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Pluquet's letters, Paris (1778)
Source: Bibliothèque nationale de France: Mss. Fr. 22063 n°68, 68bis, 68ter
Citation:
Pluquet's letters, Paris (1778), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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14 translated pages
Chapter 1 Page 1
(I)
___________________________
___________________________
LETTER
TO A FRIEND,
On the Council's Decrees of 30 August 1777,
regarding the book trade and printing.
I have, Sir, received the Decrees of the Council on
the book trade which you sent to me, and I have read them
with the eagerness which I could not but feel, in view of
how satisfied you seemed to be with them. You are delighted
by this new legislation; you regard it as a bulwark that
has been raised against the greed of the booksellers of
Paris, because of the useful spirit of competition which
it establishes between these and the provincial booksellers;
and you expect that I will share your approval for it. Alas,
I must on the contrary confess that in your support for
it I think there is more enthusiasm that reflection...
[...]
Chapter 1 Page 41
(1)
______________________________________
______________________________________
SECOND LETTER
TO A FRIEND,
On the current affairs of the book trade.
So you are starting, my dear Sir, to be not so
very enthusiastic anymore about the new actions
regarding the book trade; & you confess to me that
my Letter has at least contributed to make you examine
a bit more attentively what you had only seen previously
through the glow of the preamble to the Decrees. If
your vote can infuse me with self-esteem, it must though
be tempered by the opposition to my Letter offered by
persons whose opinion certainly deserves consideration.
I have just received the Impartial Discourse from a man
of letters who presents himself as the Apologist of the
Council Decrees, & who claims to refute my first Letter,
which you have apparently allowed to circulate. He states
that he does not know me personally, & I have no trouble
in believing that; I protest that I do not know him either;
this way we can fight each other with equal weapons, & no
one can suspect us of quarrelling because of personal
animosity. He adds that he is impartial, but I wouldn't
quite agree with that; at any rate unless we were to
settle on one constant meaning for this ambiguous expression.
If by being impartial he has in mind that one should be
able to discuss, keeping one's temper cool, the pros
and contras, without [taking
Chapter 1 Page 42
(2)
taking sides, I confess that I am not impartial in that
regard, & that the author himself would have difficulties
persuading others that he has this quality, since he takes
up with such energy the task of defending the Decrees &
pulls out all the stops to make us admire them. If by
impartiality he understands the casting away of all party
spirit, of this ridiculous fanaticism which, when it causes
you to espouse an opinion, will listen only to what lends
support to that opinion, & shuts itself up to everything
that might oppose it; in this sense, just as one can be
impartial without being neutral, I must profess that I am
'impartial' like my opponent: I could even add that I am a
little more so than he is; because in his spirit & conscience,
he knows very well that he has only touched superficially
upon the most essential points of my Letter, that he has
limited himself to what he thought he could attack with
some hope of success, whilst prudently glossing over what
he despaired of being able to refute.
Since I have no desire to bore you with tedious repetitions,
I will not follow his discourse in all detail, I will content
myself with revisiting some of my main points, which basically
do settle the question decisively; points which the author seeks
to obscure, in order to distort the underlying idea; but which
it is possible to present in a new light, so as to convince one
fully and completely of their truth.
Literary Properties.
I start with this article, as it is the most important
one. One must do justice to the author of the Discourse; he
has exhausted all the resources
Chapter 1 Page 43
(3)
of his mind, in order to replace the simple, natural and
accustomed notions about property with wholly new ideas;
& which, if one were to accept them, would effectively
destroy what is referred to as property in the book trade.
After having contrived by all kinds of contortions to assure a
property of some sort to authors, look at what this property
finally comes down to; it is that an author is the proprietor
of his manuscript as long as he keeps it in his desk; that the
publisher to whom it is transferred is the proprietor of the
individual ream of paper onto which he has pressed the work [ouvrage];
which means that if one were to break into the author's desk
in order to carry off his manuscript; if one were to steal this
printed paper from the bookseller's shop; this would be a
manifest violation of property: risum teneatis amici?* I am
convinced that he himself was the first to laugh at this rare
discovery, according to which an author is the proprietor of his
work only to the extent that he is able to keep it locked up
behind double locks in order to rescue it from the avid glances
of the prying person who would like to appropriate it.
How could he fail to realize that a writer only composes a work
with a view to making it public; that when it is locked up in
his brief-case, it is for him as if it did not exist at all; that
the useful property does not start, properly speaking, until
the moment it is able to see the light of day, until it can be bought
and sold; that if at this moment it is possible for people to
steal it from him, under the pretext that the spirit, the style
and thoughts, once they have been brought to light, are no longer
endowed with a property right, then it would be true
_____
*) lat. "Hold back your laughter, my friends!", a famous
quotation from Horace.
Chapter 1 Page 44
(4)
to say that the author has never, at any time, held
any real property, given that it ceases at the very
moment that it starts to have some value for him. I would
be equally glad if someone were to tell me that I am
the proprietor of my field as long as I leave it to
lie fallow, without making it produce anything; but at
the very instant that the plant which I have sowed there
emerges from the soil & is exposed to the open air, all
passers-by are welcome to take possession of it. Let the
author of the Discourse expatiate after that on the mutual
war which the booksellers of different nations are waging
amongst themselves, in order to reciprocally get hold of
their respective works, though it doesn't ever seem to
occur to them to carry away our fields & our houses! I am
sure that he will exempt me from having to refute these
analogies of his, & that the proofs which I have given
for the inviolable right of literary property remain
valid in their entirety, since all that has been opposed to
them are such feeble responses. But I do have one incontestable
proof to bring up against the author of the Discourse, &
which will make all his elaborations go up in smoke: namely,
that in my Letter I was dealing with the Decrees of the
Council, & not with the personal ideas of our Adversary. Now,
the Council's Decree explicitly acknowledges this property
as it is held by authors; it enshrines it as perpetual; it
even gives authors a privilege which should last until the
day of the Last Judgement, if they have heirs who can
represent their interests. And if he calls this privilege
a favour [grace], (because it is normal to regard as favours
everything that we receive from our masters), it is at
the same time convenient
Chapter 1 Page 45
(5)
that it should be founded in justice; that this privilege
is due to an author to secure & maintain his property. Therefore,
all that I have put forward on this point remains fully valid; &
besides, however justified the metaphysical speculations of the
author of the Discourse were in this regard, it is clear that in
the current disputation, they are quite inapplicable in accordance
with the precise formulations of the editor of the Decrees.
Now, their apologist has certainly sensed this all right, &
it is a curious thing to see him trying to extricate himself from
this difficulty. This property, he says, this exclusive and perpetual
property is indeed granted to authors by the Decree; but it is without
consequence, because as they are unable to retain it unless they
should themselves start selling their own works, it does not seem
likely that they would wish to keep hold of an embarrassing &
onerous property. But has this writer realized that with this little
trick of his he was making the head of the judiciary play a disgraceful
role, in that the latter would seem to have been making fun of people
and robbing them at the same time? Because, really, it is as if he
had made him express himself in such terms as follows: « I know full
« well that, as far as you authors are concerned, it is impossible for
« me to take away your property & the perpetual & unassailable right
« which you have to your productions: so I will preserve it for you;
« but to this lasting preservation I will attach a condition which it
« will be almost impossible for you to fulfill; namely, that you
« will not be able to transfer it; that you will have to become retailers
Chapter 1 Page 46
(6)
« of your merchandise: & as this retail selling entails extreme
« inconveniences, the ennui of selling things piece by piece, the
« delays in obtaining revenues, the complications of delivery, the
« need for excessive credits, you will soon be ruined by it, and the
« example of two or three colleagues who have made this disastrous
« experience will suffice to dissuade the others. »
I think I would surely be insulting the honest magistrate who
presides over the book trade, if I were to attribute to him so vile &
mean a trick. Thus, I would much rather believe that he did seriously
wish to preserve a real property for authors, a reliable property which
can really be turned to use in practice, & not one that is chimerical
and illusionary in its exercise. Now, there is no other way that he could
preserve this property for them than by leaving them with a right which
is inherent in all property, that of being able to transfer it such as
one possesses it, in the same way that one possesses it, in all its
entirety. And here I come back to everything I said to you in my Letter
about the laws which regulate the transfer of properties - about these
universal laws, which are common to all peoples, & which it would be
absurd to try to distort as soon as one started dealing with literary
property. It would be futile & tedious to repeat what I have already
elaborated upon sufficiently.
On Privileges.
So let us now discuss privileges again, whose character, essence
and scope are so completely misunderstood by the author of the Discourse;
and this is so because he
Chapter 1 Page 47
(7)
likens book trade privileges to those which are sometimes
awarded for inventions of mechanical industry.
1º. A privilege, he tells us, is a favour from the
sovereign, which gives exclusive enjoyment for the duration
of several years. Well, no in fact! It is an act of justice,
it is the right of protection which the prince owes to all his
subjects, in order to secure their possessions against the enterprising
rapacity which would like to invade them. As soon as an author has
presented his Work to the depositories installed by the authorities, &
after these have assured themselves that it just contains things that
are useful, all they give him is the permission to print it; this
permission, by announcing the applicant's property, is in itself
an obligation to defend it: there is no need for a special law to
ensure that, for a special prohibition against infringing this
property, for a privilege which threatens with so and so a penalty
those who would dare to do such a thing. The general laws against
theft and usurpation ought to be sufficient. It is therefore not
just because he holds a privilege that an author can claim to have
been injured if his work is robbed or counterfeited; it is, rather,
because he is its proprietor; it is because the Administration must
defend him, & compensate for the powerlessness of the citizen who
does not have in his hands coercive or repressive powers, even if
it had not told him explicitly, by means of a document entitled
'privilege': I will defend you against usurpation.
2º. However, you may perhaps add, it is precisely for the
sake of that, that people apply for and obtain privileges.
Chapter 1 Page 48
(8)
No doubt about that; but does this privilege constitute
a property right? Every year, one month before the grape
harvest, the senior court official in our area issues an
ordinance prohibiting everyone from plucking a single bunch
of grapes from the vineyard of someone else, on pain of a
fine of 10 livres. Now, if there were no such warning notice,
would it really be so that any person would be entitled to
come along and pilfer my grapes? Does my exclusive right only
start when this bill has been put up? And if such an ordinance
did not exist, would I be less entitled to complain about the
thief who has robbed me? So what, then, is this ordinance? A
special announcement [intimation] of the general law, which
forbids people to take the goods of others, coupled with the
threat of a specific punishment for those who dare to do so
in spite of this prohibition. And this is exactly what a book
trade privilege is - it is the explicit declaration of such
individual property, any encroachments on which are prohibited
by the sovereign on pain of a fine of a thousand écus. Such a
declaration does not constitute the author's right; it confirms
it [elle le constate], it assures that the sovereign will uphold it,
that he will punish any acts of injustice which fail to respect
this property. Thus, it would be to turn all concepts on their
head if one were to argue, that if there were no such thing as a
privilege, every book given to the public would become common
property [un bien commun]; I would be just as pleased to be told
that without the fine of one pistole imposed by the senior official
of my area, my grapes would be public property for all the locals!
And so here we have the reply to these vague declamations which
seem so triumphant to the author of the Discourse: “Doesn't the King
have the power to grant
Chapter 1 Page 49
(9)
or deny to you the privilege?" Would you not dare to reply
to him: "Yes, of course he does, but in what sense?" Well,
in the sense that he can protect my property by this or that
means. Whether he does so by means of a privilege or by some
such other means which he deems to be suitable, that is for
him to decide; but in all cases he owes me some sort of
protection, since he is the public force of the law, & I do
not have myself the weapons with which to defend my goods.
"Your assets [fonds] belong to you, the King does not want
to dispose of them in any way, but he has done you the favour of
attaching a privilege to them." Oh! of course he could not want
to dispose of my assets, nay, he would not even be entitled to
do such a thing - But that is not everything: he must prevent others
from encroaching on them. It is for this reason alone that people
have always chosen to be governed by rulers; and when the prince
exercises this right of protection, it is not a favour he is
doing, but an act of justice.
3º. According to these principles, it should no longer be
necessary to hammer on with this faulty argument that, since privileges
are awarded only for for a specific period, they must cease once that
fixed term has expired. To do that would be to abuse all too plainly
of a confusion in the formulation, which has never, though, stopped
the very real distinction from being made - a distinction which is
known to everyone in practice. I had observed to you in my Letter,
that since the very beginnings of policing regulations in the book
trade, a categorical distinction has always been made between ancient
works which belong to no one, & new books whose authors were known
& who were therefore regarded as their proprietors. Privileges were
awarded for both classes
Chapter 1 Page 50
(10)
of books; but even though the name was the same, the
significance was totally different. For the ancient works,
it was a real restriction imposed on the common right; for
the new Works it was a safeguard for property. Since all
printers have the right to print these ancient books, no one
would risk the expenses and outlay required to produce an edition,
if the first person who undertook to do so were not guranteed
that he would have exclusive enjoyment of it. But since this
exclusive enjoyment goes against general law and inhibits public
freedom, it was convenient to set a term for it in proportion to
the outlay made by the publisher, to allow him to make a
legitimate profit, whereupon it is only just that natural liberty
should be restored. But as for writings which were the creation,
the property of a new author, when granting a privilege for these,
this did not entail taking away from anyone a right which no one
had in the first place; the award of the privilege simply secured
the right of the sole proprietor. The custom of fixing a term for
privileges on works of the first category, led to such a term also
being set for those of the second class. But if the diploma was
the same, it was because there was no room whatsoever for ambiguity;
it was because everyone ascribed different notions to the same word;
& that it was considered pointless to elaborate on them; it was
because this limitation, imposed on the former and the latter alike,
did not mislead anyone, since at the same time that the renewal of
privileges for ancient works was refused unless they were accompanied
by new notes which turned them into an altogether different work,
privileges were on the contrary renewed
Chapter 1 Page 51
(11)
without any difficulty whatsoever in the case of all
modern works [écrits] whose authors or publishers had just
obtained a limited privilege.
4º. The 'impartial' author of the Discourse has not
thought through his ideas properly when he argues that book
trade privileges are no different from the other privileges
which the King grants for machines or drugs. On the contrary,
there are very big differences which he has not perceived, &
which are set out in detail in the Mémoire by Linguet which I
heartily recommend to you to read. But, anyway, here are two
of them whose truth and relevance to the present case will
surely be felt by everyone. The first is that a privilege for
the invention of a secret medical composition or a work of
mechanics really does inhibit natural liberty, it raises obstacles
to the freedom which every man of genius should have to invent
and disover new things. And then, of course, I too might chance
to discover this drug, to devise this instrument, in the same way
as the person who presents himself as its inventor, & this is
something that has happened many times in the past. And yet, for
as long as the privilege which that person has obtained lasts, it
would be in vain if I were to argue that it is to myself alone
that I owe this discovery which so resembles his, for I would not
be allowed to sell mine. So here we have a privilege which restricts
the natural and civil right. If M. de Seignette, whom the author
of the Discourse refers to, had obtained a privilege for his
salt, it would have been in vain for M. Geoffroy to protest that
he had also created it by himself, for M. de Seignette alone would
have been able to sell it & arrange for it to be sold by pharmacists.
Well then, is it the same in the book trade? No, here it is precisely
the opposite: a privilege here leaves the whole elevation of genius
untouched, it allows the man of talent
Chapter 1 Page 52
(12)
to compose in all his liberty, & to compose in the same
manner, in the same genre, with the same taste. Thus, the
privilege that was granted for the Henriade does not prevent
any other poet from composing a poem on the Subjection of Paris by
Henri IV,* in the way that best appeals to him, but it does forbid
him to steal that of Voltaire. The privilege for Bossuet's Histoire
Universelle does not revoke the right of every other writer to compose
a Universal History according to the same plan, with the same views
as the renowned Bishop of Meaux, but it does prevent all others from
pilfering his work. Thus, it is approriate to set limits on privileges
for inventions, so that, whilst ensuring that their authors [inventors]
are properly remunerated, the public interest & the progress of industry
can also be protected; for the same reason no restriction at all should
be set on a privilege for a work which is always exclusively mine,
(since it is physically impossible that two persons, without one
copying from the other, should manage to write the same book word
for word), & the property to which should be permanently secured to me
by the law.
But that is not all - we now comme to the second difference, namely
that regarding these inventions which are provided with a privilege,
no other costs are involved apart from those of the invention itself;
there are no expenses other than those which are essential for the discovery.
But for any written composition whatsoever, even if it has been created
by a genius and taken to the utmost state of perfection that is possible,
the expenses which the author will have to incur have not even started
yet. Amongst these he must include the costs that are necessary to bring
his work to light, the all too certain costs of publication, which in terms
________
*) In 1768 a certain Valigny had actually published a poem in three acts,
entitled Henri IV, ou la Reduction de Paris!
Chapter 1 Page 53
(13)
of the revenue it will yield is a most uncertain affair. Thus,
the author must be paid both for his diligence over many years
& for the necessary outlays he has to make, in order to allow the
public to enjoy his work, as well as for the risk to which he
exposes himself in an enterprise which can be compared to a game
of hazard [coup de dez]. The privilege which gives him the usufruct
of his work must to be proportionate to all that; & is it really
necessary to add anything more in order to make it clear that
it would be ridiculous to liken such a privilege, itself an
abstraction of the right of property, to those which are awarded
for the discovery of an instrument or the manufacturing of a
fabric? I am just touching upon some ideas which you can easily
develop for yourself.
The Regulations of 1723.
We had observed with good reason that this Regulation, which
clarified the state & policing of the book trade, and was, moreover,
the work of the renowned Chancellor d’Aguesseau, certainly merits
respect [des égards], & that it would take something else apart
from the cries of a few booksellers in the provinces to overthrow
it. The 'impartial' author of the Discourse is too intelligent not
to have sensed the strength of this argument. All that he can oppose
to it is that the Regulation was not actually the work of M. d’Aguesseau,
that it was drawn up by the booksellers of Paris: to this more than
rash assertion, here are some rejoinders which in my view you will
find to be rather more solid.
Iº. This author is most certainly a master at ascribing impartiality
to himself, but he should not make the mistake of thinking us so naive
as not to know how things actually happen [in this mean world
Translation by: Freya Baetens (pp.41-53)
Source: Bibliothèque nationale de France: Mss. Fr. 22063 n°68, 68bis, 68ter
Citation:
Pluquet's letters, Paris (1778), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | Commentaries: [1]
Translation only | Transcription only | Show all | Bundled images as pdf
14 translated pages
Chapter 1 Page 1
___________________________
___________________________
LETTER
TO A FRIEND,
On the Council's Decrees of 30 August 1777,
regarding the book trade and printing.
I have, Sir, received the Decrees of the Council on
the book trade which you sent to me, and I have read them
with the eagerness which I could not but feel, in view of
how satisfied you seemed to be with them. You are delighted
by this new legislation; you regard it as a bulwark that
has been raised against the greed of the booksellers of
Paris, because of the useful spirit of competition which
it establishes between these and the provincial booksellers;
and you expect that I will share your approval for it. Alas,
I must on the contrary confess that in your support for
it I think there is more enthusiasm that reflection...
[...]
Chapter 1 Page 41
______________________________________
______________________________________
SECOND LETTER
TO A FRIEND,
On the current affairs of the book trade.
So you are starting, my dear Sir, to be not so
very enthusiastic anymore about the new actions
regarding the book trade; & you confess to me that
my Letter has at least contributed to make you examine
a bit more attentively what you had only seen previously
through the glow of the preamble to the Decrees. If
your vote can infuse me with self-esteem, it must though
be tempered by the opposition to my Letter offered by
persons whose opinion certainly deserves consideration.
I have just received the Impartial Discourse from a man
of letters who presents himself as the Apologist of the
Council Decrees, & who claims to refute my first Letter,
which you have apparently allowed to circulate. He states
that he does not know me personally, & I have no trouble
in believing that; I protest that I do not know him either;
this way we can fight each other with equal weapons, & no
one can suspect us of quarrelling because of personal
animosity. He adds that he is impartial, but I wouldn't
quite agree with that; at any rate unless we were to
settle on one constant meaning for this ambiguous expression.
If by being impartial he has in mind that one should be
able to discuss, keeping one's temper cool, the pros
and contras, without [taking
Chapter 1 Page 42
taking sides, I confess that I am not impartial in that
regard, & that the author himself would have difficulties
persuading others that he has this quality, since he takes
up with such energy the task of defending the Decrees &
pulls out all the stops to make us admire them. If by
impartiality he understands the casting away of all party
spirit, of this ridiculous fanaticism which, when it causes
you to espouse an opinion, will listen only to what lends
support to that opinion, & shuts itself up to everything
that might oppose it; in this sense, just as one can be
impartial without being neutral, I must profess that I am
'impartial' like my opponent: I could even add that I am a
little more so than he is; because in his spirit & conscience,
he knows very well that he has only touched superficially
upon the most essential points of my Letter, that he has
limited himself to what he thought he could attack with
some hope of success, whilst prudently glossing over what
he despaired of being able to refute.
Since I have no desire to bore you with tedious repetitions,
I will not follow his discourse in all detail, I will content
myself with revisiting some of my main points, which basically
do settle the question decisively; points which the author seeks
to obscure, in order to distort the underlying idea; but which
it is possible to present in a new light, so as to convince one
fully and completely of their truth.
I start with this article, as it is the most important
one. One must do justice to the author of the Discourse; he
has exhausted all the resources
Chapter 1 Page 43
of his mind, in order to replace the simple, natural and
accustomed notions about property with wholly new ideas;
& which, if one were to accept them, would effectively
destroy what is referred to as property in the book trade.
After having contrived by all kinds of contortions to assure a
property of some sort to authors, look at what this property
finally comes down to; it is that an author is the proprietor
of his manuscript as long as he keeps it in his desk; that the
publisher to whom it is transferred is the proprietor of the
individual ream of paper onto which he has pressed the work [ouvrage];
which means that if one were to break into the author's desk
in order to carry off his manuscript; if one were to steal this
printed paper from the bookseller's shop; this would be a
manifest violation of property: risum teneatis amici?* I am
convinced that he himself was the first to laugh at this rare
discovery, according to which an author is the proprietor of his
work only to the extent that he is able to keep it locked up
behind double locks in order to rescue it from the avid glances
of the prying person who would like to appropriate it.
How could he fail to realize that a writer only composes a work
with a view to making it public; that when it is locked up in
his brief-case, it is for him as if it did not exist at all; that
the useful property does not start, properly speaking, until
the moment it is able to see the light of day, until it can be bought
and sold; that if at this moment it is possible for people to
steal it from him, under the pretext that the spirit, the style
and thoughts, once they have been brought to light, are no longer
endowed with a property right, then it would be true
_____
*) lat. "Hold back your laughter, my friends!", a famous
quotation from Horace.
Chapter 1 Page 44
to say that the author has never, at any time, held
any real property, given that it ceases at the very
moment that it starts to have some value for him. I would
be equally glad if someone were to tell me that I am
the proprietor of my field as long as I leave it to
lie fallow, without making it produce anything; but at
the very instant that the plant which I have sowed there
emerges from the soil & is exposed to the open air, all
passers-by are welcome to take possession of it. Let the
author of the Discourse expatiate after that on the mutual
war which the booksellers of different nations are waging
amongst themselves, in order to reciprocally get hold of
their respective works, though it doesn't ever seem to
occur to them to carry away our fields & our houses! I am
sure that he will exempt me from having to refute these
analogies of his, & that the proofs which I have given
for the inviolable right of literary property remain
valid in their entirety, since all that has been opposed to
them are such feeble responses. But I do have one incontestable
proof to bring up against the author of the Discourse, &
which will make all his elaborations go up in smoke: namely,
that in my Letter I was dealing with the Decrees of the
Council, & not with the personal ideas of our Adversary. Now,
the Council's Decree explicitly acknowledges this property
as it is held by authors; it enshrines it as perpetual; it
even gives authors a privilege which should last until the
day of the Last Judgement, if they have heirs who can
represent their interests. And if he calls this privilege
a favour [grace], (because it is normal to regard as favours
everything that we receive from our masters), it is at
the same time convenient
Chapter 1 Page 45
that it should be founded in justice; that this privilege
is due to an author to secure & maintain his property. Therefore,
all that I have put forward on this point remains fully valid; &
besides, however justified the metaphysical speculations of the
author of the Discourse were in this regard, it is clear that in
the current disputation, they are quite inapplicable in accordance
with the precise formulations of the editor of the Decrees.
Now, their apologist has certainly sensed this all right, &
it is a curious thing to see him trying to extricate himself from
this difficulty. This property, he says, this exclusive and perpetual
property is indeed granted to authors by the Decree; but it is without
consequence, because as they are unable to retain it unless they
should themselves start selling their own works, it does not seem
likely that they would wish to keep hold of an embarrassing &
onerous property. But has this writer realized that with this little
trick of his he was making the head of the judiciary play a disgraceful
role, in that the latter would seem to have been making fun of people
and robbing them at the same time? Because, really, it is as if he
had made him express himself in such terms as follows: « I know full
« well that, as far as you authors are concerned, it is impossible for
« me to take away your property & the perpetual & unassailable right
« which you have to your productions: so I will preserve it for you;
« but to this lasting preservation I will attach a condition which it
« will be almost impossible for you to fulfill; namely, that you
« will not be able to transfer it; that you will have to become retailers
Chapter 1 Page 46
« of your merchandise: & as this retail selling entails extreme
« inconveniences, the ennui of selling things piece by piece, the
« delays in obtaining revenues, the complications of delivery, the
« need for excessive credits, you will soon be ruined by it, and the
« example of two or three colleagues who have made this disastrous
« experience will suffice to dissuade the others. »
I think I would surely be insulting the honest magistrate who
presides over the book trade, if I were to attribute to him so vile &
mean a trick. Thus, I would much rather believe that he did seriously
wish to preserve a real property for authors, a reliable property which
can really be turned to use in practice, & not one that is chimerical
and illusionary in its exercise. Now, there is no other way that he could
preserve this property for them than by leaving them with a right which
is inherent in all property, that of being able to transfer it such as
one possesses it, in the same way that one possesses it, in all its
entirety. And here I come back to everything I said to you in my Letter
about the laws which regulate the transfer of properties - about these
universal laws, which are common to all peoples, & which it would be
absurd to try to distort as soon as one started dealing with literary
property. It would be futile & tedious to repeat what I have already
elaborated upon sufficiently.
So let us now discuss privileges again, whose character, essence
and scope are so completely misunderstood by the author of the Discourse;
and this is so because he
Chapter 1 Page 47
likens book trade privileges to those which are sometimes
awarded for inventions of mechanical industry.
1º. A privilege, he tells us, is a favour from the
sovereign, which gives exclusive enjoyment for the duration
of several years. Well, no in fact! It is an act of justice,
it is the right of protection which the prince owes to all his
subjects, in order to secure their possessions against the enterprising
rapacity which would like to invade them. As soon as an author has
presented his Work to the depositories installed by the authorities, &
after these have assured themselves that it just contains things that
are useful, all they give him is the permission to print it; this
permission, by announcing the applicant's property, is in itself
an obligation to defend it: there is no need for a special law to
ensure that, for a special prohibition against infringing this
property, for a privilege which threatens with so and so a penalty
those who would dare to do such a thing. The general laws against
theft and usurpation ought to be sufficient. It is therefore not
just because he holds a privilege that an author can claim to have
been injured if his work is robbed or counterfeited; it is, rather,
because he is its proprietor; it is because the Administration must
defend him, & compensate for the powerlessness of the citizen who
does not have in his hands coercive or repressive powers, even if
it had not told him explicitly, by means of a document entitled
'privilege': I will defend you against usurpation.
2º. However, you may perhaps add, it is precisely for the
sake of that, that people apply for and obtain privileges.
Chapter 1 Page 48
No doubt about that; but does this privilege constitute
a property right? Every year, one month before the grape
harvest, the senior court official in our area issues an
ordinance prohibiting everyone from plucking a single bunch
of grapes from the vineyard of someone else, on pain of a
fine of 10 livres. Now, if there were no such warning notice,
would it really be so that any person would be entitled to
come along and pilfer my grapes? Does my exclusive right only
start when this bill has been put up? And if such an ordinance
did not exist, would I be less entitled to complain about the
thief who has robbed me? So what, then, is this ordinance? A
special announcement [intimation] of the general law, which
forbids people to take the goods of others, coupled with the
threat of a specific punishment for those who dare to do so
in spite of this prohibition. And this is exactly what a book
trade privilege is - it is the explicit declaration of such
individual property, any encroachments on which are prohibited
by the sovereign on pain of a fine of a thousand écus. Such a
declaration does not constitute the author's right; it confirms
it [elle le constate], it assures that the sovereign will uphold it,
that he will punish any acts of injustice which fail to respect
this property. Thus, it would be to turn all concepts on their
head if one were to argue, that if there were no such thing as a
privilege, every book given to the public would become common
property [un bien commun]; I would be just as pleased to be told
that without the fine of one pistole imposed by the senior official
of my area, my grapes would be public property for all the locals!
And so here we have the reply to these vague declamations which
seem so triumphant to the author of the Discourse: “Doesn't the King
have the power to grant
Chapter 1 Page 49
or deny to you the privilege?" Would you not dare to reply
to him: "Yes, of course he does, but in what sense?" Well,
in the sense that he can protect my property by this or that
means. Whether he does so by means of a privilege or by some
such other means which he deems to be suitable, that is for
him to decide; but in all cases he owes me some sort of
protection, since he is the public force of the law, & I do
not have myself the weapons with which to defend my goods.
"Your assets [fonds] belong to you, the King does not want
to dispose of them in any way, but he has done you the favour of
attaching a privilege to them." Oh! of course he could not want
to dispose of my assets, nay, he would not even be entitled to
do such a thing - But that is not everything: he must prevent others
from encroaching on them. It is for this reason alone that people
have always chosen to be governed by rulers; and when the prince
exercises this right of protection, it is not a favour he is
doing, but an act of justice.
3º. According to these principles, it should no longer be
necessary to hammer on with this faulty argument that, since privileges
are awarded only for for a specific period, they must cease once that
fixed term has expired. To do that would be to abuse all too plainly
of a confusion in the formulation, which has never, though, stopped
the very real distinction from being made - a distinction which is
known to everyone in practice. I had observed to you in my Letter,
that since the very beginnings of policing regulations in the book
trade, a categorical distinction has always been made between ancient
works which belong to no one, & new books whose authors were known
& who were therefore regarded as their proprietors. Privileges were
awarded for both classes
Chapter 1 Page 50
of books; but even though the name was the same, the
significance was totally different. For the ancient works,
it was a real restriction imposed on the common right; for
the new Works it was a safeguard for property. Since all
printers have the right to print these ancient books, no one
would risk the expenses and outlay required to produce an edition,
if the first person who undertook to do so were not guranteed
that he would have exclusive enjoyment of it. But since this
exclusive enjoyment goes against general law and inhibits public
freedom, it was convenient to set a term for it in proportion to
the outlay made by the publisher, to allow him to make a
legitimate profit, whereupon it is only just that natural liberty
should be restored. But as for writings which were the creation,
the property of a new author, when granting a privilege for these,
this did not entail taking away from anyone a right which no one
had in the first place; the award of the privilege simply secured
the right of the sole proprietor. The custom of fixing a term for
privileges on works of the first category, led to such a term also
being set for those of the second class. But if the diploma was
the same, it was because there was no room whatsoever for ambiguity;
it was because everyone ascribed different notions to the same word;
& that it was considered pointless to elaborate on them; it was
because this limitation, imposed on the former and the latter alike,
did not mislead anyone, since at the same time that the renewal of
privileges for ancient works was refused unless they were accompanied
by new notes which turned them into an altogether different work,
privileges were on the contrary renewed
Chapter 1 Page 51
without any difficulty whatsoever in the case of all
modern works [écrits] whose authors or publishers had just
obtained a limited privilege.
4º. The 'impartial' author of the Discourse has not
thought through his ideas properly when he argues that book
trade privileges are no different from the other privileges
which the King grants for machines or drugs. On the contrary,
there are very big differences which he has not perceived, &
which are set out in detail in the Mémoire by Linguet which I
heartily recommend to you to read. But, anyway, here are two
of them whose truth and relevance to the present case will
surely be felt by everyone. The first is that a privilege for
the invention of a secret medical composition or a work of
mechanics really does inhibit natural liberty, it raises obstacles
to the freedom which every man of genius should have to invent
and disover new things. And then, of course, I too might chance
to discover this drug, to devise this instrument, in the same way
as the person who presents himself as its inventor, & this is
something that has happened many times in the past. And yet, for
as long as the privilege which that person has obtained lasts, it
would be in vain if I were to argue that it is to myself alone
that I owe this discovery which so resembles his, for I would not
be allowed to sell mine. So here we have a privilege which restricts
the natural and civil right. If M. de Seignette, whom the author
of the Discourse refers to, had obtained a privilege for his
salt, it would have been in vain for M. Geoffroy to protest that
he had also created it by himself, for M. de Seignette alone would
have been able to sell it & arrange for it to be sold by pharmacists.
Well then, is it the same in the book trade? No, here it is precisely
the opposite: a privilege here leaves the whole elevation of genius
untouched, it allows the man of talent
Chapter 1 Page 52
to compose in all his liberty, & to compose in the same
manner, in the same genre, with the same taste. Thus, the
privilege that was granted for the Henriade does not prevent
any other poet from composing a poem on the Subjection of Paris by
Henri IV,* in the way that best appeals to him, but it does forbid
him to steal that of Voltaire. The privilege for Bossuet's Histoire
Universelle does not revoke the right of every other writer to compose
a Universal History according to the same plan, with the same views
as the renowned Bishop of Meaux, but it does prevent all others from
pilfering his work. Thus, it is approriate to set limits on privileges
for inventions, so that, whilst ensuring that their authors [inventors]
are properly remunerated, the public interest & the progress of industry
can also be protected; for the same reason no restriction at all should
be set on a privilege for a work which is always exclusively mine,
(since it is physically impossible that two persons, without one
copying from the other, should manage to write the same book word
for word), & the property to which should be permanently secured to me
by the law.
But that is not all - we now comme to the second difference, namely
that regarding these inventions which are provided with a privilege,
no other costs are involved apart from those of the invention itself;
there are no expenses other than those which are essential for the discovery.
But for any written composition whatsoever, even if it has been created
by a genius and taken to the utmost state of perfection that is possible,
the expenses which the author will have to incur have not even started
yet. Amongst these he must include the costs that are necessary to bring
his work to light, the all too certain costs of publication, which in terms
________
*) In 1768 a certain Valigny had actually published a poem in three acts,
entitled Henri IV, ou la Reduction de Paris!
Chapter 1 Page 53
of the revenue it will yield is a most uncertain affair. Thus,
the author must be paid both for his diligence over many years
& for the necessary outlays he has to make, in order to allow the
public to enjoy his work, as well as for the risk to which he
exposes himself in an enterprise which can be compared to a game
of hazard [coup de dez]. The privilege which gives him the usufruct
of his work must to be proportionate to all that; & is it really
necessary to add anything more in order to make it clear that
it would be ridiculous to liken such a privilege, itself an
abstraction of the right of property, to those which are awarded
for the discovery of an instrument or the manufacturing of a
fabric? I am just touching upon some ideas which you can easily
develop for yourself.
We had observed with good reason that this Regulation, which
clarified the state & policing of the book trade, and was, moreover,
the work of the renowned Chancellor d’Aguesseau, certainly merits
respect [des égards], & that it would take something else apart
from the cries of a few booksellers in the provinces to overthrow
it. The 'impartial' author of the Discourse is too intelligent not
to have sensed the strength of this argument. All that he can oppose
to it is that the Regulation was not actually the work of M. d’Aguesseau,
that it was drawn up by the booksellers of Paris: to this more than
rash assertion, here are some rejoinders which in my view you will
find to be rather more solid.
Iº. This author is most certainly a master at ascribing impartiality
to himself, but he should not make the mistake of thinking us so naive
as not to know how things actually happen [in this mean world
Translation by: Freya Baetens (pp.41-53)