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Fichte: Proof of the Unlawfulness of Reprinting, Berlin (1793)
Source: Berlinische Monatschrift (1793), 443-482
Citation:
Fichte: Proof of the Unlawfulness of Reprinting, Berlin (1793), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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41 translated pages
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443
5.
Proof of the Illegality of
Reprinting
A Rationale and a Parable
When we eliminate bad reasons we make room for
better ones. Such was the verdict handed down recently
by a court held in high esteem for its rank and, even more so,
its justice. And so too thought the author of the essay,
“Publishing from the Perspective of the Writer, the Publisher,
and the Public, Reconsidered,” in the Deutsches Magazin
in April, 1791. It seemed to Mr. Reimarus that the illegality
of reprinting books had not yet been proven by the arguments
advanced so far, and by appearing to defend the practice
he hoped to challenge scholars to come up with better ones.
For he cannot possibly have meant his position to be taken
seriously; he cannot possibly have wanted to see the defense
of a practice prevail which fills all right-thinking
minds with loathing.
His essay is divided, according to the nature of
the subject, into two questions: one concerns the
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Berlinische Monatsschrift 21 (1793)
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legality and the other the utility of
reprinting. Regarding the former he claims
that no one has yet demonstrated that a
writer - or his representative, the
legal publisher - has a right to
prohibit reprinting on the basis
solely of his perpetual property in his book,
hence that the authority to
reprint would naturally follow. Consequently
the question of whether reprinting should
be allowed in civil states after being
rejected in the court of perfect justice
would depend on the answer to the further
question of whether it was a useful practice.
Mr. Reimarus answers the latter question
affirmatively, and thus the former as well.
At the same time, however, he does also
suggest a number of restrictions on the
general permissibility of reprinting which
favor the author and his legal publisher.
Mr. Reimarus - for admittedly we
did not consider it necessary to check the
authors he cites in support of his position,
since we naturally could assume that he used
their arguments and that the most recent
defense of the position, namely his, would be
the most convincing - Mr. Reimarus, then, has
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not demonstrated, nor attempted to demonstrate, that
no such perpetual ownership by the author is
possible. He has rather just said that no one
has so far demonstrated its existence, and he
has presented a number of proceedings that in his
opinion contravene the generality and thus
inviolability of such a right based
on ownership. Thus we need not follow him
step by step and meet each of his arguments
separately. For if we can simply prove the
existence of such a perpetual ownership of the
text by its author, then what Mr. Reimarus requires
will have been provided and he himself may
undertake to reconcile his examples with the proof.
Furthermore, we will not need to respond to his
demonstration of the utility of reprinting, since
this will no longer be relevant; for whatever is
plainly illegal ought never to occur no matter
how useful it may be.
The difficulty of demonstrating that an
author has perpetual property in his book arose
from the fact that we have nothing comparable to
books and that things that appear to be more
or less similar differ a great deal on many accounts.
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This explains why our proof will
unavoidably have a somewhat sophistical
appearance, one we will however do our
best to polish up. Let the reader not
become suspicious on this account, for
our proof is most easy to clarify and
confirm in concreto. - There are after all
a good many maxims in circulation on
this subject that all informed and
thoughtful people with no vested interest
in the opposite view accept and according
to which they judge others' and their
own actions. Now, if all of these maxims
can be easily and naturally deduced from
the principle we will be asserting, then this
will serve as a test of its validity, and it
will become clear that it is this very
principle that was at the root of all our
judgments in these matters, however obscure
and undeveloped they may have been.
To begin with, then, the principle: We
are the rightful owners of a thing the
appropriation of which by another is physically
impossible. This is a proposition that is
immediately self-evident and needs no further
proof. And now to the question: Is there
anything of this sort in a book?
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We can distinguish two aspects of a
book: its physical aspect, the printed
paper, and its ideal aspect. Ownership
of the former passes indisputably to the
buyer upon purchase of the book.
He can read it and lend it as often as
he likes; he can re-sell it to whomever he
wishes, and for as much or as little as he
wants or can get; he can tear it to pieces
or burn it - and who could quarrel with him?
But since people seldom buy a book for
such purposes, even less seldom just to
display its paper and print or to
paper the walls, they must assume that
when they buy a book they are also
acquiring a right to its ideal aspect.
This ideal aspect is in turn divisible
into a material aspect, the content of the
book, the ideas it presents; and the form
of these ideas, the way in which, the
combination in which, the phrasing and wording
in which they are presented. It is apparent
that simple transfer of the book to us does
not yet confer ownership of the former, for
ideas cannot simply be handed over or
bought for cash. They do not become ours
just by our picking up a book,
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carrying it home, and putting it
in our bookcase. In order to appropriate
the ideas a further activity is necessary.
We must read the book, think through its
content - insofar as it goes beyond
common knowledge - look at it from
various points of view, and in this way
assimilate it into our own pattern of thought.
However, since we would not be able to do this
without possessing the book, and since we did
not purchase it just for the sake of the paper
it contains, buying it must accordingly also
confer on us the right to appropriate its
content as well. By purchasing the book, that
is, we acquire the possibility of
appropriating the author's ideas; but to
transform this possibility into reality, we
must invest our own labor. - Prior to the
publication of his notable works, then, and
for a considerable time thereafter the ideas
of the premier thinker of this and the
previous century, and most probably of all
to come, were the exclusive property of their
author. No purchaser acquired the ideas
contained in the "Critique of Pure Reason"
in exchange for the money he paid for the volume.
There are now some clear-sighted men
who have appropriated these ideas - probably
not by buying the book but certainly by
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assiduous and rational study of it.
Such study, it may be said in passing,
is the only fitting recompense for the
instruction of minds, whether oral or written.
The human mind has an inborn propensity to
elicit agreement with its own pattern of
thought and any even apparent satisfaction
thereof is experienced as the sweetest
reward of the effort expended. For who would
want to teach to bare walls or write books
that nobody read? It would be absurd to
consider the money one was paid for such
instruction as equivalent in value. It is simply
compensation for the sums a teacher must pay to
those who, while he is thinking for others,
hunt, fish, sow, and harvest for him.
What is certainly offered for sale through
the publication of a book, then, is first of all
the printed paper, to anyone, that is, who has
the money to buy it or a friend who will lend it
to him; and secondly, the content of the book,
namely to anyone who has enough brains and diligence
to appropriate it. As soon as the book is sold,
the former ceases to be the property of the
author (whom we can still consider here as
the seller) and passes
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exclusively to the buyer, since it cannot have
more than one lord and master. The latter, however,
the book’s content, which on account of its ideal
nature can be the common property of many, and in
such a manner that each can possess it entirely,
clearly ceases upon publication of the book to be
the exclusive property of its first proprietor (if
indeed it was so prior to publication, which is not
always the case with some books nowadays), but does
continue to be his property in common with many others.
What, on the other hand, can absolutely never be
appropriated by anyone else, because this is physically
impossible, is the form of the ideas, the combination
in which, and the signs through which they are presented.
Each individual has his own thought processes,
his own way of forming concepts and
connecting them. This we take as a presupposition,
as it is generally recognized and accepted by all
who understand it, and because we are not here
writing an empirical study of the mind. All that
we think we must think according to the analogy
of our other habits of thought; and solely through
reworking new thoughts after the analogy of our
habitual thought processes do we make them our own.
Without this they remain something foreign in our minds
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that connects with nothing and affects
nothing. It is more improbable than the greatest
improbability that two people should ever
think about any subject in exactly the same way,
in the same sequence of thoughts and the same
images, when they know nothing of one another. Still,
this is not absolutely impossible. What is
absolutely impossible, however, is that someone to
whom ideas must first be imparted by another should
ever assimilate them into his own system of thought
in exactly the form in which they were given. Now,
since pure ideas without sensible images cannot be
thought, even less are they capable of presentation
to others. Hence, each writer must give his thoughts
a certain form, and he can give them no other form
than his own because he has no other. But neither
can he be willing to hand over this form in making
his thoughts public, for no one can appropriate his
thoughts without thereby altering their form. This
latter thus remains forever his exclusive property.
From this follow two rights of the author:
not only, as Mr. R. would have it,
the right to prevent anyone from disputing
his ownership of this form (the
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right to demand that everyone recognize him as
the author of the book), but also the right to
prevent anyone from infringing upon his exclusive
ownership of this form and taking possession of it.
Yet before we draw further conclusions from
these premises, let us first subject them to
their test. - Up until now writers have never
taken it amiss that we make use of their
texts; that we share their use with others;
that we even establish lending libraries with
their books, though this is obviously to their
disadvantage (for we are still considering them
here as the sellers). And if we tear the books
up or burn them, a man of reason will be offended
only if it is likely that we have done so as an
expression of scorn. So far, then, writers have
always granted us complete ownership of the
physical aspect of their texts. Equally, they
have taken no offense when, in the case of
scholarly works, readers appropriated their
principles, presented them from different
points of view, and applied them to different
subjects; or when, in the case of light reading,
people have imitated the books’ manner,
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which is something completely different from their
form. They have thereby conceded that
the ownership of ideas can also pass to others.
Yet it has generally always been considered
contemptible to copy word for word without
giving credit to the actual author, and
writers who do so are branded with the
disgraceful name of plagiarist. It is clear
that this general disapproval is not leveled
against the intellectual poverty of the plagiarist,
but rather against something immoral in his
behavior, because were the former the case
we would simply pity him without despising him.
Nor is the immorality of his act - and the reason
for giving him this ignominious name - a matter of
his selling something that has already been sold
and in this way cheating buyers out of their
money. This is apparent from the fact that our
bad opinion of him in no way diminishes when
he has copied from a very rare book such as
could be found only in a large library. That the
injustice is also not, as Mr. R. might hold, a
matter of the writer's authorship having been
denied follows from
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the fact that the plagiarist does not actually dispute
his authorship but only ignores it. It would be equally
fruitless to seek the root of the injustice in his
failure to pay the author due respect by omitting
to name him as he should have, since the plagiarist
is no less a plagiarist when he copies the text of an
anonymous writer. And we can confidently ask any
man of honor if he would not be ashamed just to
imagine the possibility of copying, say, from
the manuscript of some unknown, deceased person
or from a book of which he was the sole owner.
From all that has been said we can see that
these reactions cannot possibly stem from anything
but the idea that the plagiarist takes possession of
something that is not his. - Why then do we think
so differently about employing an author's own words
and using his ideas? In the latter case,
we make use of that which can be our joint property
with him and demonstrate that this is so
by giving it our own form. In the former case, we
take possession of his form, which is not ours,
but his property exclusively.
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We make an exception in the case of citations.
And we make it not only for the type of citation
which merely reports that a writer has discovered,
proven, or presented such and such a thing and,
without either appropriating his form or propounding
his ideas, simply builds upon them; we also make an
exception for citations that employ the author's
very own words. In the latter case we actually
take possession of the author's form, but without
passing it off as our own, so this is of no matter.
The authorization for this seems to be based on
an unspoken agreement among writers to cite each
other by direct quotation of their own words. But
even here no one would approve of anyone
copying out particularly long passages where it
was not very evidently necessary. Finally, we are
only half-justified in including among the exceptions
the anthologies, the witticisms (esprits) – collection
of which generally does not require much wit - and
other such little pilferings which go quite unnoticed,
since they neither help nor harm anyone very much.
No instructor would tolerate someone printing
his lectures, and yet none has ever
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objected to his listeners attempting
to appropriate his ideas and principles
and spread them in oral or written form.
What is this distinction based on? In the
latter case, people present his ideas,
which have become theirs through their
own reflection and through assimilation
into their particular pattern of thought. In
the former case, they take possession of his
form, which can never become their property,
and they thereby encroach upon his absolute right.
And now to apply these principles -
which have been a priori proven and
a posteriori tested as to their capacity
to explain what is considered just in these
matters - to the relationship between writer and
publisher! What does the former cede to the
latter when he hands over his manuscript?
Is it perhaps ownership of the manuscript?
But scholars will admit that this generally
speaking is not worth the money. And why do they
not permit themselves to sell several copies
of one and the same manuscript to several
different publishers? Is it perhaps ownership of
the ideas contained in the manuscript that is ceded?
But this cannot be conferred simply by handing
over the manuscript - and publishers would seldom
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be well served by this in any case. Ownership
of the form in which the ideas are expressed
is even less conferrable, for the form is and
remains the exclusive property of the author. - The
publisher, then, does not acquire ownership of
anything at all through his contract with the
writer, but rather under certain conditions only
the right of a particular usufruct of the writer's
property, that is to say, of his ideas in their
particular form of expression. He is authorized to
sell to whomever he can and wants, not the author's
ideas and their form, but only the possibility of
appropriating the former thanks to their appearance
in print. In all respects, then, he acts not in
his own name but in the name and by
mandate of the author.
These notions are evident in generally
accepted maxims. Why do we generally fault
even the legitimate publisher when he prints
a larger number of copies than arranged with
an author? The author’s right to prohibit this
is based on a contract, to be sure,
a contract, however, granting not ownership
but only usufruct. The publisher can at most be
called the owner of this usufruct. -
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Why then is he criticized for arranging
a second edition without the author's permission?
How, when the author has neither added anything new
nor made any revision, can he demand another fee
from the publisher just for granting permission
to print a new edition? Would these maxims not
be contradictory if we assumed that the book
was the property of the publisher instead of
remaining the perpetual property of the author,
with the publisher acting only as his representative?
Would it not be contradictory for the public
to seek redress against the author of a book rather
than its publisher when, having been
deceived by a grand title, it buys a book
filled with nothing but a poor patchwork of
common knowledge culled from all the best-known
books? And we do indeed have the right to
complain, for we did not intend to buy but
a few pages of paper printed with letters
but also, at the same time, the possibility
of informing ourselves about certain matters.
This is what we were promised but not given.
We have been duped; we have wasted our money.
But was it not the publisher we paid the money
to, and was it not he who gave us this vacuous
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book in exchange? Why, then, do we not
address ourselves to him, the retailer,
just as we do when we buy anything else? Why
blame the poor author?.. This is how we
would have to think if we did not think of
the publisher as just the writer's representative,
as trading with us in the author's name and,
when we feel we have been cheated, as having
deceived us in the author's name, at his bidding,
and often without the least malice of forethought.
This then describes the relation among author,
publisher and public. And how does the reprinter fit
into the picture? He takes possession not of
the author's property, not of his ideas
(for the most part he is incapable of this, for
if he were not an ignoramus he would pursue a more
honest trade), and not of the form in which
the ideas are expressed (this he could never do
even if he were not an ignoramus), but rather of the
usufruct of the author's property. He acts in the
name of the author without any mandate from him,
without having reached some agreement with him,
and appropriates the benefits inherent in this
representative function. He thereby usurps a
right to which he is not entitled and
hinders the author in the exercise of his
absolute right.
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Before drawing a final conclusion, we must
remind ourselves that it is not a question
here of the harm that the reprinter may
inflict on the author, either directly or
indirectly, by acting as his representative. For
however often we could show that neither the
author nor the publisher suffers any harm - that
it is even to the author’s advantage to be
frequently reprinted and that his fame is thereby
spread through all the German lands, from the
towers of learning to the remotest
hamlet in the provinces, from the scholar's
study to the artisan's workshop - would
this make just what is unjust? Do we have a
right to act in someone's interest when it is
against his will and rights? Everyone is perfectly
entitled to cede nothing of his rights,
however much this may harm him.
When will people ever develop a feeling for
the noble idea of justice, without any regard
for utility? - It should be further noted
that this right of the author, on which the
reprinter encroaches, is not based, as Mr.
Reimarus believes, on a supposed contract
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between author and public, and some Jesuitical
mental reservation contained therein,
but rather is his natural, inborn, and
inalienable right of ownership. That we
would not wish to see such a right infringed may
simply be assumed; it need not be stated
explicitly. On the contrary, one would need to
state as much if one wished to forego exercise
of this right.
Supposing all of the foregoing to be proven,
and considering that anyone is a thief who
usurps the use of others' property for his own profit,
then the reprinter is without doubt a thief. If,
moreover, a theft is the more unpardonable when
it involves things that by their very nature
cannot be kept under lock and key,
then the reprinter's theft is one of the most
unpardonable, for it involves something which
necessarily lies open to the public,
like air and ether. And if, finally, a theft is
all the more unpardonable the nobler the objects
it is perpetrated on, then it is the most unpardonable
of all when it involves things that are creations of
the mind. This is why the term “plagiarism,” which
originally meant kidnapping, has been applied to
the theft of books.
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And now to some of Mr. Reimarus's examples!
“Just who,” he asks, “has the usufruct
of the author's perpetual property in the case of
writers of old; who, for Luther's translation
of the Bible?" - When the owner of a particular
thing and his heirs and successors are
deceased or cannot be located, then
society becomes the inheritor. If the latter
wishes to relinquish its right and let the
thing become the common property of all, or if
this is what the owner himself wishes, -
who can prevent it?
“Would it be considered theft of the
author's property in his book,” continues Mr. R.,
“if someone were to make a single or several
handwritten copies with the intention of
selling them?” Considering that there are so few
booklovers who would prefer a handwritten to a
printed copy; that, therefore, neither the
author nor the publisher suffers significant
injury from this method of reproducing copies;
that the profits from this painstaking endeavor
are not large and the selling price is generally
but meager recompense for the effort expended, so
that the copyist's illicit greed would thus be
the less noticeable; then perhaps both
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author and publisher would just as soon keep silent.
And yet if we accept the validity of the above mentioned
maxims, then every usufruct of the book in fact remains
unjust, no matter how slim the profits.
Those who would like to own the book in a handwritten
copy, or the copyist himself, ought to negotiate
directly with the author. - If the authors of old
failed to give consideration to the possible usufruct
of their authorship, or, being uninterested in
exercising their rights, they left the option
open to anyone who wished to do so to make copies
of their books, giving their approval by their silence,
nonetheless they had the absolute right - as does
everyone - to relinquish their rights. Had they
so wished, however, they could just as well
have exercised their rights, as do our contemporary
writers; for what is just today was always so.
When these principles are applied to
things that have often been compared and
confused with books they become even clearer. For
instance, books have been compared with products of
the mechanical arts, and reproducing such products
to the detriment of their inventor with the reprinting
of books. - How fitting or unfitting this comparison
is we will see directly. A product
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of the mechanical arts also has both a physical aspect -
the material from which it is made, such as steel, gold, wood,
and the like - and an ideal aspect - the concept
underlying it (the rule according to
which it has been made). It cannot be said of
this ideal aspect that it has a form unique to
the maker because it is itself a concept
which underlies a specific form - the form taken
by the material, the relationship of the individual
parts to the realization of the object's intended
purpose – and hence can be defined in only one
way, as befits a precisely conceived concept.
Here it is rather the physical aspect that,
insofar as it is not determined by the underlying
concept, takes on an individual form. This individual form
- insofar as it is not related to
the object’s intended function - is responsible for
the neatness, the elegance, the beauty of the crafted
object; it causes us to distinguish the workmanship
of the English craftsmen, or of any particular
master, from that of all others even though we are
not able to clearly state what accounts for the
difference. We can also find this kind of individuality
of the physical form in books, in the purity and
elegance of the printing, for instance. And in this
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regard the book is a product of the mechanical arts
and as such can be subsumed under the easily deducible
rules of these arts.
Assuming, as is commonly done,
that through the sale of a thing ownership of
all that is physically appropriable passes to
the buyer, then what is passed on to the buyer
through the sale of such a work of mechanical art?
Without doubt, ownership of the material, physical
aspect and along with this the possibility of using
the work for the desired purpose - assuming the buyer
so wishes, understands this purpose, and is thus
able to realize it. The possibility of appropriating
the concept underlying the work (the rule according
to which it is made) is not the purpose of the
sale, nor generally speaking of the purchase either,
as it is in the case of a book, where this
purpose is evident. Furthermore, this possibility
passes by way of the sale not to every buyer but
only to those who have the necessary knowledge
to exploit it. However, ownership of the
underlying concept is not passed by way of
the sale at all; rather, in order to appropriate
this concept the buyer must take active steps,
investigate the work, perhaps take it apart,
think about it, etc.
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Yet it is not only physically possible
but often very easy to discover the rule
according to which the work was made. To then
endow this underlying concept with a unique form,
one must be an artisan oneself, and that too in a
particular craft. The form as created by the original
maker can never be physically exactly duplicated.
But this is of no consequence, for the differences
are usually not even perceptible; and often the
second maker will give the object an even finer form.
It follows that one can acquire ownership not only of
the material object but also, under certain circumstances,
of the concept according to which it was fabricated.
And since one has the right to use one's own property
however one wishes, undoubtedly one also has the right
to reproduce this work of mechanical art. However,
the exercise of this right is not fair. It is not fair
that the man who invested his money and years of hard
work and effort should find himself robbed of
the fruits of his labor as soon as he goes
public with the results of his extensive work,
results that are of such a nature that anyone
who sees them can appropriate them. But
since in questions of profit we cannot count
very much on people's fair-mindedness, the State
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steps in and, through an explicit
law called a privilege, transforms what
was a question of fairness into one of rights.
Since such a law curtails the natural rights
of others and they are thereby robbed of their
rights - especially so in that they are forced
to do what formerly depended on their good
will and could have brought them merit, so
that at the least they are robbed of earning
this merit - therefore the state retracts this
law the moment its aim of compensating the
original inventor has been achieved, and
gives the people back their natural rights,
which they may again exercise through
reflection and study.
Such a privilege, then, pertains to
exploitation of the acquired underlying concept. The
only book privilege that would be comparable to it
would be one that prohibited, say, the writing
about particular topics, such as metaphysics
or natural philosophy, for a period of ten years. -
Could it perhaps be, as it would seem from
his recommendations concerning book privileges,
that Mr. R. has confused books with works of
mechanical art, as though nothing more were needed
for their production than to have a recipe in mind,
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agile fingers, and some paper and ink?
The right of the buyer to reproduce his
purchase extends as far as does the physical
possibility of appropriating it, and this
decreases the more a work depends on the form,
which we can never appropriate. This
gradation proceeds by imperceptible degrees
from the common study lamp to Correggio's
painting of the Night. The latter never
sought a privilege and has nonetheless never
been copied. To be sure, every painter can put
colors on a canvas, paint light and shadow,
a child and a young woman. But that is not
what interests us; what interests us is rather the
indescribable yet perceptible form of the
presentation. - Engravings of paintings
are not reproductions: they alter the form.
They end up as engravings and not paintings;
but whoever wants to see them as equivalent is quite
at liberty to do so. Even an engraving of a previous
engraving of a painting is not a reprint, for each
artist gives his engraving his own unique form. It would
only then be a reprint if someone took possession of
someone else's plate and printed from it.
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Now, following this distinction, the question
is: what is a book privilege? By definition a
privilege is an exception to a generally
valid natural or civil law. Up until now there
has existed no civil law concerning the ownership
of books. Hence a book privilege must be an
exception to a natural law. A privilege of this
sort says that a certain book is not to be reprinted.
It thus presupposes a natural law that
would have to read as follows: everybody has the right
to reprint every book. - Is it really true though
that the right to reprint is recognized as a generally
valid natural right even by those into
whose hands humanity has entrusted the safekeeping
of its rights, i.e., the governing authorities;
is it really true that even scholars recognize
this as a natural right? For what else after all can
the request for a privilege mean than, “I acknowledge
that, from the day of publication of my work,
whosoever wants to has the undisputed right
to appropriate my property and every possible use
thereof, but I request for my own benefit that
the rights of humanity be restricted.” Has anyone
ever accepted having to have a permit
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to pass by highway robbers unharmed? - “But
a book privilege is no pass against
robbers, it's an escort by hussars,” they tell me.
If this were the case, if it even could be the
case in countries where thieves do not just
roam unchecked through the forests, as they do
in Arabia, but can be hauled in at any moment by
the authorities, then we would be facing quite
a different investigation.
The Tr***[Trattners], Sch***[Schmiedes],
the W***[?] are certainly thieves, but they are privileged
ones. They themselves are not - for we will grant the
observation that one of the two privileges, either
the one that forbids or the one that permits reprinting,
must be nonsensical - they themselves, as I was saying,
are not in the least guilty. Ignorant of what is
lawful and unlawful - this being too profound a
question for them - they turned to those who should
know, were told, and believed what they heard.
Of course, the English merchant was not especially
pleased when a French corsair came along and
took away his ship and cargo. He complained
about this injustice. To which the pirate responded,
“This is no injustice, this is wartime justice,”
Chapter 1 Page 29
471
and showed him his corsair’s license. And while
the Englishman was busy examining it to
convince himself of the legality of the acts he was
being subjected to, the other pilfered his
pockets, and rightly so.
But with what right does the pot call the
kettle black?.. Where is the defender of reprinting
who can explain this to us? - “It would be asking a
lot of a government,” so they say, “to mandate
that expensive foreign goods be imported into
its lands.” That would indeed be asking a lot,
but it would not be so unfair to expect it to
get along without them altogether if they are too
expensive. Joseph II certainly had a perfect
right to forbid the import of Dutch herrings
into his lands. Who would dispute this? But
would he also by the same token - considering
that Dutch herrings are just not reprintable -
have had the right to send out pirates to waylay
the Dutch ships and take their catch? And if
this expensive foreign commodity – for books in
this system are no more nor less commodities than
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herring and cheese – is not to be imported
at all, then from what is one to make the
reprints?.. Oh yes! we will of course take
care not to prohibit the import of foreign books
until after we have reprinted them.
“With regard to the author's welfare,”
so the argument continues, “it is completely
irrelevant in a country that forbids the import
of his legitimate edition whether or not a
reprint is sold, since he could never make any
earnings from such a country anyway.” And they
are right, and all the more so in a system
in which nothing is illegal but what causes harm.*
* After I had fully completed this essay, I came
across the disquisition by Prof. Kant, Berlinische Monatsschrift,
May 1785, "On the Injustice of Reprinting Books",
which for some chance reason I had never read
before. It is very encouraging to find myself
on the same road as him, without having previously
known anything about the course he was taking.
He too refuses to base this proof on some
kind of unspoken contract between the author
and the public; rather, at the very beginning
of his essay he makes it clear that such a proof
is absolutely impossible, were one to presuppose
that the publisher is the owner of the book and
that he could therefore transfer his property
right to the [book]seller. The conclusions of his essay
- namely, that the publisher must be regarded
not as the owner, but
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473
If everything has now been clearly demonstrated
which needed demonstrating - that the author retains
perpetual ownership of his book and
that he has a perfect right to prohibit anyone
from profiting against his will from what
by its very nature remains his;
that therefore the reprinting of his work is an
evident injustice and even one of the most unpardonable
- then our investigation of the permissibility of
reprinting has obviated the need to ask whether or not
it has any utility, and we can refrain altogether from
answering this question. Neither Mr. R. nor the public
______________
rather as the author's representative, and that he
thus cannot transfer a right to the seller which he
did not have in the first place - as well as his
application of them to works of art, coincide
precisely with our own conclusions. Kant bases his
proof thereof on the fact that a book is not an opus
but rather opera (a mere use of the
author's faculties) - Now, that this is what a book
really is, can be seen clearly from the way that the
author must give it its particular form, so that
it is through him - and only in that particular form
which he has defined for it - that the book is able
to exist. For the concept of opera covers all that
which can only be completely defined by our individual
frame of mind; the finest painting, on the other hand,
is opus because its essence (its beauty)
depends on a physical form and could therefore rightly
be copied, if it were possible. (The intellectual aspect
underlying it, e.g. the idea of the whole, its
character, expression, and so on, does indeed depend
on [the painter's] frame of mind, but this is not
what actually matters when considering a painting.)
Chapter 1 Page 32
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will object, then, if we recount a
parable instead of pursuing this inquiry.
What it can explain – since, as noted above,
we have nothing remotely similar to books –
what after all that has been demonstrated it
still has to explain will become apparent.
In the time of the Caliph Harun al Raschid,
famous for his wisdom in "Thousand and One
Nights" and elsewhere, there lived, or could
have lived, a man who prepared an extract out of
heaven knows what herbs and salts which was
reputed to be good against every malady, and even
against death itself. Now, although it did not
exhibit quite all the potencies its inventor
boasted of - he himself remained a bit on the
sickly side - it was nonetheless an excellent
physic. Wishing to remain completely undisturbed
in his laboratory work, he did not care to get
personally involved in the commercial side of
the business and entrusted this to a merchant,
who was the sole distributor throughout the
land and who earned a goodly profit thereby.
This aroused the envy of his colleagues,
the other medicine merchants, who maligned
him and his extract. There was one among them,
however, who took a different approach
altogether. This fellow would waylay
Chapter 1 Page 33
475
the monopolist's people when they were
delivering the nostrum from the chemist,
relieve them of their cargo, or even
steal it straight out of the warehouse.
And he was well able to do this, for he
was a strapping fellow. He thereupon
retailed it at all the fairs, in every
village and corner of the land, and since
he sold it cheaply and praised it high as
the sky, he did a very swift business indeed.
Whereupon the monopolist raised a hue and
cry throughout the land, and from time to
time, of course, as is wont to happen in such
circumstances, names like thief, robber, and
the like were bandied about which got back
to this fellow. The monopolist would gladly
have taken something back from the fellow,
but there was nothing much worth taking. He
kept setting traps to catch the thief, but
the latter was more clever and avoided all
his snares. In the end, though, as unbroken
good luck will make a man careless, he did
indeed fall into the hands of his enemy
through his own heedlessness and was brought
before the Caliph. Here the medicine merchant
lodged his complaint against the fellow,
which followed much the same lines as the one
lodged by our publishers against the reprinters.
The fellow was
Chapter 1 Page 34
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not to be intimidated - through his peddling
activities he had grown in audacity and
acquired a certain eloquence - and he conducted
his defense as follows:
Most Glorious Successor of the Prophet!
I like to proceed in a principled way. As
everyone knows, the only true measure of the
excellence of our actions is their utility.
The more widespread and significant the
benefits of an action, the more virtuous that
action is. There are still a few people, it
is true, whose muddled minds construct an
artifice they call the Right, I believe. This
is a phantasm that can never be realized in
life, for can one not starve to death in the
midst of righteousness? Heaven forbid that
such old-fashioned notions as these should
defile the enlightened times of Your Majesty's
glorious reign! - If, then, I prove that my
actions have engendered the most widespread
benefits, I will thereby have proved beyond
a doubt that they are also praiseworthy.
And this can be easily done. But is it really
necessary to show that my actions have the
most beneficial of consequences for the public?
I sell the nostrum much more cheaply
Chapter 1 Page 35
477
than the plaintiff; the lowliest man can
thus afford to procure it, which he
cannot do at the high price demanded by
the monopolist. Through hard work and all
the arts of persuasion, I urge the extract
upon the unenlightened masses, and I burn
with such ardor for their greater good that
I all but force them to regain their health
through the aid of this healing tonic. What a
service to suffering humanity! Could I but
paint a vivid picture for Your Majesty of
the groans of the suffering, the rattling
throats of the dying who have been saved by
the physic they bought from me! To how many
countless children have I not given back
their fathers, who were already at death's
door, and thus preserved for them the
opportunity to be shaped into good citizens,
to educate their own children to become
good citizens in turn, and through them,
all of their descendants. Just calculate all
the work that everyone whose life has been
extended by several years through this
miracle medicine can perform for the culture
of the land with these additional years; just
imagine the even greater culture that will
become possible thereby, and so on ad infinitum.
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Just tally up the number of children each
one of them can still procreate in these years,
and the children of these children; and then
figure the total growth of humanity and culture
which results from all of this and which would
have been absolutely impossible had I not stolen
those miraculous drops from the plaintiff.
Granted, some slanderous tongues claim that
the nostrum I sell is generally a bit on the
spoiled side. And if I must admit that there is
something to this accusation - I am a lover of
the truth - yet truly the fault is not mine. I
would prefer, if I could, to endow it with yet
greater potency so that everyone would buy from
me alone and the plaintiff would lose all his
customers - and this only out of my love for
the greatest common good. But how, when I am
forced to be constantly on the run from my
opponent and when my actions are subjected to
such vilification, forcing me to work with the
most dissolute of companions, how should I
be able to conserve the physic with the care
it deserves? If one day my trade should be
adjudged completely honorable and trustworthy,
as I am hopeful that it will on account of
the great service it renders, then I will
Chapter 1 Page 37
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also be in a position to pay greater attention
to the careful conservation of my product.
I am accused of inflicting damage on
the producer of the nostrum, and thus
indirectly on the public, in that the plaintiff,
if I continue taking away his drops, will
necessarily be reduced to poverty and no
longer be able to pay the chemist, who as
a consequence will have to stop production.
But those who so argue do not know their man!
He will not stop production on this account.
It is after all his passion, and he obviously
just works for glory. On the contrary,
the more I take away from his middleman and
the less the latter can pay him for his
physic, the more he will have to work to
make ends meet and the more, consequently,
of this healing potion he will produce. And
is his fame not spread by me to the remotest
villages? Do I not trumpet his name in a
loud voice from my stall at all the fairs?
Is his name not on all my tins and jars in
large gold letters? Is this not glory
enough for him? Must he also have bread?
May he live on glory alone!
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480
And finally it is said that I cause
the plaintiff hardship. But I must confess
that here my blood really starts to boil. I
must say, my dear Sir, that you should be
ashamed of the unfairness of this accusation.
Have you not already earned enough from your
monopoly? Ah! if I could but share in the
losses you claim to have suffered! Why will
you not allow me to steal whatever I can from
you? Why will you not allow me to take a
few remains? And even since I have been doing
so more energetically, have there not still
been plenty of customers who prefer to buy
your expensive wares rather than my cheap
ones, either because of the supposedly
superior quality of your preparation,
which cannot amount to much, or out of
some old-fashioned prejudice in favour of
legitimate ownership and against
collaboration in the robbery of third
parties? As if I too, if you insist on
speaking of legitimacy in the first place,
did not acquire legitimate ownership of
your wares by dint of the effort I go to
to steal them!
Quite to the contrary, if you would
but look at the situation soberly, it is
to you that I have rendered the greatest
Chapter 1 Page 39
481
service of all. You do not yet know
your chemist. Envious of the profits
you make on his nostrum, he has long
been thinking of taking over the
merchandizing himself. True, he needs
his time much more for producing this
physic of his; he understands nothing
about selling medicine; the few forays
he made ended very badly. Yet - and you
can take my word for it - he would have
robbed you of your trade, if, clever as
he is, he had not noticed my plot against
your stores and preferred to see you
rather than himself get robbed. Thus, if
you still have any control of your trade
at all, it is me you have to thank for this.
These, then, are the considerable services,
Most Glorious Successor of the Prophet, which I
render the pious people, the useful producer
of the extract, and even the plaintiff himself.
And what do I receive in return? If one compares
the low price I sell the nostrum for with
the expenses I incur conserving it and travelling
around to sell it, one will see that my
thieving earns me but a pittance,
Chapter 1 Page 40
482
and that for next to nothing, or only
a barely calculable sum, I must endure
my opponent's slanderous accusations
as well as the rogues and robbers he
sends out against me. Through this
vilification I am woefully deprived
of my good name, upon which people set
such value, so that honest people begin
to think twice about whether to buy
from me or not. I am thus a martyr for
the greatest good of the world. And if
an action is the worthier the more one
must sacrifice to perform it, then mine
is one of the worthiest. I should not
like to be robbed of the honor of martyrdom,
were it not for the fact that
the dishonour that martyrdom brings on
my trade obstructs my practice of it
and inflicts injury on the common good.
I therefore request Your Majesty to order
that henceforth everyone acknowledge
my trade to be an honest one, under pain
of punishment; and that the plaintiff
be obliged to not only apologize to me,
make reparation of honor, and give
public thanks for the service I have
rendered him, but also in the future
allow me to steal from him as much
as I like.
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483
Thus argued the market crier. How would
Mr. Reimarus, how would every justice-
loving man have judged? - Just so
judged the Caliph. He had the useful
man hanged.
Königsberg,
October 1791* J. G. Fichte
_______________________
* The reason why this essay has been
published with such a delay need not
concern the reader. It is just that an
indication of the date on which it
was completed seemed necessary, so that
the author should not be reproached
for not having taken into account the
recent literature that has appeared on
this subject, e.g. by Mr Müller in
Itzehoe and by Mr von Knigge.
Translation by: Martha Woodmansee
Source: Berlinische Monatschrift (1793), 443-482
Citation:
Fichte: Proof of the Unlawfulness of Reprinting, Berlin (1793), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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41 translated pages
Chapter 1 Page 1
443
When we eliminate bad reasons we make room for
better ones. Such was the verdict handed down recently
by a court held in high esteem for its rank and, even more so,
its justice. And so too thought the author of the essay,
“Publishing from the Perspective of the Writer, the Publisher,
and the Public, Reconsidered,” in the Deutsches Magazin
in April, 1791. It seemed to Mr. Reimarus that the illegality
of reprinting books had not yet been proven by the arguments
advanced so far, and by appearing to defend the practice
he hoped to challenge scholars to come up with better ones.
For he cannot possibly have meant his position to be taken
seriously; he cannot possibly have wanted to see the defense
of a practice prevail which fills all right-thinking
minds with loathing.
His essay is divided, according to the nature of
the subject, into two questions: one concerns the
______________________________________________________
Berlinische Monatsschrift 21 (1793)
Chapter 1 Page 2
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legality and the other the utility of
reprinting. Regarding the former he claims
that no one has yet demonstrated that a
writer - or his representative, the
legal publisher - has a right to
prohibit reprinting on the basis
solely of his perpetual property in his book,
hence that the authority to
reprint would naturally follow. Consequently
the question of whether reprinting should
be allowed in civil states after being
rejected in the court of perfect justice
would depend on the answer to the further
question of whether it was a useful practice.
Mr. Reimarus answers the latter question
affirmatively, and thus the former as well.
At the same time, however, he does also
suggest a number of restrictions on the
general permissibility of reprinting which
favor the author and his legal publisher.
Mr. Reimarus - for admittedly we
did not consider it necessary to check the
authors he cites in support of his position,
since we naturally could assume that he used
their arguments and that the most recent
defense of the position, namely his, would be
the most convincing - Mr. Reimarus, then, has
Chapter 1 Page 3
445
not demonstrated, nor attempted to demonstrate, that
no such perpetual ownership by the author is
possible. He has rather just said that no one
has so far demonstrated its existence, and he
has presented a number of proceedings that in his
opinion contravene the generality and thus
inviolability of such a right based
on ownership. Thus we need not follow him
step by step and meet each of his arguments
separately. For if we can simply prove the
existence of such a perpetual ownership of the
text by its author, then what Mr. Reimarus requires
will have been provided and he himself may
undertake to reconcile his examples with the proof.
Furthermore, we will not need to respond to his
demonstration of the utility of reprinting, since
this will no longer be relevant; for whatever is
plainly illegal ought never to occur no matter
how useful it may be.
The difficulty of demonstrating that an
author has perpetual property in his book arose
from the fact that we have nothing comparable to
books and that things that appear to be more
or less similar differ a great deal on many accounts.
Chapter 1 Page 4
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This explains why our proof will
unavoidably have a somewhat sophistical
appearance, one we will however do our
best to polish up. Let the reader not
become suspicious on this account, for
our proof is most easy to clarify and
confirm in concreto. - There are after all
a good many maxims in circulation on
this subject that all informed and
thoughtful people with no vested interest
in the opposite view accept and according
to which they judge others' and their
own actions. Now, if all of these maxims
can be easily and naturally deduced from
the principle we will be asserting, then this
will serve as a test of its validity, and it
will become clear that it is this very
principle that was at the root of all our
judgments in these matters, however obscure
and undeveloped they may have been.
To begin with, then, the principle: We
are the rightful owners of a thing the
appropriation of which by another is physically
impossible. This is a proposition that is
immediately self-evident and needs no further
proof. And now to the question: Is there
anything of this sort in a book?
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We can distinguish two aspects of a
book: its physical aspect, the printed
paper, and its ideal aspect. Ownership
of the former passes indisputably to the
buyer upon purchase of the book.
He can read it and lend it as often as
he likes; he can re-sell it to whomever he
wishes, and for as much or as little as he
wants or can get; he can tear it to pieces
or burn it - and who could quarrel with him?
But since people seldom buy a book for
such purposes, even less seldom just to
display its paper and print or to
paper the walls, they must assume that
when they buy a book they are also
acquiring a right to its ideal aspect.
This ideal aspect is in turn divisible
into a material aspect, the content of the
book, the ideas it presents; and the form
of these ideas, the way in which, the
combination in which, the phrasing and wording
in which they are presented. It is apparent
that simple transfer of the book to us does
not yet confer ownership of the former, for
ideas cannot simply be handed over or
bought for cash. They do not become ours
just by our picking up a book,
Chapter 1 Page 6
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carrying it home, and putting it
in our bookcase. In order to appropriate
the ideas a further activity is necessary.
We must read the book, think through its
content - insofar as it goes beyond
common knowledge - look at it from
various points of view, and in this way
assimilate it into our own pattern of thought.
However, since we would not be able to do this
without possessing the book, and since we did
not purchase it just for the sake of the paper
it contains, buying it must accordingly also
confer on us the right to appropriate its
content as well. By purchasing the book, that
is, we acquire the possibility of
appropriating the author's ideas; but to
transform this possibility into reality, we
must invest our own labor. - Prior to the
publication of his notable works, then, and
for a considerable time thereafter the ideas
of the premier thinker of this and the
previous century, and most probably of all
to come, were the exclusive property of their
author. No purchaser acquired the ideas
contained in the "Critique of Pure Reason"
in exchange for the money he paid for the volume.
There are now some clear-sighted men
who have appropriated these ideas - probably
not by buying the book but certainly by
Chapter 1 Page 7
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assiduous and rational study of it.
Such study, it may be said in passing,
is the only fitting recompense for the
instruction of minds, whether oral or written.
The human mind has an inborn propensity to
elicit agreement with its own pattern of
thought and any even apparent satisfaction
thereof is experienced as the sweetest
reward of the effort expended. For who would
want to teach to bare walls or write books
that nobody read? It would be absurd to
consider the money one was paid for such
instruction as equivalent in value. It is simply
compensation for the sums a teacher must pay to
those who, while he is thinking for others,
hunt, fish, sow, and harvest for him.
What is certainly offered for sale through
the publication of a book, then, is first of all
the printed paper, to anyone, that is, who has
the money to buy it or a friend who will lend it
to him; and secondly, the content of the book,
namely to anyone who has enough brains and diligence
to appropriate it. As soon as the book is sold,
the former ceases to be the property of the
author (whom we can still consider here as
the seller) and passes
Chapter 1 Page 8
450
exclusively to the buyer, since it cannot have
more than one lord and master. The latter, however,
the book’s content, which on account of its ideal
nature can be the common property of many, and in
such a manner that each can possess it entirely,
clearly ceases upon publication of the book to be
the exclusive property of its first proprietor (if
indeed it was so prior to publication, which is not
always the case with some books nowadays), but does
continue to be his property in common with many others.
What, on the other hand, can absolutely never be
appropriated by anyone else, because this is physically
impossible, is the form of the ideas, the combination
in which, and the signs through which they are presented.
Each individual has his own thought processes,
his own way of forming concepts and
connecting them. This we take as a presupposition,
as it is generally recognized and accepted by all
who understand it, and because we are not here
writing an empirical study of the mind. All that
we think we must think according to the analogy
of our other habits of thought; and solely through
reworking new thoughts after the analogy of our
habitual thought processes do we make them our own.
Without this they remain something foreign in our minds
Chapter 1 Page 9
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that connects with nothing and affects
nothing. It is more improbable than the greatest
improbability that two people should ever
think about any subject in exactly the same way,
in the same sequence of thoughts and the same
images, when they know nothing of one another. Still,
this is not absolutely impossible. What is
absolutely impossible, however, is that someone to
whom ideas must first be imparted by another should
ever assimilate them into his own system of thought
in exactly the form in which they were given. Now,
since pure ideas without sensible images cannot be
thought, even less are they capable of presentation
to others. Hence, each writer must give his thoughts
a certain form, and he can give them no other form
than his own because he has no other. But neither
can he be willing to hand over this form in making
his thoughts public, for no one can appropriate his
thoughts without thereby altering their form. This
latter thus remains forever his exclusive property.
From this follow two rights of the author:
not only, as Mr. R. would have it,
the right to prevent anyone from disputing
his ownership of this form (the
Chapter 1 Page 10
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right to demand that everyone recognize him as
the author of the book), but also the right to
prevent anyone from infringing upon his exclusive
ownership of this form and taking possession of it.
Yet before we draw further conclusions from
these premises, let us first subject them to
their test. - Up until now writers have never
taken it amiss that we make use of their
texts; that we share their use with others;
that we even establish lending libraries with
their books, though this is obviously to their
disadvantage (for we are still considering them
here as the sellers). And if we tear the books
up or burn them, a man of reason will be offended
only if it is likely that we have done so as an
expression of scorn. So far, then, writers have
always granted us complete ownership of the
physical aspect of their texts. Equally, they
have taken no offense when, in the case of
scholarly works, readers appropriated their
principles, presented them from different
points of view, and applied them to different
subjects; or when, in the case of light reading,
people have imitated the books’ manner,
Chapter 1 Page 11
453
which is something completely different from their
form. They have thereby conceded that
the ownership of ideas can also pass to others.
Yet it has generally always been considered
contemptible to copy word for word without
giving credit to the actual author, and
writers who do so are branded with the
disgraceful name of plagiarist. It is clear
that this general disapproval is not leveled
against the intellectual poverty of the plagiarist,
but rather against something immoral in his
behavior, because were the former the case
we would simply pity him without despising him.
Nor is the immorality of his act - and the reason
for giving him this ignominious name - a matter of
his selling something that has already been sold
and in this way cheating buyers out of their
money. This is apparent from the fact that our
bad opinion of him in no way diminishes when
he has copied from a very rare book such as
could be found only in a large library. That the
injustice is also not, as Mr. R. might hold, a
matter of the writer's authorship having been
denied follows from
Chapter 1 Page 12
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the fact that the plagiarist does not actually dispute
his authorship but only ignores it. It would be equally
fruitless to seek the root of the injustice in his
failure to pay the author due respect by omitting
to name him as he should have, since the plagiarist
is no less a plagiarist when he copies the text of an
anonymous writer. And we can confidently ask any
man of honor if he would not be ashamed just to
imagine the possibility of copying, say, from
the manuscript of some unknown, deceased person
or from a book of which he was the sole owner.
From all that has been said we can see that
these reactions cannot possibly stem from anything
but the idea that the plagiarist takes possession of
something that is not his. - Why then do we think
so differently about employing an author's own words
and using his ideas? In the latter case,
we make use of that which can be our joint property
with him and demonstrate that this is so
by giving it our own form. In the former case, we
take possession of his form, which is not ours,
but his property exclusively.
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We make an exception in the case of citations.
And we make it not only for the type of citation
which merely reports that a writer has discovered,
proven, or presented such and such a thing and,
without either appropriating his form or propounding
his ideas, simply builds upon them; we also make an
exception for citations that employ the author's
very own words. In the latter case we actually
take possession of the author's form, but without
passing it off as our own, so this is of no matter.
The authorization for this seems to be based on
an unspoken agreement among writers to cite each
other by direct quotation of their own words. But
even here no one would approve of anyone
copying out particularly long passages where it
was not very evidently necessary. Finally, we are
only half-justified in including among the exceptions
the anthologies, the witticisms (esprits) – collection
of which generally does not require much wit - and
other such little pilferings which go quite unnoticed,
since they neither help nor harm anyone very much.
No instructor would tolerate someone printing
his lectures, and yet none has ever
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objected to his listeners attempting
to appropriate his ideas and principles
and spread them in oral or written form.
What is this distinction based on? In the
latter case, people present his ideas,
which have become theirs through their
own reflection and through assimilation
into their particular pattern of thought. In
the former case, they take possession of his
form, which can never become their property,
and they thereby encroach upon his absolute right.
And now to apply these principles -
which have been a priori proven and
a posteriori tested as to their capacity
to explain what is considered just in these
matters - to the relationship between writer and
publisher! What does the former cede to the
latter when he hands over his manuscript?
Is it perhaps ownership of the manuscript?
But scholars will admit that this generally
speaking is not worth the money. And why do they
not permit themselves to sell several copies
of one and the same manuscript to several
different publishers? Is it perhaps ownership of
the ideas contained in the manuscript that is ceded?
But this cannot be conferred simply by handing
over the manuscript - and publishers would seldom
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be well served by this in any case. Ownership
of the form in which the ideas are expressed
is even less conferrable, for the form is and
remains the exclusive property of the author. - The
publisher, then, does not acquire ownership of
anything at all through his contract with the
writer, but rather under certain conditions only
the right of a particular usufruct of the writer's
property, that is to say, of his ideas in their
particular form of expression. He is authorized to
sell to whomever he can and wants, not the author's
ideas and their form, but only the possibility of
appropriating the former thanks to their appearance
in print. In all respects, then, he acts not in
his own name but in the name and by
mandate of the author.
These notions are evident in generally
accepted maxims. Why do we generally fault
even the legitimate publisher when he prints
a larger number of copies than arranged with
an author? The author’s right to prohibit this
is based on a contract, to be sure,
a contract, however, granting not ownership
but only usufruct. The publisher can at most be
called the owner of this usufruct. -
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Why then is he criticized for arranging
a second edition without the author's permission?
How, when the author has neither added anything new
nor made any revision, can he demand another fee
from the publisher just for granting permission
to print a new edition? Would these maxims not
be contradictory if we assumed that the book
was the property of the publisher instead of
remaining the perpetual property of the author,
with the publisher acting only as his representative?
Would it not be contradictory for the public
to seek redress against the author of a book rather
than its publisher when, having been
deceived by a grand title, it buys a book
filled with nothing but a poor patchwork of
common knowledge culled from all the best-known
books? And we do indeed have the right to
complain, for we did not intend to buy but
a few pages of paper printed with letters
but also, at the same time, the possibility
of informing ourselves about certain matters.
This is what we were promised but not given.
We have been duped; we have wasted our money.
But was it not the publisher we paid the money
to, and was it not he who gave us this vacuous
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book in exchange? Why, then, do we not
address ourselves to him, the retailer,
just as we do when we buy anything else? Why
blame the poor author?.. This is how we
would have to think if we did not think of
the publisher as just the writer's representative,
as trading with us in the author's name and,
when we feel we have been cheated, as having
deceived us in the author's name, at his bidding,
and often without the least malice of forethought.
This then describes the relation among author,
publisher and public. And how does the reprinter fit
into the picture? He takes possession not of
the author's property, not of his ideas
(for the most part he is incapable of this, for
if he were not an ignoramus he would pursue a more
honest trade), and not of the form in which
the ideas are expressed (this he could never do
even if he were not an ignoramus), but rather of the
usufruct of the author's property. He acts in the
name of the author without any mandate from him,
without having reached some agreement with him,
and appropriates the benefits inherent in this
representative function. He thereby usurps a
right to which he is not entitled and
hinders the author in the exercise of his
absolute right.
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Before drawing a final conclusion, we must
remind ourselves that it is not a question
here of the harm that the reprinter may
inflict on the author, either directly or
indirectly, by acting as his representative. For
however often we could show that neither the
author nor the publisher suffers any harm - that
it is even to the author’s advantage to be
frequently reprinted and that his fame is thereby
spread through all the German lands, from the
towers of learning to the remotest
hamlet in the provinces, from the scholar's
study to the artisan's workshop - would
this make just what is unjust? Do we have a
right to act in someone's interest when it is
against his will and rights? Everyone is perfectly
entitled to cede nothing of his rights,
however much this may harm him.
When will people ever develop a feeling for
the noble idea of justice, without any regard
for utility? - It should be further noted
that this right of the author, on which the
reprinter encroaches, is not based, as Mr.
Reimarus believes, on a supposed contract
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between author and public, and some Jesuitical
mental reservation contained therein,
but rather is his natural, inborn, and
inalienable right of ownership. That we
would not wish to see such a right infringed may
simply be assumed; it need not be stated
explicitly. On the contrary, one would need to
state as much if one wished to forego exercise
of this right.
Supposing all of the foregoing to be proven,
and considering that anyone is a thief who
usurps the use of others' property for his own profit,
then the reprinter is without doubt a thief. If,
moreover, a theft is the more unpardonable when
it involves things that by their very nature
cannot be kept under lock and key,
then the reprinter's theft is one of the most
unpardonable, for it involves something which
necessarily lies open to the public,
like air and ether. And if, finally, a theft is
all the more unpardonable the nobler the objects
it is perpetrated on, then it is the most unpardonable
of all when it involves things that are creations of
the mind. This is why the term “plagiarism,” which
originally meant kidnapping, has been applied to
the theft of books.
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And now to some of Mr. Reimarus's examples!
“Just who,” he asks, “has the usufruct
of the author's perpetual property in the case of
writers of old; who, for Luther's translation
of the Bible?" - When the owner of a particular
thing and his heirs and successors are
deceased or cannot be located, then
society becomes the inheritor. If the latter
wishes to relinquish its right and let the
thing become the common property of all, or if
this is what the owner himself wishes, -
who can prevent it?
“Would it be considered theft of the
author's property in his book,” continues Mr. R.,
“if someone were to make a single or several
handwritten copies with the intention of
selling them?” Considering that there are so few
booklovers who would prefer a handwritten to a
printed copy; that, therefore, neither the
author nor the publisher suffers significant
injury from this method of reproducing copies;
that the profits from this painstaking endeavor
are not large and the selling price is generally
but meager recompense for the effort expended, so
that the copyist's illicit greed would thus be
the less noticeable; then perhaps both
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author and publisher would just as soon keep silent.
And yet if we accept the validity of the above mentioned
maxims, then every usufruct of the book in fact remains
unjust, no matter how slim the profits.
Those who would like to own the book in a handwritten
copy, or the copyist himself, ought to negotiate
directly with the author. - If the authors of old
failed to give consideration to the possible usufruct
of their authorship, or, being uninterested in
exercising their rights, they left the option
open to anyone who wished to do so to make copies
of their books, giving their approval by their silence,
nonetheless they had the absolute right - as does
everyone - to relinquish their rights. Had they
so wished, however, they could just as well
have exercised their rights, as do our contemporary
writers; for what is just today was always so.
When these principles are applied to
things that have often been compared and
confused with books they become even clearer. For
instance, books have been compared with products of
the mechanical arts, and reproducing such products
to the detriment of their inventor with the reprinting
of books. - How fitting or unfitting this comparison
is we will see directly. A product
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of the mechanical arts also has both a physical aspect -
the material from which it is made, such as steel, gold, wood,
and the like - and an ideal aspect - the concept
underlying it (the rule according to
which it has been made). It cannot be said of
this ideal aspect that it has a form unique to
the maker because it is itself a concept
which underlies a specific form - the form taken
by the material, the relationship of the individual
parts to the realization of the object's intended
purpose – and hence can be defined in only one
way, as befits a precisely conceived concept.
Here it is rather the physical aspect that,
insofar as it is not determined by the underlying
concept, takes on an individual form. This individual form
- insofar as it is not related to
the object’s intended function - is responsible for
the neatness, the elegance, the beauty of the crafted
object; it causes us to distinguish the workmanship
of the English craftsmen, or of any particular
master, from that of all others even though we are
not able to clearly state what accounts for the
difference. We can also find this kind of individuality
of the physical form in books, in the purity and
elegance of the printing, for instance. And in this
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regard the book is a product of the mechanical arts
and as such can be subsumed under the easily deducible
rules of these arts.
Assuming, as is commonly done,
that through the sale of a thing ownership of
all that is physically appropriable passes to
the buyer, then what is passed on to the buyer
through the sale of such a work of mechanical art?
Without doubt, ownership of the material, physical
aspect and along with this the possibility of using
the work for the desired purpose - assuming the buyer
so wishes, understands this purpose, and is thus
able to realize it. The possibility of appropriating
the concept underlying the work (the rule according
to which it is made) is not the purpose of the
sale, nor generally speaking of the purchase either,
as it is in the case of a book, where this
purpose is evident. Furthermore, this possibility
passes by way of the sale not to every buyer but
only to those who have the necessary knowledge
to exploit it. However, ownership of the
underlying concept is not passed by way of
the sale at all; rather, in order to appropriate
this concept the buyer must take active steps,
investigate the work, perhaps take it apart,
think about it, etc.
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Yet it is not only physically possible
but often very easy to discover the rule
according to which the work was made. To then
endow this underlying concept with a unique form,
one must be an artisan oneself, and that too in a
particular craft. The form as created by the original
maker can never be physically exactly duplicated.
But this is of no consequence, for the differences
are usually not even perceptible; and often the
second maker will give the object an even finer form.
It follows that one can acquire ownership not only of
the material object but also, under certain circumstances,
of the concept according to which it was fabricated.
And since one has the right to use one's own property
however one wishes, undoubtedly one also has the right
to reproduce this work of mechanical art. However,
the exercise of this right is not fair. It is not fair
that the man who invested his money and years of hard
work and effort should find himself robbed of
the fruits of his labor as soon as he goes
public with the results of his extensive work,
results that are of such a nature that anyone
who sees them can appropriate them. But
since in questions of profit we cannot count
very much on people's fair-mindedness, the State
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steps in and, through an explicit
law called a privilege, transforms what
was a question of fairness into one of rights.
Since such a law curtails the natural rights
of others and they are thereby robbed of their
rights - especially so in that they are forced
to do what formerly depended on their good
will and could have brought them merit, so
that at the least they are robbed of earning
this merit - therefore the state retracts this
law the moment its aim of compensating the
original inventor has been achieved, and
gives the people back their natural rights,
which they may again exercise through
reflection and study.
Such a privilege, then, pertains to
exploitation of the acquired underlying concept. The
only book privilege that would be comparable to it
would be one that prohibited, say, the writing
about particular topics, such as metaphysics
or natural philosophy, for a period of ten years. -
Could it perhaps be, as it would seem from
his recommendations concerning book privileges,
that Mr. R. has confused books with works of
mechanical art, as though nothing more were needed
for their production than to have a recipe in mind,
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agile fingers, and some paper and ink?
The right of the buyer to reproduce his
purchase extends as far as does the physical
possibility of appropriating it, and this
decreases the more a work depends on the form,
which we can never appropriate. This
gradation proceeds by imperceptible degrees
from the common study lamp to Correggio's
painting of the Night. The latter never
sought a privilege and has nonetheless never
been copied. To be sure, every painter can put
colors on a canvas, paint light and shadow,
a child and a young woman. But that is not
what interests us; what interests us is rather the
indescribable yet perceptible form of the
presentation. - Engravings of paintings
are not reproductions: they alter the form.
They end up as engravings and not paintings;
but whoever wants to see them as equivalent is quite
at liberty to do so. Even an engraving of a previous
engraving of a painting is not a reprint, for each
artist gives his engraving his own unique form. It would
only then be a reprint if someone took possession of
someone else's plate and printed from it.
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Now, following this distinction, the question
is: what is a book privilege? By definition a
privilege is an exception to a generally
valid natural or civil law. Up until now there
has existed no civil law concerning the ownership
of books. Hence a book privilege must be an
exception to a natural law. A privilege of this
sort says that a certain book is not to be reprinted.
It thus presupposes a natural law that
would have to read as follows: everybody has the right
to reprint every book. - Is it really true though
that the right to reprint is recognized as a generally
valid natural right even by those into
whose hands humanity has entrusted the safekeeping
of its rights, i.e., the governing authorities;
is it really true that even scholars recognize
this as a natural right? For what else after all can
the request for a privilege mean than, “I acknowledge
that, from the day of publication of my work,
whosoever wants to has the undisputed right
to appropriate my property and every possible use
thereof, but I request for my own benefit that
the rights of humanity be restricted.” Has anyone
ever accepted having to have a permit
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to pass by highway robbers unharmed? - “But
a book privilege is no pass against
robbers, it's an escort by hussars,” they tell me.
If this were the case, if it even could be the
case in countries where thieves do not just
roam unchecked through the forests, as they do
in Arabia, but can be hauled in at any moment by
the authorities, then we would be facing quite
a different investigation.
The Tr***[Trattners], Sch***[Schmiedes],
the W***[?] are certainly thieves, but they are privileged
ones. They themselves are not - for we will grant the
observation that one of the two privileges, either
the one that forbids or the one that permits reprinting,
must be nonsensical - they themselves, as I was saying,
are not in the least guilty. Ignorant of what is
lawful and unlawful - this being too profound a
question for them - they turned to those who should
know, were told, and believed what they heard.
Of course, the English merchant was not especially
pleased when a French corsair came along and
took away his ship and cargo. He complained
about this injustice. To which the pirate responded,
“This is no injustice, this is wartime justice,”
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and showed him his corsair’s license. And while
the Englishman was busy examining it to
convince himself of the legality of the acts he was
being subjected to, the other pilfered his
pockets, and rightly so.
But with what right does the pot call the
kettle black?.. Where is the defender of reprinting
who can explain this to us? - “It would be asking a
lot of a government,” so they say, “to mandate
that expensive foreign goods be imported into
its lands.” That would indeed be asking a lot,
but it would not be so unfair to expect it to
get along without them altogether if they are too
expensive. Joseph II certainly had a perfect
right to forbid the import of Dutch herrings
into his lands. Who would dispute this? But
would he also by the same token - considering
that Dutch herrings are just not reprintable -
have had the right to send out pirates to waylay
the Dutch ships and take their catch? And if
this expensive foreign commodity – for books in
this system are no more nor less commodities than
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herring and cheese – is not to be imported
at all, then from what is one to make the
reprints?.. Oh yes! we will of course take
care not to prohibit the import of foreign books
until after we have reprinted them.
“With regard to the author's welfare,”
so the argument continues, “it is completely
irrelevant in a country that forbids the import
of his legitimate edition whether or not a
reprint is sold, since he could never make any
earnings from such a country anyway.” And they
are right, and all the more so in a system
in which nothing is illegal but what causes harm.*
* After I had fully completed this essay, I came
across the disquisition by Prof. Kant, Berlinische Monatsschrift,
May 1785, "On the Injustice of Reprinting Books",
which for some chance reason I had never read
before. It is very encouraging to find myself
on the same road as him, without having previously
known anything about the course he was taking.
He too refuses to base this proof on some
kind of unspoken contract between the author
and the public; rather, at the very beginning
of his essay he makes it clear that such a proof
is absolutely impossible, were one to presuppose
that the publisher is the owner of the book and
that he could therefore transfer his property
right to the [book]seller. The conclusions of his essay
- namely, that the publisher must be regarded
not as the owner, but
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If everything has now been clearly demonstrated
which needed demonstrating - that the author retains
perpetual ownership of his book and
that he has a perfect right to prohibit anyone
from profiting against his will from what
by its very nature remains his;
that therefore the reprinting of his work is an
evident injustice and even one of the most unpardonable
- then our investigation of the permissibility of
reprinting has obviated the need to ask whether or not
it has any utility, and we can refrain altogether from
answering this question. Neither Mr. R. nor the public
______________
rather as the author's representative, and that he
thus cannot transfer a right to the seller which he
did not have in the first place - as well as his
application of them to works of art, coincide
precisely with our own conclusions. Kant bases his
proof thereof on the fact that a book is not an opus
but rather opera (a mere use of the
author's faculties) - Now, that this is what a book
really is, can be seen clearly from the way that the
author must give it its particular form, so that
it is through him - and only in that particular form
which he has defined for it - that the book is able
to exist. For the concept of opera covers all that
which can only be completely defined by our individual
frame of mind; the finest painting, on the other hand,
is opus because its essence (its beauty)
depends on a physical form and could therefore rightly
be copied, if it were possible. (The intellectual aspect
underlying it, e.g. the idea of the whole, its
character, expression, and so on, does indeed depend
on [the painter's] frame of mind, but this is not
what actually matters when considering a painting.)
Chapter 1 Page 32
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will object, then, if we recount a
parable instead of pursuing this inquiry.
What it can explain – since, as noted above,
we have nothing remotely similar to books –
what after all that has been demonstrated it
still has to explain will become apparent.
In the time of the Caliph Harun al Raschid,
famous for his wisdom in "Thousand and One
Nights" and elsewhere, there lived, or could
have lived, a man who prepared an extract out of
heaven knows what herbs and salts which was
reputed to be good against every malady, and even
against death itself. Now, although it did not
exhibit quite all the potencies its inventor
boasted of - he himself remained a bit on the
sickly side - it was nonetheless an excellent
physic. Wishing to remain completely undisturbed
in his laboratory work, he did not care to get
personally involved in the commercial side of
the business and entrusted this to a merchant,
who was the sole distributor throughout the
land and who earned a goodly profit thereby.
This aroused the envy of his colleagues,
the other medicine merchants, who maligned
him and his extract. There was one among them,
however, who took a different approach
altogether. This fellow would waylay
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the monopolist's people when they were
delivering the nostrum from the chemist,
relieve them of their cargo, or even
steal it straight out of the warehouse.
And he was well able to do this, for he
was a strapping fellow. He thereupon
retailed it at all the fairs, in every
village and corner of the land, and since
he sold it cheaply and praised it high as
the sky, he did a very swift business indeed.
Whereupon the monopolist raised a hue and
cry throughout the land, and from time to
time, of course, as is wont to happen in such
circumstances, names like thief, robber, and
the like were bandied about which got back
to this fellow. The monopolist would gladly
have taken something back from the fellow,
but there was nothing much worth taking. He
kept setting traps to catch the thief, but
the latter was more clever and avoided all
his snares. In the end, though, as unbroken
good luck will make a man careless, he did
indeed fall into the hands of his enemy
through his own heedlessness and was brought
before the Caliph. Here the medicine merchant
lodged his complaint against the fellow,
which followed much the same lines as the one
lodged by our publishers against the reprinters.
The fellow was
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not to be intimidated - through his peddling
activities he had grown in audacity and
acquired a certain eloquence - and he conducted
his defense as follows:
Most Glorious Successor of the Prophet!
I like to proceed in a principled way. As
everyone knows, the only true measure of the
excellence of our actions is their utility.
The more widespread and significant the
benefits of an action, the more virtuous that
action is. There are still a few people, it
is true, whose muddled minds construct an
artifice they call the Right, I believe. This
is a phantasm that can never be realized in
life, for can one not starve to death in the
midst of righteousness? Heaven forbid that
such old-fashioned notions as these should
defile the enlightened times of Your Majesty's
glorious reign! - If, then, I prove that my
actions have engendered the most widespread
benefits, I will thereby have proved beyond
a doubt that they are also praiseworthy.
And this can be easily done. But is it really
necessary to show that my actions have the
most beneficial of consequences for the public?
I sell the nostrum much more cheaply
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than the plaintiff; the lowliest man can
thus afford to procure it, which he
cannot do at the high price demanded by
the monopolist. Through hard work and all
the arts of persuasion, I urge the extract
upon the unenlightened masses, and I burn
with such ardor for their greater good that
I all but force them to regain their health
through the aid of this healing tonic. What a
service to suffering humanity! Could I but
paint a vivid picture for Your Majesty of
the groans of the suffering, the rattling
throats of the dying who have been saved by
the physic they bought from me! To how many
countless children have I not given back
their fathers, who were already at death's
door, and thus preserved for them the
opportunity to be shaped into good citizens,
to educate their own children to become
good citizens in turn, and through them,
all of their descendants. Just calculate all
the work that everyone whose life has been
extended by several years through this
miracle medicine can perform for the culture
of the land with these additional years; just
imagine the even greater culture that will
become possible thereby, and so on ad infinitum.
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Just tally up the number of children each
one of them can still procreate in these years,
and the children of these children; and then
figure the total growth of humanity and culture
which results from all of this and which would
have been absolutely impossible had I not stolen
those miraculous drops from the plaintiff.
Granted, some slanderous tongues claim that
the nostrum I sell is generally a bit on the
spoiled side. And if I must admit that there is
something to this accusation - I am a lover of
the truth - yet truly the fault is not mine. I
would prefer, if I could, to endow it with yet
greater potency so that everyone would buy from
me alone and the plaintiff would lose all his
customers - and this only out of my love for
the greatest common good. But how, when I am
forced to be constantly on the run from my
opponent and when my actions are subjected to
such vilification, forcing me to work with the
most dissolute of companions, how should I
be able to conserve the physic with the care
it deserves? If one day my trade should be
adjudged completely honorable and trustworthy,
as I am hopeful that it will on account of
the great service it renders, then I will
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also be in a position to pay greater attention
to the careful conservation of my product.
I am accused of inflicting damage on
the producer of the nostrum, and thus
indirectly on the public, in that the plaintiff,
if I continue taking away his drops, will
necessarily be reduced to poverty and no
longer be able to pay the chemist, who as
a consequence will have to stop production.
But those who so argue do not know their man!
He will not stop production on this account.
It is after all his passion, and he obviously
just works for glory. On the contrary,
the more I take away from his middleman and
the less the latter can pay him for his
physic, the more he will have to work to
make ends meet and the more, consequently,
of this healing potion he will produce. And
is his fame not spread by me to the remotest
villages? Do I not trumpet his name in a
loud voice from my stall at all the fairs?
Is his name not on all my tins and jars in
large gold letters? Is this not glory
enough for him? Must he also have bread?
May he live on glory alone!
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And finally it is said that I cause
the plaintiff hardship. But I must confess
that here my blood really starts to boil. I
must say, my dear Sir, that you should be
ashamed of the unfairness of this accusation.
Have you not already earned enough from your
monopoly? Ah! if I could but share in the
losses you claim to have suffered! Why will
you not allow me to steal whatever I can from
you? Why will you not allow me to take a
few remains? And even since I have been doing
so more energetically, have there not still
been plenty of customers who prefer to buy
your expensive wares rather than my cheap
ones, either because of the supposedly
superior quality of your preparation,
which cannot amount to much, or out of
some old-fashioned prejudice in favour of
legitimate ownership and against
collaboration in the robbery of third
parties? As if I too, if you insist on
speaking of legitimacy in the first place,
did not acquire legitimate ownership of
your wares by dint of the effort I go to
to steal them!
Quite to the contrary, if you would
but look at the situation soberly, it is
to you that I have rendered the greatest
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service of all. You do not yet know
your chemist. Envious of the profits
you make on his nostrum, he has long
been thinking of taking over the
merchandizing himself. True, he needs
his time much more for producing this
physic of his; he understands nothing
about selling medicine; the few forays
he made ended very badly. Yet - and you
can take my word for it - he would have
robbed you of your trade, if, clever as
he is, he had not noticed my plot against
your stores and preferred to see you
rather than himself get robbed. Thus, if
you still have any control of your trade
at all, it is me you have to thank for this.
These, then, are the considerable services,
Most Glorious Successor of the Prophet, which I
render the pious people, the useful producer
of the extract, and even the plaintiff himself.
And what do I receive in return? If one compares
the low price I sell the nostrum for with
the expenses I incur conserving it and travelling
around to sell it, one will see that my
thieving earns me but a pittance,
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and that for next to nothing, or only
a barely calculable sum, I must endure
my opponent's slanderous accusations
as well as the rogues and robbers he
sends out against me. Through this
vilification I am woefully deprived
of my good name, upon which people set
such value, so that honest people begin
to think twice about whether to buy
from me or not. I am thus a martyr for
the greatest good of the world. And if
an action is the worthier the more one
must sacrifice to perform it, then mine
is one of the worthiest. I should not
like to be robbed of the honor of martyrdom,
were it not for the fact that
the dishonour that martyrdom brings on
my trade obstructs my practice of it
and inflicts injury on the common good.
I therefore request Your Majesty to order
that henceforth everyone acknowledge
my trade to be an honest one, under pain
of punishment; and that the plaintiff
be obliged to not only apologize to me,
make reparation of honor, and give
public thanks for the service I have
rendered him, but also in the future
allow me to steal from him as much
as I like.
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Thus argued the market crier. How would
Mr. Reimarus, how would every justice-
loving man have judged? - Just so
judged the Caliph. He had the useful
man hanged.
Königsberg,
October 1791* J. G. Fichte
_______________________
* The reason why this essay has been
published with such a delay need not
concern the reader. It is just that an
indication of the date on which it
was completed seemed necessary, so that
the author should not be reproached
for not having taken into account the
recent literature that has appeared on
this subject, e.g. by Mr Müller in
Itzehoe and by Mr von Knigge.
Translation by: Martha Woodmansee