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PART 2
ON THE NATURE OF LITERARY PROPERTY

      It is with a well motivated apprehension that we embark upon this
discussion; the great wisdom that surrounds us, the superior intelligences
that listen to us, inspire in us the most legitimate fear of remaining
well beneath the task that is imposed upon us.
      We will at least be fulfilling a duty of propriety towards the
honourable assembly by preserving its time and by limiting ourselves to
general overviews, so as to spare it from the length and ennui of useless
developments. We will thus, in what will follow, only indicate, so to speak,
the substance of the difficulties that the question of literary property
presents, considered in itself and abstraction made of its relations with
the interests of literature as with those of society.
      It is not in your presence, Sirs, that such interests need be stipulated:
with your zeal for them you have given guarantees too brilliant for it to be
necessary to defend them when you are called upon to consider them, and if we
were to discuss these elevated interests with you today, it would only be to
speak to you of the recognition that is your due for the numerous services that
you have rendered to each and everyone.

      If all the bons esprits [common sense] agree on the favour and the protection
due by society to the men that enlighten and honour it by productions of genius,
this unanimity does not exist on the principle of rights that one pleases to
acknowledge them.
      Two different manners of envisaging these rights have given birth to two
opposing opinions.
      Some consider the creation of a literary work as establishing a right of
property in favour of the author that confers upon him, along with the free

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disposal of the work, the exclusive and perpetual enjoyment of the profits
resulting from its publication.
      Others see in this public diffusion of thought but homage offered to
society, which thereupon becomes the proprietor of the published work,
provided it indemnifies the author for his work by the concession of certain
advantages.
      These two systems both appear to be grounded on solid reasons, on grave
authorities, and due to this have become the subject of a serious controversy.
      We will attempt to summarise here, with the greatest possible accuracy
and speed, the arguments as well as the objections employed with regard to
each of these two opposing theses.
      A non-contested principle, of natural equity as well as of social utility,
is that each has the right to the fruit of his works; that he should enjoy that
which he has created, or which he has discovered before any other; that in a
word he alone should remain master of that which belongs solely to him; and
such is the origin of the right of property.
      For if there is anything [that is] personal to man and that is essentially
his, in its cause as in its effects, it is thought; it is the noble work of the
mind that gives it light of day, and that dresses its immaterial nature in a
positive form by speech, writing or typographical processes.
      The most obscure artisan whose vulgar intelligence is applied to works that
are purely mechanical, the industrious man who, with materials that belong to him,
has constructed a house or has erected any type of building; the cultivator who
has sown his grain, even in the field of another, to await the harvest, all
equally enjoy, under the safety of laws, the fruits of their industry or of their
work: they can consume them themselves, or pass on the benefits to their posterity.
      And the superior mind, the rare genius who will have devoted his evenings
to the meditation of useful truths, to the culture of letters or of sciences,
and whose learned elaborations will have bestowed advantage, as well as glory on
his country, will alone see himself excluded from this common protection! And he
could say to himself in dying “I bequeath my children misery, because I preferred

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honour to money; I would leave them prosperity if I had preferred money
to honour!....”
      One alleges, it is true, that thought is not individual, that it
belongs to all, and that reflection can develop the same ideas in different
minds; that one can thus suppose a simultaneity of thought which, in giving
to many minds the same results, would confer an equal right to claim the
property, and that where several, and even all, can call themselves proprietors,
in fact none are.
      Without launching oneself into these metaphysical abstractions of great
subtlety, one can say that experience advantageously contests such an argument,
and that simple good sense rejects the idea of an identical literary production
by different individuals.
      Besides, even in this [so] defective system, there would always remain, to
constitute property, the right of occupation, which is also a means of acquiring,
and the entire question could be reduced to certifying property, within the
public diffusion of thought, by the publication of the work.
      And so one should, according to the partisans of the right of property,
recognise in all literary creation a definite author, unique, in whom the right
to possess establishes itself and is concentrated, by the sole fact that he has
created, and to whom his work belongs for the same reasons that to the artisan
belongs the work he has fabricated, to the constructor the house that he has
built, or to the labourer the harvest of the field he has cultivated.
      But, on the one hand, one objects that a literary or scientific production
is by its nature as well as by the will of the author essentially destined for
the public, and one asks how, once this will as well as this destination have
been fulfilled by publication, the author might reclaim a property that he has
voluntary dismissed in favour of society?
      On the other hand, one opposes that which follows: “You claim that the public
to which the writer destines a work becomes the true proprietor the day of its
publication; but if by this the writer thus deprives himself, who profits from
this abandonment, if not the booksellers and the actors?”
      Here are thus the two opposed objections, which, placed so to say at

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the two extremities of [the field of] the question, militate in favour of the
opponents or the partisans of absolute property.
      Inspired by the same grounds that have until now forbidden the metaphysical
considerations that the examination of the subject seems to provoke, we will limit
ourselves to here citing a passage of the text that we have already called to the
attention of the assembly, a passage that seemed to us to present, under an
ingenious form, ideas that are solid and incontestable: it will, we believe, be the
best response to this objection derived from the alleged renunciation of property
resulting from publication.
      “In the works of [hack]writers and artists, there are two things that it would
be important to clearly distinguish, and that one has always confused: first, the
work itself, abstraction made of all means of publication, and considered purely from
the perspective of the arts and of literature; the verses of poets, the songs of
musicians, the composition of the painter; these expressions of their thought, these
fruits of their imagination, are unquestionably destined for the public, and as soon
as one gives them to it, it can take possession of them, that is to say imitate the
style, learn, write, recite the songs and the verses, even if they have been published
only by voice. In this sense, the works become the property of all, and the enthusiasm
that the public shows in seizing them makes the fame of authors and is not the subject
of their complaints.
      But, through the diverse modes of publication adopted (printing, engraving,
theatrical representation), these works provide the opportunity for a profit that is at
times considerable. Under this new point of view, their nature is entirely different;
for once a book is printed, once a score [or] a drawing is engraved, one should see in
the published copies but merchandise [and] industrial productions, to whose preparation
contributes, on the one hand, the author that has invented, and on the other, the
engraver, the printer [or] the bookseller that publishes. This invention, insomuch as we
consider it as mercantile, is private property and transferable. Indeed, one cannot
contest anyone the property that he has created, and his will alone is capable of
relinquishing it; for, in publishing, what is the aim of the author? To offer to all the
voluptuaire [enjoyable] employment of his property while conserving for himself the
useful employment; that the public therefore take that which the author gives it, and
that it respect

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that which the author retains: if someone acts otherwise, and misappropriates
this invention for himself, as a source of profit, he commits a true petty theft
that the laws must punish.
      Thus, here is what should have been distinguished, within the works of the
mind, in order to wisely pronounce on the rights of authors:
      The work [œuvre], considered from the perspective of the arts and the letters;
      And the work [ouvrage], considered from the commercial perspective.”
      For lack of a desired agreement on the principle of absolute property, the
distinction that has just been established, in supposing it be generally adopted,
simplifies the question greatly.
      In fact, this property, cause of so many controversies, at once laid claim to
by the authors and by the public, finds itself, by this ingenious distinction, shared
so to say between them, in the terms that seem to command its nature. The public’s
share is the faculty to enjoy, under the intellectual perspective, the work that is
intended for it: that of the author is to henceforth retain, in its integrity, with
the power to pass it on to his children, the enjoyment of the material advantages
attached to the successive publications of this work. Thus, society continues to reap
all the fruit that it can legitimately expect from the productions of genius, without
having to moan of a too frequently renewed scandal, that of destitution [la misère],
which withers and devours the posterity of the men to whom it [society] owes its
knowledge and its renown.
      In admitting, hypothetically, the system that has just been expounded, it is, it
seems to us, within this overview that the true principles that constitute that which
we name in this case the public domain should be sought, and it is impossible, we
believe, to conceive of the right that this term represents, other than in association
with this other right reserved to authors and to their descendants.
      This recognition of the right to enjoyment, under the term of public domain, has
brought us to the examination of the objection that we have expressed further above,
in opposition to that which we have just discussed. This objection, presented with all
the appeal of mind and of talent, by the most illustrious of our critics,* consists of
representing the booksellers and the

____________

*) M. X. of the "Journal des Débats" of 21st November 1825.

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actors as benefiting alone from this enjoyment, assigned in appearance to
society: to reply, let us start by setting aside the actors, necessarily
privileged, from the application of our principles. It would be easy to
demonstrate, on account of the existence of this privilege, why the exercise
of the right of literary property should be further extended: we remark,
moreover, that to this application are not attached the important considerations
of general utility and of liberty of thought, which can influence the
limitation of all property as applied to the products of the press, and which
should remain completely foreign to our discussion.
      That if, on the contrary, we devote ourselves to considering the commerce
of the bookstore in its nature, in its practice and in its effects, we would
remark that the individuals that make it up, liable to simple police measures,
but unlimited by right in number, enjoy the absolute plenitude of their industrial
means, that is to say that they can indulge in all sorts of speculation not
contrary to the public morale and the safety of the state.
      These individuals, almost solely responsible for propagating the productions
of thought, find the source of their profits as much in the limited or irrevocable
concessions that authors make them, as in the public favour that is attached to
the object of these concessions.
      It is thus impossible for them to seek the object of a profitable speculation
without resorting to both of these means: consequently they cannot, under any
circumstance, be independent vis-à-vis the authors and the public, which their own
interest recommends them to satisfy equally: the competition excludes any idea of
usurpation or of monopoly. The legislation would be vicious if from the booksellers’
perspective it granted an advantage to the public at the expense of the authors, or
to the authors at the expense of the public. A new law, which would appoint the
bookseller as the assignee of a work that is universally sought in a state of
complete independence from the public; [a law] which, reassuring this bookseller
against the comparisons born from competition, would leave him entirely free to
publish an incorrect book, incomplete, inelegant, with the certitude of sale; such a
law would be as harmful as that which, ensuring to booksellers and to actors an
arbitrary and unlimited enjoyment, obliges the descendants of Corneille to receive

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the aid of the comédie française and permits that the illustrious author in
dying be forced to think that thirty booksellers will wait the fatal term of twenty
years after his death to multiply the editions of his works, next to which his
disinherited descendents might die of hunger.
      Whatever might be, moreover, the requirement of the principle in virtue of which
one would attribute the property of a published work to the public domain, this
principle would always suffer an exception that cannot be contested, it appears to
us, with regard to the works of living authors. Everyone senses clearly, indeed, that
as long as an author is living, it is just to grant him an absolute right to the form
that he has given to his work. The changes that could be made by a foreign hand, the
deletions that would seem necessary to new editors, the commentaries with which one
would attempt to explain or to contest the thoughts that the book contains; all these
pertain to common law, as long as the author is there to ensure that his work is
respected, as long as he calls upon the regard that is his due. Moreover, although one
might uphold, in theory, that thought, once expressed, no longer belongs, [or] at least
the enjoyment of it, to its author, one must acknowledge, in practice, the concession
made to him of any right to the existence of a book that is never supposed to have
received its definitive form, as long as the author is living. Repentance, the need to
correct [and] personal considerations can [all] influence the more or less rapid issuing
of a book, even the suppression of work that the author may attempt, except never
accomplish. One must admit that the rights of the public domain, even though they are
recognised and sanctioned, must remain suspended until the moment when they can be
complete and as long as the author is in position to refuse it [the public domain] a part
of them. It is thus entirely just to concede to him the unlimited property of his works
during his lifetime.
      Furthermore, the hope of a profit limited in duration, but present and more greatly
assured than the promises of the future, must often influence the determination of the
author, especially if his work, created for circumstance or for fashion, fleeting in its
object and in its form, can only hope for momentary favour from the public. In this case,
the advantage of an irrevocable assignation cannot be contested. How then will this author
be able to obtain an advantageous deal, if the unforeseen event of his death can destroy,
in the hands of the assignee, from the following day, from that day itself,

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the property that he has just acquired? It would thus seem necessary, in the
system that we are examining, to agree upon a certain delay following this
death, to ensure the assignee a reasonable enjoyment. But, one might say, what
inconvenience could there be, in the case of a frivolous work, such as those
in question, to allow the assignation to be unlimited? Will the effective
property not cease of itself the same day that the vogue will have ceased? The
fact is that the hypothesis of a greater frequency of irrevocable assignations,
if it concerns current works, can be applied every day to works destined to
survive for centuries, and that one should make a rule of only pronouncing on
works of great importance; those alone will benefit from the new legislation.
The law, in its unlimited nature, will only affect works of genius: the weaker
[works] will be sufficiently guaranteed by the dispositions that are destined to
protect the more significant. It is thus certain that the public domain will
only enjoy the plenitude of its rights with regard to works which are of public
interest. The current legislation is more than sufficient for the guarantee of
ephemeral productions of thought. The universally-felt need for a more durable
protection is linked to considerations of a superior order; it is for this reason
that it becomes necessary to put forward the two opposing principles: the reward
due to immortal geniuses and the indefeasible right of the public to the enjoyment
of works of genius. It is a solemn contract between society and the authors, whose
conditions should be regulated; the advantages granted to one should not prejudice
the rights of the other.
      Now it remains to clarify this idea of social reward that we have already
indicated and that, for lack of the principle of absolute property in the person of
the author, if it must be renounced, should become the basis of the system that it
seems appropriate to sanction by the new law. We must apply ourselves to seeking the
means of rendering the perpetuity of this reward inseparable from the existence,
however prolonged it might be, of the works that it should remain attached to.
      In order to fulfil this goal, at the moment when the public domain enters into
possession of its recognised property, the enjoyment of the advantages that we are
discussing must commence for the representatives of the deceased author; as long as
one of these representatives can

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appeal to the justice of opinion by putting forward his name and his background,
the grateful society must continue to pay tribute to its benefactor, in the
person of the representative that nature and law granted him.
      Here one necessarily enters into the rigorous principles of the decree of
the council of 1777; with it one is forced to recognise that the heirs of an
author are the sole beneficiaries that can justly claim the reward merited by
his works; one sanctions by this the existence of a sort of literary nobility,
the principle of which is in every heart; one satisfies at last this need for
justice that one has claimed in vain to smother by specious reasoning, but which,
even in the mouth of its adversaries, has testified to its force and to its
necessity by the involuntary use of the most expressive of all words: that of property.
      In envisaging the question under the last perspective indicated, one must,
to finish the overview, determine the rules according to which the rights of the
public domain will be exercised, along with the time as of when it will enter
into true possession of the property of the works, and to define, along with the
extent, the portion, the mode of obtaining the rights reserved to authors or to
their representatives, to what degree [of relationship] this representation will
hold.
      But all these points evidently enter into the category of difficulties of
execution, specific to any legislative system dealing with literary property.
      Our extreme desire to be sparing with the assembly’s time does not allow us
to enter, in this respect, into a detailed discussion which would carry us too far.
      We have thought it possible to conciliate this need with that of calling to
its attention the generality of the points that demand it, by indicating and
specifying all the difficulties at issue in a series of questions that completes
our work, and that we will have the honour of submitting to it.
      These questions, which seem to us to embrace, in the two systems between which
the wisdom of the assembly must decide, all the applications that they might
present, will give by their very solution the elements of a new legislation, and
they have been presented in a methodical order, from which the entirety of these
solutions will naturally make up

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the text of a government bill, which the assembly is called upon to prepare.
Furthermore, one will understand without difficulty how our just respect for
it [the assembly] prohibited a more positive form to our propositions, and
how that of doubt was the only one suited to express our thoughts in the
presence of such a mass of wisdom and the gathering of such distinguished minds.
      The series of proposed questions makes up, as we have announced, the
third and last part of this report.



Translation by: Silje Normand (pp.36-45)