name. The writing of someone else, however, is the speech of that
person (opera), and he who publishes it can only speak to the public
in the name of the latter,


_____________________________

* A famous colllection of engravings of ancient gems published in 1755-62 by the
Dresden-based collector Philipp Daniel Lippert (1702-1785).


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(416)


and can say of himself no more than that the author is delivering the
following 'speech' through him (Impensis Bibliopolae)*. For it is
a contradiction to give a speech in one's own name which according to the
announcement one has made oneself, and as expected by the public, is
supposed to be the speech of someone else. The reason, therefore, why all
works of art by other persons may be copied for public sale, whereas books
which already have their appointed publishers may not be reprinted, lies
in the fact that the former are works (opera), whilst the latter
are acts (operae), so that those are things which exist in
themselves, whereas these can have their existence only in a person.
Consequently, the latter belong exclusively to the person of the author**,
and he

______________________________________

* Lat. "At the expense of the book publisher".

** The author and the owner of a copy can both say with equal right of the
copy: it is my book! - but in different senses. The former is regarding
the book as a written work or speech, whereas the latter sees in it simply
the mute instrument for the delivery of the speech to him, or to the public -
i.e. he regards it as a copy. This right of the author is, however, not a
right to the object, that is, to the copy (for its owner is certainly entitled
to, say, burn it in front of the author); rather, it is an innate right,
invested in his own person, entitling him to prevent anyone else from
presenting him as speaking to the public without his consent - a consent
which cannot be taken for granted by any means, since he has already conceded
it to someone [to his publisher].



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(417)


has an inalienable right to them (jus personalissimum), entitling him to
always be the one speaking through anyone else, i.e. a right which means
that no one can deliver the same speech to the public other than in his
(the author's) name. But if one modifies a book written by someone else
(abridging it, or adding to it, or reworking it) in such a way that it would
actually be wrongful to bring it out under the name of the author of the
original, then such a modification carried out in the publisher's own name
does not constitute reprinting and is therefore not forbidden. For here
it is another author who is conducting through his publisher a different
business to that of the first author, and this other author is therefore
not encroaching in the latter's business with the public. He is not presenting
that author as speaking through himself, but rather an altogether different
author. Neither can translation into a different language be treated as
reprinting, for it is not the same speech by the author, even though the
thoughts may well be the same.

            If the idea of book publishing as such which was taken as the
basis for the above arguments were to be understood properly and (as I
flatter myself to think it feasible) if it were to be elaborated with the
requisite elegance of Roman juridical scholarship, then actions against
reprinters could very well be brought before the courts without it being
necessary to apply beforehand for a new law to be promulgated in this respect.

                                    I. Kant

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Translation by: Luis Sundkvist, adapted from John Richardson's anonymous translation of 1799.

    


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