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15 translated pages

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REPORT

MADE

AT THE NATIONAL ASSEMBLY,

BY M. HELL, DEPUTY FROM THE BAS-RHIN,

ON

PROPERTY IN SCIENTIFIC
OR LITERARY PRODUCTIONS.

PRINTED BY ORDER OF THE NATIONAL ASSEMBLY.



_____________


IN PARIS,

FROM THE NATIONAL PRINTING HOUSE

1791.

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REPORT

MADE

AT THE NATIONAL ASSEMBLY

BY M. HELL, DEPUTY FORM THE BAS-RHIN,

ON

PROPERTY IN SCIENTIFIC
OR LITERARY PRODUCTIONS.


__________


                  SIRS,

      M. Valmont de Bomare, a citizen so favourably known by
virtue of his work on natural history, and the brothers
Messrs Bruyset, who are printers in Lyon, have decided
to honour you by providing you with a copy of the former's
"Dictionnaire raisonné universel d'histoire naturelle", in
eight quarto volumes.

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      M. Valmont de Bomare has spent forty years on
the composition, & the Messrs Bruyset, nearly 500,000
livres on the printing of this work.
      The whole fortune of the author & the printers
is merged in this new edition.
      Now that the time has come to collect the fruits
of their long & expensive labours, men who did not sow,
who did not carry any burden, who did not make any
expenses, are going to take away these fruits from them.
      They have presented their complaint to you; you
have returned it to the Committee of Agriculture & Trade,
which thought it necessary to consult with the
Constitutional Committee; it sent M. Meynier Salinelles,
its President, & me there as Commissionaires. The matter
having been examined there & discussed, I was charged
with presenting the report to you.
      If respect for properties is one of the principal
foundations of our sacred constitution; if the productions
of the genius are, of all properties, the most sacred, the
law has to protect them & and avenge them against all
violations.
      This law is dictated by nature, & it is prejudged by
the Declaration of Rights (1); but, as it is not positively
written in your code, there

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(1) This law cannot be the same one as the one on theatre
plays; the Assembly considered that it had to limit the
property in the latter because it thought that the double
revenue [accruing] from publication & performance needed to
be set a limit. The example of the English cannot outweigh
eternal justice.

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is much thievery that is being committed by the counterfeiters;
in addition to this they corrupt the purity & the literal sense
of a work, they dishonour the author, compromise the legitimate
printer, & strip the one & the other of their properties. Thus,
you must pronounce a verdict as quickly as possible.
      The public interest requires it, justice owes it to the
conservation of the rights of authors; rights that the appreciative
nation must consecrate all the more solemnly, given that it is to
their writings that we owe the opinion which shattered all
kinds of despotism in France; which causes the other despots of
Europe to tremble in fear for themselves; and which blots out
this famous & terrible vengeance for the Royalist cause with
which our enemies are trying to puff up their threats in equal measure
as their hopes are disappearing.
      The interest of the State requires it - in fact, it requires even
the greatest incentives: because the progression of enlightenment, its
productions & those of our industry liberate us from the tribute which
we otherwise pay to foreign genius, & impose on foreign countries a levy
which is increasing because of the growth of our superiority, our
discoveries & our innovations.
      Justice commands it because of all kinds of property the first is
that which one has in one's thoughts; it is independent and precedes all
laws, in the same way that invention is the source of the arts & the
basic property in their works. All other kinds of property are nothing
but conventions and concessions to so-

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ciety; those of the spirit & the genius are gifts of
nature ; they have to be above all violation.
      Your committees have considered the latter in two
reports: one on the spiritual part [of a work of art], &
one on its material part. The first, like the rays of the
sun, diffuses its light all across the globe, & this light
becomes the property of all to whom the work appears;
nothing of it is left to the author other than the
satisfaction (in truth the most precious of all pleasures
of the soul) of having been received well by society, which
nobody can take away from him.
      The material part, on the contrary, is the true
property which one ought to preserve for the author; it is
the patrimony of his wife and children; it is a property all
the more sacred, given that it is the reward for works of
genius & courage which illuminate, enlighten & enrich the
century & the nation. It is inherent in the author to such an
extent that without him it would not exist; thus, without
committing an act of justice, it can neither be removed from
him, nor restricted, & even less so given that if he had
devoted himself to other kinds of work, he would have acquired
other properties infinitely less essential in the eyes of
nature, but which would all the same have been respected -
even by despotism which respects hardly anything; but then he
would not have enriched us by his insight or his feelings.
      Freedom of the press - the guardian of our liberty -
itself requests this law. Indeed, Sirs, how could freedom
of the press exist,

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if unfair manoeuvres can block it in its source? how will
the man of genius be able to flourish if he cannot hope
to reap the fruit of his works; if contempt for the laws
can render his intellectual work most unrewarding for him
& turn it into the most unfruitful of all occupations; if
the printer cannot undertake the publication a work without,
in addition to the usual specific risks of such an enterprise,
having to face all the dangers menacing him from the part of
rapacious plunderers?
      Under the Ancien Régime authorial or publishers’ property
rights, which are essentially the same, were also guaranteed;
but the designation which the government used to indicate the
act by which it accorded this guarantee deserves to be defined
properly because from confusion of ideas there can arise an
abuse of words and errors which the law must prevent.
      The Ancien Régime named the act by which the government
intended to guarantee literary property rights, a "privilége
en librairie".* A privilege! What an enormous abuse
of words! what an even greater abuse of power!
      Property & freedom meant nothing before the will of the
distributors of the will of the monarch.
      Indeed, Sirs, without a privilege my property would become
the property of all, & by such a privilege, the property of all
would become the property of one sole person.
      Let me explain myself further: the most sacred kinds of
property held by man, the fruits of his scientific or literary
genius, become, without such a privilege, a booty for all to
take; & the freedom to grow & sell tobacco, the pro-

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*) i.e. the freedom to publish and a monopoly to a publisher
for a fixed period of time.

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perty of all becomes, as a result of a privilege, the
property of one company only, &c.
      You have outlawed all the privileges of this latter
sort, because they were contrary to the sacred rights of
nature; as for the works of genius, you have destroyed the
word, but you respect and will enshrine the thing which it
describes.
      Does it really follow that, because the document which
prevented people from stealing my work bore the name of
"royal privilege", my work, if it had not been privileged,
would have been any less my property? & that, because the
document which secured this property on my behalf carried
an unsuitable & abusive name, and because all privileges
have been abolished by the constitution, my property right
also has to suffer from this destruction? No, Sirs, property
rights guaranteed under the name of a privilege & all the
agreements made to this effect by the proprietors, their
heirs or successors in title, have to be maintained & respected.
      What remains, Sirs, is to examine a kind of literary
property whose limits are not properly defined - namely, that
of journalists, of contributors to periodical publications.
      Here are the questions which present themselves:
      1º. In what sense is a newspaper an object of property?
      2º. Where does this property extend to?
      3º. How should it be safeguarded?
      4º. At which point does it cease?
      A single hypothetical example will clarify this much better
than presenting a range of longer arguments.
      The journal called "Moniteur" is successful. A

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new writer wants to set up a similar journal, & nothing can
hinder him from doing this, on the condition that the similarity
is not such that one could easily mistake the two journals.
      What belongs to the first writer is,
      first of all, his invention; 2º all the sheets of paper he
has produced; 3º the title he had chosen.
      His title above all because it is like his nameplate; it is
by the title alone that he is known to all his subscribers.
      If the other writer were to presume to offer his journal to
the public under the same title of "Moniteur", the first one
would be entitled to say: "My property has been violated: this
violation consists of misleading those who have given me their
trust by offering them, under a title that belongs to me, a
different work."
      The second writer thus cannot assume possession of the title
or of the composed volumes, nor offer them to the subscribers,
except on the basis of a concession from the first one; & this
concession would therefore be a transaction whose execution the
laws have to guarantee to the utmost extent.
      If all of this has not been done, the second writer, if he
wishes to bring out a similar journal, will have to give it
another name.
      And it’s there, Sirs, that the property of the first writer
ends; & the second will be able to print, under a new title, his
thoughts, the same facts, without the former being entitled to
complain about it.
      In accordance with these considerations, your committees have
found that the works of genius & the freedom of the press, being the
most solid foundations of your constitution,

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this freedom being understood in the most absolute sense &
property in the former understood in the widest sense, have
to be enshrined by the constitutional laws, & that these
laws have to be all the more severe against counterfeiters,
given that counterfeit is a type of theft made all the more
dangerous by there being so many more ways of escaping
punishment;
      That this punishment has to be harsher that the one
imposed by your decree of 13 January 1791 on offenders against
the Law on property rights to theatre plays, since violations
of this law can after all only take place publicly.
      And they have commissioned me to present to you the draft
decree which follows:

DRAFT DECREE.
      The National Assembly, after having heard the report which
was made to it by its Committees of the Constitution, of
Agriculture & Trade, regarding the property right which all
authors of a work, their heirs, cessionaries or assignees, are
entitled to claim against all counterfeiters, decrees:

FIRST ARTICLE.
      That all literary or scientific productions, regardless of
whether they are original works or translations of a foreign work
from a foreign or extinct language into ours, just as every work
in our language composed or printed in a foreign country, &
translated in France into a foreign language;

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that all works which collect and present knowledge in a new
form or in a new sequence, or which improve already acquired
knowledge, are the property of their authors, the latter's
heirs or assignees.
      The law guarantees to them the full & entire usufruct
thereof, in accordance with the following provisions.

II.
      Property in a journal, or a periodical work, consists of
the title which designates it, & of what is printed therein;
nobody can appropriate it without a preliminary cession, the
conditions of which are to be fulfilled in utmost accordance
with the law.

III.
      All literary properties guaranteed by a tutelary act
(formerly named privilege), & likewise all conventions by which
these have been, or will be passed on to cessionaries, will be
upheld & respected like those concerning all other kinds of
property.

IV.
      That whosoever intends to print, or have printed on his
behalf, a manuscript of which he is the author, & wishes to enjoy
legal protection for his property in the work, must put his
signature on it; & this author, his cessionary or their
heirs, are obliged to have registered - before the printing has

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been completed - as a public token of their property, their
name, the title of the work, the number & format of the
volumes, & the name of their printer, at the chancellery of
the Tribunal of Commerce, under whose jurisdiction he falls.
And the known title, as well as the prospectus of any
periodical work, will also registered & under the same
title, at the chancellery of the abovementioned institution.

V.
      That a work printed or engraved in France on behalf of
the author, his cessionary or their heirs, regardless of whether
they undertake one or several editions, may not be printed or
engraved secretly, nor counterfeited entirely or partially,
nor imported from abroad, within the whole territory of the
French Empire; the printer will not be able to make other
editions of it without the consent in writing of the author,
his cessionary, heirs or assignee, nor print it, or bring out
a greater number of copies than that requested in writing by
the author, his cessionary or heir, or his assignee, on pain
of infringing [the law] & thereby becoming liable to punishment.

VI.
      That every counterfeiter, or anyone else who is accused of
[this offence] or seized in flagrante delicto, whether it is
while printing, or while introducing into the realm, or holding
in stock, or selling the counterfeited work, will be arrested,
prosecuted as a thief, in accordance with the legal formalities;
& if he is found guilty, he will, first of all, by way of

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public punishment, be put in the pillory for three hours,
and thus exposed to the people, with this sign on top of
him: "Thief and counterfeiter", & sentenced to hand over
to the author, his cessionary, or his heirs - upon no more
than their declaration, which they must confirm in an
attested manner - the total retail value of the edition
counterfeited by him, to which payment he will be constrained
by all legal channels; all his goods and chattels up to the
amount of the adjudicated fine will be seized; the entire
edition confiscated & returned to the injured party, which
may dispose of it, and a fine of 200 livres will be levied
for a work of octavo size or less, of 400 livres for quarto
size, of 600 livres for an in-folio volume, this sum being
multiplied by the number of volumes that make up the work,
and half of the total sum going to the indicter, the other
half to the poor of the place where the crime has been
committed; & the name of the counterfeiter, his sentence, the
title of the counterfeited work, & the date of the sentence
will be posted up in session-room of the Tribunal of Commerce,
where these details will remain exposed to public view for five
years, as well as being put into public newspapers.

VII.
      That every instigator, cooperator, and distributor involved
in producing such counterfeited works or introducing them into
the realm, will be responsible in his own name, & subjected to
the same penalties.

VIII.
      The author, the cessionary of the author's right, or their

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heirs, whose property has been infringed upon, when they
have knowledge of the crime, will address themselves to the
justice of the peace or the chief of police of the place
of the crime; they will give him the evidence & provide him
with material for comparison, & the justice of the peace, or
the chief of police, will make his way to the accused, affix
his seal to the counterfeit copies, to the moulds used to
carry out the counterfeit & to any other piece of incriminating
evidence, whereupon he will report all this to the to the
public prosecutor.

IX.
      No right of literary property may henceforth be exercised
for works whose authors, cessionaries, heirs, or the printer
employed, have kept secret or disguised their names; or for works
printed abroad; it will be the same for already existing works
whose authors, or their assignees or publisher(s), have failed to
effect, within three months from the promulgation of this law,
their registration at the chancellery of the Tribunal of Commerce,
or who are unable to provide sufficient evidence to justify their
current property.

X.
      In those cases where a denunciation for counterfeit or the
importation of counterfeit wares into the realm is found to be
devoid of evidence, the plaintiff will be sentenced to pay to
the denounced party compensation & and interests proportional to
the harm which the accusation might have

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caused to him, & in addition to this, to deposit into the
poor-box of the given district a monetary fine which must
not be less than the sum which the denounced party would
have been sentenced to pay if he had been found guilty.

XI.
      This decree will be printed in full at the end of every
work, thereby replacing the privilege of old.

      Your committees have, moreover, charged me with suggesting
to you two additional articles to cover property in dramatic works.
      The case envisaged by these articles is a sort of
counterfeiting by which some people in Paris are trying to sidestep
the law concerning this type of property.
      The reasonableness of the proposed draft will become clear.
      Iº. No one may arrange to have performed on a French stage
a play by a living French author, translated into a foreign language,
without the formal permission (given in writing) of the French author
in question, of his cessionary or heir, on pain of confiscation of
the profit from all ticket sales, & of a fine of one hundred livres to
the benefit of the parish poor for each such [unauthorised] performance.
      2º. Dramatic works which are set to music, being the property of
two authors, may not be used by anyone as the text for other music; nor
may their music be used with other libretti; nor may they be staged in
any theatre of the realm without the formal consent

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(given in writing) of the two authors or their heirs, or
assignees, until after the expiry of the five years specified
in the decree of 13 January 1791, counting from the date of
the death of the last surviving author, on pain of confiscation
of any profit made from the work; & if it has actually been
performed, of the entire takings, & of a fine of one hundred
livres per performance to the benefit of the poor in the parish
where the infringement has taken place.

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Translation by: Freya Baetens