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Proudhon: 'Les Majorats littéraires', Paris (1868)
Source: Bibliothèque universitaire de Poitiers (SCD)
Citation:
Proudhon: 'Les Majorats littéraires', Paris (1868), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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49 translated pages
Chapter 1 Page 1
Complete Works of P.-J. Proudhon
volume XVI
_____
LES
MAJORATS
LITTÉRAIRES
[LITERARY ENTAILMENTS]
Examination of a bill
whose purpose it is to create, for the benefit of authors, inventors, and artists
a perpetual monopoly
_____
FEDERATION AND UNITY IN ITALY
_____
NEW OBSERVATIONS ON ITALIAN UNITY
_____
THE SWORN DEMOCRATS
AND THE REFRACTORIES
by
P.-J. PROUDHON
_____
PARIS
LIBRAIRIE INTERNATIONALE
15, Boulevard Montmartre
_____
A. LACROIX, VERBOECKHOVEN & Co., PUBLISHERS
at Brussels, Leipzig, and Livorno
_____
1868
All rights of translation and reproduction reserved
Chapter 1 Page 10
FIRST PART
ECONOMIC DEMONSTRATION
_____
§ 1. – Formulation of the question.
In 1844, Prince Louis-Napoléon, currently His Majesty Napoléon III, let the
following words fall from his quill in response to M. [Jean-Baptiste] ]Jobard, the author
of Monautopole – words which the supporters of literary property continue to invoke to
this day:
«The work of the intellect [l’oeuvre intellectuelle] is a property like a plot of land, like a
house: it ought to enjoy the same rights and should not be alienated except for reasons of
public utility»
Since time immemorial the master’s word has been regarded as an irrefutable
argument in matters of doctrine. The master had said it, Magister dixit, and there was
nothing more to be said. The French school of logic, essentially authoritarian and
monolithic as it is, is still at that stage. The King has said it, the Emperor has said it! Such
a verdict simply cannot be contested. What has been thought out in Paris must apply to
all eighty-nine départements.
Well, then! the Emperor was wrong. The work of the intellect is not at all a
property like a plot of land or a house, and it does not give rise to similar rights. Since I
do not belong to those people who expect to be taken for their word, I insist on providing
the proof of this.
Of course, I am not going to condemn Napoléon III for the fact that in 1844, when
he was already being assailed by the makers of utopias and the inventors of panaceas, he
let himself be taken by surprise by that scoffer of Jobard, whom I knew well and who
believed in intellectual property just as he did in spiritualism – that is, like a true Norman,
without
Chapter 1 Page 11
[10 LITERARY ENTAILMENTS]
believing in it too much. I shall merely take the liberty of reminding His Imperial
Majesty, in allusion to a phrase once said by Louis XII (*), that the Emperor of the
French cannot answer for the lapsus calami [slips of the pen] of Prince Louis. And,
having said this, I shall willingly praise his august person for having put, in the words I
have just cited, his finger on the crux of the matter at one stroke.
Indeed, the question we have to deal with is not whether the man of letters, the
inventor or the artist is entitled to remuneration for his work: who would dream of
refusing a piece of bread to a poet, of treating him worse than a share tenant? Once and
for all this odious question should be banished from discussion altogether, since it serves
as the text of the most ridiculous pronouncements. What we have to determine is the
nature of the writer’s right; in which way the remuneration of his work will be achieved;
whether and how this work could give rise to a property that is analogous to landed
property, as the backers of this monopoly claim and as Prince Louis-Napoléon believed
in 1844; or whether it is not rather so that the creation of an intellectual property on the
model of landed property rests on a false comparison, on a false analogy?
Reasoning on the lines of a first, rough estimate and according to a shoddy
generalization, the supporters of this monopoly say yes – that it does give rise to such a
property. After a careful examination of their arguments and on the strength of an
analysis of which the reader will be the ultimate judge, I say no.
§ 2. – Definition: From the economic point of view the writer is a producer, and his work
is a product. – What does one understand by this word: produce ? The character of
human production.
All the writers who are in favour of literary property, when maintaining their
thesis, concur in likening artistic and literary production to agricultural and industrial
production. This is the point of departure of all their argumentations, and it will also be
mine. It goes without saying that such a comparison does not diminish in any way the
dignity which rightly belongs to literature, science, and the arts.
Yes, whatever the fundamental difference that exists between the categories of
beauty, justness, sacredness, truth, and that of USEFULNESS, in spite of the insuperable
boundary that, in all other regards,
________
(*) “Le roi de France ne vengera point les querelles du duc d’Orléans” (“The King of
France will by no means avenge the wrongs suffered by the Duke of Orleans”) was Louis
XII’s reply to those who urged him take revenge for all that he had suffered when he was
simply Duke of Orleans
Chapter 1 Page 12
[11 ECONOMIC DEMONSTRATION]
separates them, insofar as the man of letters, science or art does not produce his works
other than by the sweat of his brow, and that for this purpose he expends energy, time,
money, and provisions – from the inferior point of view of political economy, in a word,
he is what the science of wealth designates a producer. His work is a product, which,
once introduced into circulation, opens a credit for a compensation, remuneration, salary,
or payment – at this point I am not discussing the specific term as such.
But, first of all, in political economy what does one understand by this word:
producer ?
The masters of science instruct us all – and the supporters of literary property are
the first to argue this – that man does not have the capability of creating a single atom of
matter; that all his activity consists of appropriating the forces of nature, of channelling
these and modifying their effects, of composing or decomposing substances, of changing
their forms, and, by this steering of the natural forces, by this transformation of
substances, by this separation of elements, of making nature [la création] more useful,
more fertile, more beneficial, more brilliant, more profitable. So that all human
production consists (1º) of an expression of ideas; (2º) a displacement of matter.
Thus, the humblest artisan is nothing more than a producer of movements and
forms: the former he extracts from his vital energy by the interplay of his muscles and
nerves; the latter come to him through the excitation of his brain. The only difference
there is between him and the writer is that the artisan, acting directly on physical matter,
gives it an impulse, imprints and, so to speak, incorporates into it his idea, whereas the
philosopher, the orator, the poet does not produce, if I may be so bold as to put it this
way, beyond his own being, and his production, spoken or written, is restricted to the
word. I for my part made this observation long ago, and Messrs Frédéric Passy and
Victor Modeste, who profess the same point of view, could certainly have quoted me – if
I were the sort of writer whom one quotes, if it didn’t happen to be more profitable to
treat me like a sophist. But do they know where this comparison, which seems to be
universally accepted by all modern economists, will lead them? It is just that they do not
suspect it.
So here is what is agreed: the writer, the man of genius, is a producer, no more, no
less than his grocer or his baker;
Chapter 1 Page 13
[12 LITERARY ENTAILMENTS]
his work is a product, a portion of wealth. In the past economists used to distinguish
between material and immaterial production, just as Descartes distinguished between
matter and spirit. This distinction reveals itself to be superfluous: firstly, because there is
no production of matter, and, as we have already said, it is all a question of ideas and
displacements; and, secondly, because, in the strict sense of the term, we do not produce
our ideas any more than we produce physical substances. Man does not create his ideas –
he receives them. He does not at all make truth – he discovers it. He invents neither
beauty, nor justice – they reveal themselves to his soul spontaneously, like the
conceptions of metaphysics, in the perception of the phenomena of the world, in the
relations between things. The intelligible estate [fonds] of nature is, in the same way as its
tangible estate, outside of our domain: neither reason, nor the substance of things are
ours. Even that very ideal which we dream about, which we pursue, and which causes us
to commit so many acts of folly – this mirage of our understanding and our heart – we are
not its creators, we are simply those who are able to see it. Seeing as a result of
contemplating; discovering as a result of searching; mixing and modifying matter in
accordance to what we have seen and discovered: that is what political economy calls
producing. And the closer we look at this question, the more we become convinced that
the likeness between literary production and industrial production is exact.
We have talked about the quality of the product: let us now speak of its quantity.
What can be the extent of our creative power, the measure of our production?
To this question one can reply, in general terms, that our production is
proportional to our strengths, to our constitution, to the education which we have
received, to the environment in which we live. But this proportionality, which can
express a significant quantity if one considers it collectively for mankind as a whole,
expresses a very weak where the individual is concerned. Amidst the human collective
and the riches of society, the individual and his work are infinitesimally small. And this
infinitesimal character of the individual product is as true of philosophical and literary
production as it is of industrial production, as we shall shortly see.
In the same way that an agricultural labourer on average ploughs but a quite small
area of ground, cultivates merely a patch of soil –
Chapter 1 Page 14
[13 ECONOMIC DEMONSTRATION]
in short, produces no more than his daily bread – so the worker of pure thought does not
attain the truth other than slowly, after going through a thousand errors; and this truth,
insofar as he can boast of having been the first to discover it and set his seal on it, is but a
spark which shines for one instant and which tomorrow will have been extinguished
before the ever growing sun of universal reason. All individualism disappears rapidly in
the realm of science and art, so that the production which seemed to us to be the most
sheltered from the wounds of time – that of ideas – does not have, subjectively speaking,
any more guarantees than the other kind of production. The work of man, whatever it
may happen to be, is, like him, limited, imperfect, ephemeral, and serves only for a while.
An idea, by passing through the brain where it acquires individual form, ages just like the
word which gives expression to it; the ideal destroys itself as quickly as the image which
represents it; and this creation of genius, as we call it emphatically, which we pronounce
to be sublime, is in reality small, defective, perishable, in need of being renewed
incessantly, like the bread which nourishes us, like the clothes which cover our
nakedness. The masterpieces which have come down to us from extinguished nations and
which we believe to be immortal – what are they? Mere relics, mummies.
Thus, from all perspectives industrial production and literary production seem
identical to us. When carried over into the realm of political economy, the distinction
between matter and spirit serves only to encourage various arrogant pretensions, to
establish certain categories of conditions which are as contrary to political economy as to
nature. This, however, does not mean that people of the mind or spirit [gens d’esprit] by
virtue of their speciality are not more spiritual or spiritualized than men of flesh whom
their profession places in constant contact with matter; but that in its turn does not prove
that artistic and literary production are not a specialized branch [une spécialité] of
industry. I hope to ultimately establish the opposite point of view. And frankly, is the
distance separating the one from the other – again, always from an economic perspective
– as great as is commonly held? A thinker conceives an idea; a practician seizes it and
realizes it with his hands. Whom are we to give the palm of merit? Are we really to
believe that it is sufficient to have read in a geometry treatise the rules of cutting stones
for these
Chapter 1 Page 15
[14 LITERARY ENTAILMENTS]
to be cut? No, one also has to apply hammer and chisel, and it is no light task, after an
idea has been conceived by the mind, to make it pass into the tips of one’s fingers, from
where it escapes, as it were, in order to become fixed in matter. He who has his idea in
the hollow of his hand is frequently a man of greater intelligence – at any rate more
complete as a person – than he who carries it in his head, incapable of expressing it other
than through a formula.
§ 3. – The producer’s right to the product. – That the idea of production does not imply
that of property.
A thing, or rather its form has been produced: who is it to belong to? To the
producer, who may dispose of it as he pleases, and who shall have the exclusive use of it.
This is yet another principle which I am prepared to endorse to the full. No demonstration
is required for that, Messrs Passy et de Lamartine. Never have I said that work is theft (*)
– on the contrary… – So, they conclude, the product is the PROPERTY of the producer.
You acknowledge it yourselves – there you are, caught by your aphorisms, convinced by
your own words.
Tread softly, if you please: I think that it is you yourselves, Messieurs, who are
mystifying yourselves by your false metaphysics and your grandiloquence. Allow me
first of all to make a little observation: it will become clear afterwards on which side the
sophism lies.
A man writes a book: that book is his – I can say this without any trouble
whatsoever – just as a piece of game belongs to the hunter who has killed it. He can do
whatever he likes to his manuscript: he can burn it, have it bound, give it as a present to
his neighbour – he is free to do all these things. I would even say, with the Abbé
Pluquet,** that since the book belongs to the author, the author has a property in his book
– but let us avoid ambiguities. There is property and property. This word is subject to
very different meanings, and it would be a ludicrous way of reasoning to go over, without
any other transition, from one meaning to another, as if we were always dealing with the
same thing. What would we say about a physicist who, after writing a treatise on light,
and consequently being the proprietor of this treatise, claimed to have acquired all the
properties of light; who maintained that his previously opaque body had become
luminous, radiant, transparent, that it could travel at the speed of 180,000 miles per
second and therefore enjoyed a kind of ubiquity? You would say that it was a great
________
(*) Proudhon is alluding ironically to the famous paradox “La propriété, c’est le vol!”
from his 1840 book Qu’est-ce que la propriété?
(**) See f_1778.
Chapter 1 Page 16
[15 ECONOMIC DEMONSTRATION]
pity; that the man might certainly be a scientist, but that unfortunately he was mad. This
is more or less the situation you are in, and one could apply to you what the Governor of
Judaea said to St Paul: Multae te litterae perdiderunt [‘Your great learning will be your
undoing’] when from property in the product you deduce the creation of a new kind of
landed property. In springtime poor peasant-women go to the woods to pick strawberries,
which they immediately carry to market in town. These strawberries are their product and
consequently, to use the arguments of the Abbé Pluquet, their property. Does this prove,
though, that these women are what one calls proprietors? If one were to say this,
everyone would think that they were the proprietors of the forest from where the
strawberries came. But alas! quite the opposite is in fact the case. If these sellers of
strawberries were proprietors, they would not be going to the woods to look for the
dessert that will be eaten by the proprietors: they would themselves be eating them.
So let us not go on so lightly from the idea of production to that of property, as
Chapelier did in 1791, thereby bringing this confusion into the law. The synonymity
which some people are trying to establish here is so little justified that common usage,
too, has pronounced itself against it. It is generally accepted in everyday parlance and in
science that if someone can accumulate in his person the dual status of producer and
proprietor, these two titles nevertheless differ from one another and are frequently even
opposed. Certainly, the product constitutes the credit [l’avoir] of the producer, as the
book-keepers say; but this credit as such is not yet CAPITAL, still less is it PROPERTY.
Before getting to that point there is quite a distance left to go. Now, our task is not to step
over this distance, as M. de Lamartine does with his grand words, which resemble stilts,
but, rather, to clarify and carefully mark it out.
To put it in two words, and also to return to our comparison, the work of a writer
is, like the harvest of a peasant, a product. If we go back to the principles which underlie
this production, we come to two elements from whose combination the product results:
on the one hand, labour, and, on the other, a certain tenement [fonds], which for the
farmer is the physical world, the soil, and for the man of letters it is the intellectual world,
the mind. When the terrestrial globe was carved up, each of the portions on which the
farmers obtain their harvests was called landed property, or simply property – something
that is quite different from the product, since it exists before the latter. It is not my task
here to look for the
Chapter 1 Page 17
[16 LITERARY ENTAILMENTS]
causes of this institution of landed property, which my opponents do not attack in any
way, and from which they merely seek a counterfeit [analogy]. These causes, which are
of a rather elevated degree, have nothing to do with our current investigation. I am
merely availing myself of the distinction so clearly established between the agricultural
product and landed property, and this is what I have to say: where a writer is concerned, I
can certainly see the product, but where is the property? Where can it be? On which
estates are we going to establish it? Are we going to carve up the world of the spirit on
the same model as the terrestrial globe? I will not oppose this if it is possible, if there are
sufficient grounds for doing this; if an appropriation of this kind does not in itself awaken
any repugnance, does not contain any inherent contradiction; if, in this respect, the
disparity between the physical world, which is susceptible of division and which does
have to be divided up, and the intellectual world, incompatible as it is with the idea of
property, is not one of the organic laws of the constitution of mankind. Well, have these
questions been answered? Have they even been posed?… Will it by chance be the very
product of the writer, will it be the book, this conquest of genius, that, detached from the
intellectual joint stock, is in its turn to become a stock for exploitation, an item of
property? How, on the strength of which social relations, of which legal fiction, by virtue
of which motives is this metamorphosis to be carried out? This is what you have to
explain – what I will try to do very shortly, but what you completely fail to do, since
without any transition you go straight from the idea of production to that of property. The
man of letters is a producer; his product belongs to him: no one disagrees with you there.
But, once again, what does that prove? That one doesn’t have the right to claim it from
him in any way? All right. And what then?…
But here a new question arises which begs to be discussed separately.
§ 4. – On the exchange of products. – That property does not result from relations of
exchange [rapports commutatifs].
Since in order to establish literary property it was necessary to start by
demonstrating the reality of literary production, and since, moreover, the former does not
result from the latter, one has to assume that this property, if it is to take form, will be the
effect of relations which emerge subsequently. So let us take up the question again at the
point where we
Chapter 1 Page 18
[17 ECONOMIC DEMONSTRATION]
left it, and let us follow the literary product in its economic evolution.
All wealth obtained by labour is at the same time a production of expended force
and the manifestation of an idea. When it leaves the hands of the producer, it is not yet
property: it is simply a product, a utility, an object of use or consumption. Now, the
condition of mankind would certainly be deplorable if each producer were reduced to no
more than the use of his own specific product. Instead, this use has to become general,
and, after having been a specialized producer, man has to become a universal possessor
and consumer. The operation by which the consumption of products is generalized for
each producer is exchange. It is therefore through exchange that each product or service
attains its value; it is through exchange that the idea of remuneration, payment, salary,
wages, indemnity etc. arises for all categories of production.
Property – whenever I hear this word I think of that landed, patrimonial property,
of which the division of the land has given us such a clear idea, and which is being
invoked as an analogy for the intellectual realm. Property, I say, which, as we have seen,
cannot result from production – can it arise from exchange? This is what we have to
examine now.
The laws of exchange are that the products are exchanged for one another; that
their evaluation or compensation take place in a contradictious and free discourse,
designated by the words supply and demand; that once the exchange has been carried out,
each exchanging party becomes the owner of what he has acquired to the same degree
that he was of his own product, so that after the delivery has been made and the exchange
accomplished, the two parties do not owe each other anything.
These laws are universal: they apply to all kinds of products and services, and do
not admit of any exceptions. The products of pure intelligence can be exchanged with
those of industry in the same way that the latter can be exchanged between themselves: in
both cases the rights and obligations which arise from the exchange are similar. And why
is that? Because, as we observed earlier (§ 2), the products of human activity are all
essentially of the same nature and of equal quality, consisting of an expenditure of force
and the manifestation of an idea; and because all these products, from the idea expressed
verbally to the transformation or displacement imposed on matter, are limited creations,
ephe-
Chapter 1 Page 19
[18 LITERARY ENTAILMENTS]
meral and imperfect creations, whose estate lies outside of man and whose proportional
average does not vary one bit. This is what allows the products of man to be exchanged,
to serve as a mutual measure – in short, to be used as payment for one another.
Now, in all this operation of exchange [dans toute cette commutation], I do not
see anything appear that could turn the exchanged thing into a rent- or interest-yielding
estate, as is the case with land – in short, I cannot see any property.
One can divide an operation of exchange into a sequence of moments, one distinct
from the other, all of which are important in some way and which in commerce
sometimes give rise to serious difficulties. There is the proposition or supply, which
sometimes precedes demand, and sometimes follows on from it; the appraisal or
negotiation of price, the sealing of an agreement, the transport, delivery, the inspection of
the goods, the receipt and payment of these. Amongst these diverse moments, which lead
to incidents of all kinds and on each one of which volumes have been written, it is
impossible to situate or conceive of a fact which could modify the first idea – there is
nothing that could change the status of holder, producer or acquirer of the thing and turn
it from a mere exchanging party into what we understand by the word proprietor.
Further on we shall address the issue of savings and capital, and we will ask
ourselves, as we are doing here, whether the notion of savings or capital can lead to that
of property. For the time being we are just considering the question of exchange.
So what I am saying is that just as the idea of literary production is by no means
sufficient for justifying the creation of a literary property – certainly not more so than that
of agricultural or industrial production would be sufficient to justify the creation of a
landed property – the notion of exchange, too, is even less sufficient, and this for two
reasons which are equally peremptory. The first is that the exchanged work is always
nothing more than a product, a fungible and consumable thing – the opposite of what, on
the basis of a generally accepted usage, we call property, that is, a tenement [fonds]. The
second reason is that after the exchange the object does not belong any longer to the
person who created it, but, rather, to the person who acquired it: this leaves the status quo
unaffected and turns upside down the hypothesis of a property to the benefit of the
producer.
Thus, the analogies so often invoked – and now accepted everywhere – of literary
production and industrial production, far from leading us towards any idea of property
whatsoever, actually take us further away from such a notion. This is what should be
understood better than by anyone else by
Chapter 1 Page 20
[19 ECONOMIC DEMONSTRATION]
Messrs Frédéric Passy and Victor Modeste, who both maintain, with all the vigour of
which they are capable, that property is by no means a consequence of a productive
activity, and that those who, like M. Thiers, base it on the principle of the proprietor’s
labour are actually the enemies of property. It is evident – and I personally am of this
opinion – that landed property has another origin; that it is superior, if not prior to labour,
and that one would simply entangle oneself and compromise all one’s arguments if one
were to insist, as the champions of perpetuity do, that the man of letters has the status of a
producer, in order to derive from this that of a proprietor.
We live amongst producers with different specializations – these producers
exchange their products amongst themselves, but there is nothing in this exchange which
suggests the idea of, or could give rise to, a right of landed or patrimonial property.
Possession – this is the appropriate term when one speaks of the right of the producer or
the exchanging party to the product – begins for everyone with the product, nothing more
and nothing less, and ends with the act of exchange. Do ut des: I give, so that you may
give – give me a lesson in writing, arithmetic, or music, and I will give you some eggs
laid by my hens, a pint of my wine, some fruits which I have reaped, some butter or
cheese from my flock, as you wish. Sing me your poem, tell me your story; show me
your methods, your industry, your trade secrets, and I will house you, I will feed you, I
will pay your expenses for a week, a month, a year, for the whole period that you are my
teacher. Once the products and services have been exchanged, what happens then? Each
of the exchanging parties makes his own personal profit from what he has received,
assimilates it, distributes it to his children, to his friends, without the vendor having any
right to protest against this communication. Has one ever heard, for example, that the
young people of both sexes from France, Switzerland, or Belgium, who go to Russia to
work as tutors and governesses, stipulate for themselves and their immediate heirs, by
virtue of their appointments and fees received, that their pupils are in their turn not
allowed to become instructors of their compatriots, since tutoring is the property of the
tutor? That would be giving and retaining – something which utterly defeats the principle
of exchange. If that were so, the Russian landowners who engage these young people
could also demand that, after having finished tutoring their children and having received
the agreed salary, they then had to consume their emoluments on these landowners’
estates, and not
Chapter 1 Page 21
[20 LITERARY ENTAILMENTS]
carry away any Russian gold abroad, which would be the most ridiculous of ideas, and
certainly the least acceptable. What the supporters of literary property are dreaming about
is, however, something quite similar: we will soon see under which pretext they do this.
In summary, everything that, as the product of either pure thought or industry,
comes on to the market is considered to be not an estate or a property, but, rather, a
fungible thing, one which is fully consumable by usage and does not recognize any other
master than he who has produced it or paid for it with something equivalent. With
property the situation is different. Land is in no way the product of man; neither is it
consumable, and property in it can be assigned to everyone apart from the person who
tills it. There is no clearer distinction than this: the monopolists’ line of reasoning
assumes it, even though they are themselves unable to express it, and all their talent
consists of muddling up ideas, confusing notions, giving rise to misunderstandings, and
drawing conclusions which are wholly unrelated to their premises.
§ 5. – Specific difficulties in the exchange of intellectual products.
People’s minds have been disconcerted, on the one hand, by the apparent
heterogeneity which exists between the various categories of production; and, on the
other, by the imperfect nature of the exchange processes, and, consequently, also of
commutative law.
Between the shepherd who produces butter, meat, and wool, and the manufacturer
who makes cloth, hats, or shoes, it seems as easy as it is natural to carry out an exchange
of goods. Each one’s labour is in this case incorporated into a material object – one that is
palpable and weighty, one that can be tried, measured, and tested, and the consumption of
which is of necessity restricted to the person of the purchaser and his family. Assessment,
transfer [tradition] and cash distribution [soulte] do not present any problems here.
Moreover, legislation in this matter goes back a long time and is quite precise.
But an exchange between these products and the work of genius that is an idea –
an idea which at first sight seems to be always left intact by consumption, and the
communication of which, made initially to a single person, can extend to infinity without
the producer’s intervention – does not seem as straightforward in practical terms. The
legislator
Chapter 1 Page 22
[21 ECONOMIC DEMONSTRATION]
hesitates, and it has happened more than once that the interested parties have started
calling out such words as exaggeration, on the one hand, and ingratitude, on the other. At
all times commerce has always been full of injustice: the Jews who for three thousand
years have been engaged in trade – have they learnt to distinguish between exchange and
speculation, between giving credit and usury? The workers of pure thought complain
about having been given a raw deal, but what about the serfs of the land – were they
treated with velvet gloves?!... So let us examine these things dispassionately, and, just
because there is so much prevarication in this subject, let us not forsake common sense.
I will start with the simplest cases, moving on after that to the more difficult ones.
Let us assume a doctor is sent for to attend to someone who is ill: he recognizes
the nature of the ailment and then prescribes a medicine or suggests a course of treatment.
In this profession it is customary to calculate the fee due to the doctor on the basis of the
number of visits to the patient he has made, and the whole sum is paid to him once the
patient has recovered (in England, though, the doctor is paid after each single visit). What
has the doctor provided? Advice, a prescription perhaps, running to four lines of text – an
immaterial, intangible thing, which bears no relation to the price paid. One prescription
may indeed prove to be correct and save a person’s life – in that case a thousand francs
would not be too high a price to pay for it – but another may well not be worth the drop
of ink which was used to write it down. Now, everyone is aware that the doctor had to
leave his house in order to make this visit, that he had to give up part of his time, that he
had to make the journey on foot, in a cabriolet, or on horseback; that before becoming a
doctor and having a practice of his own he had to devote many years to studying, etc. All
that calls for indemnification of some sort: but what shall it be? No manner of calculation
would be able to give an exact figure. All one can say is that it is determined in
composite proportion to the expenses incurred by the doctor for his studies and training,
to the number of patients he has to see, to the competition he suffers from his colleagues,
and to the average level of prosperity of the families living in the area. In short, even
though there is no exchange of material objects, there is an exchange of values: that is
why the efforts of the doctor who saves a patient’s life and those of one who has the
misfortune of seeing the latter die are paid for in cash and at the same rates.
The teacher who rushes about town giving lessons is paid in the same way, and
according to the same considerations, as the doctor.
Now, it is worth noting that once the lesson has been given or the prescription
written, the person who has received these can do what he likes with them. If a pupil feels
like
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passing on to someone else what he has learnt, if a patient wishes to indicate to another
patient the treatment that cured him, nothing can prevent him from doing so: neither the
teacher, nor the doctor will start a law-suit because of that. If practicing medicine is
forbidden to those who are not equipped with a suitable diploma, this is so for reasons of
law and order and in the interests of public hygiene, but in no way because of a privilege
of some sort. It is open to everyone to attend classes at the Faculty of Medicine and
qualify as a doctor. In short, the principle which is inherent in the process of exchange –
namely, knowing that once the object has been handed over, it becomes the property of
the person who received it – this principle is fully and wholly fulfilled here as it is in
other situations, too.
With regard to a university professor, the procedure is slightly different: the State
awards him an annual salary – which comes down to exactly the same thing. I know you
will point out to me that there is a law which forbids the reproduction of his lectures by
anyone else. I can accept this precaution of the law, which does not want the professor’s
thoughts to be mutilated, adulterated, or travestied by unintelligent or malicious listeners.
The professor is responsible for what he teaches, so it is therefore he who is entitled to
supervise the printing of his lectures. Beyond that, any profit which the professor may
make from his public lectures, over and above his state salary, must in principle be
regarded as dual income. This is something that can be tolerated in view of, say, the
lowness of the professor’s salary or as an incentive for his zeal, etc. I am not discussing
these motives here: what I’m saying is that this benefit of publication constitutes an
[official] supplement to the professor’s wages, as otherwise one would have to see in this
a violation of the rules of commerce, which do not permit the same goods to be paid for
twice. What arguments can one possibly draw from this to justify the creation of a
perpetual literary rent?
The magistrate, the clergyman, the state official – they are all treated on the same
footing. They, too, are intellectual producers, and it was in order to elevate the status of
their duties, which people are reluctant to mix up with lowly industrial work, that such
terms as tenures, fees, allowances, etc. were invented – although all of these, to no greater
nor lesser extent than the more modest term of wages, imply one and the same thing: the
price of the service or product.
The State frequently awards its old employees a retirement pension. This pension,
which is essentially awarded for the rest of their lives, must also be regarded as an
integral part of their remuneration, so therefore
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it becomes standard practice [entre dans la règle]. In all this, I do not deny it, it is very
easy for abuses to creep in, but abuses do not cause the principle to disappear: rather, they
serve to prove it. After all, it is always the legislation of exchange which governs us, and
what does this legislation tell us? Supply and demand, free negotiation, a bilateral
contract, based on the principle of product in return for product, service for service, value
for value. Then, after the goods have been handed over, acknowledged, and accepted,
comes a receipt in full discharge [quittance]. Take note of this word: once the exchange
has been carried out, the parties are quits with one another. Each one takes away with him
his thing and disposes of it in the most unconditional manner, without being liable to pay
any royalties and in full sovereignty.
Let us now move on to the writer’s case. From what has just been said, it is clear
that if the writer were a public official, his remuneration would not present the least
difficulty. He would be treated like the university professor, like the magistrate, the civil
servant, the priest, all of whom carry out, like him, a work of genius, and who frequently,
without actually writing anything down, expend more eloquence, knowledge, philosophy,
and heroism than he who puts his reveries into verse, into written dissertations,
pamphlets, or novels. In this respect making any distinction between these various
services or products would be impertinent and insulting. Now, it is the case that the
hereditary principle has been abolished for the magistrature and priesthood, just as it has
been in industry: no more guilds and sworn trades. The salaries are annual and,
depending on the circumstances, may be rounded off by a pension upon retirement.
Likewise, competitions are held for these posts, just as industry is now subject to
competition. If he received a State salary, the man of letters would therefore ipso facto,
because of his status as a wage earner and by virtue of the contract whereby his labour is
hired [contrat de louage d’ouvrage] and which ties him to the State, lose any property in
his works. For he would have exchanged them for a fixed salary, which, since it covered
his whole life, would not need to be supplemented by a pension. – In France the
clergyman, who receives a State salary but has been given a mediocre stipend, charges
surplice fees over and above his salary and yet still complains about it. Teachers are paid
a certain sum for holding exams, academicians are issued with tokens [jetons de
présence] when they attend meetings. It would be a good thing to get rid of all these
bonuses, which are a vestige of our old customs, when people didn’t have very clear
ideas about the economy; when judges received douceurs or gratuities [épices] and the
clergy enjoyed benefices; when the nobleman used his privilege of arms to accumulate
that of property, whereas the peasant forever remained subject to mortmain and liable to
forced labour; when no distinction was made between the prince’s Civil List and the
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public treasury; when, finally, production was servitude and exchange was mutual
swindling.
§ 6. – The liquidation of author’s rights.
So now what is left is the independent writer, that is, the writer who is neither a
teacher, nor an official, nor a priest; who casts his idea to the four winds, onto sheets of
paper where a printer has laid it down in block letters. How is his remuneration to be
regulated?
The kings of France, who were the first to grant printing privileges, have told us
how, and all we have to do is to follow the path which they opened up. The author is an
exchanger [échangiste] – is that not so? With whom does he exchange, then? It isn’t with
someone in particular – that is neither with you nor with me – but, rather, IN GENERAL,
with the public. Now, since the State, as the organ of the public, does not allocate any
salary whatsoever for the writer – and I hasten to add that I am not asking for writers to
receive such a salary – it is clear that the latter must be regarded as a promotional
entrepreneur [entrepreneur de publicité] who carries on his trade at his own risk; that
from the commercial point of view his publications are an uncertain thing [chose
aléatoire]; that, consequently, a tacit contract comes into being between him and society,
whereby the author is to be remunerated, on a contract basis, by a temporary privilege of
sale. If the work is in high demand, the author will make a large profit; if it is rejected, he
will reap nothing. He is granted thirty, forty, or sixty years in which to cover his
expenses. I do not hesitate to assert that this contract is perfectly in order and just; that it
fulfils all necessary conditions, that it respects all rights and principles, and satisfies all
objections that might be raised. The author is, in short, treated like everyone else – nay,
like the very best. On what basis could he claim to be treated differently and, in addition
to what commercial law and commutative justice,* and economic reason, grant to him, to
obtain a perpetual rent?
This deduction is clear, and I defy anyone to find the least shadow of sophistry in
it. Let us repeat it one more time by summarizing what has been said:
Requests have been made to the government to institute, on behalf of writers, a
new property, a property sui generis, which would be analogous to landed property.
I am not saying anything against landed property, which was established on
considerations of a different sort, and which nobody is calling into question in this case. I
am just asking on what basis this analogy is made?
________
*) Proudhon is invoking a notion here which goes back to Plato and Aristotle.
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[25 ECONOMIC DEMONSTRATION]
In addition to that, the supporters of perpetual remuneration enter into an
economic/juristic dissertation which sets out from the notion that the writer is a producer,
and that as such he is entitled to the exclusive enjoyment of his product. – I accept that
comparison, but I must observe that the idea of production and the right which ensues
from it do not at all entail as consequences the institution of a property in the sense which
everyday usage has given to this word, and which is also the sense that one hears being
applied to men of letters. That the writer is entitled to the exclusive use of his manuscript
without sharing it with anyone, if that is what he wishes – once again, what does that
prove?
My opponents will tell me that every product or service deserves a reward, which
means that if the author presents his work for consumption, he is entitled, as an
exchanger, to receive an equivalent [commodity] in return for it. Again, I
agree with this condition, but I would like to point out to my antagonists that the idea of
exchange does not, any more than that of production, imply the idea of property. And,
always following the chain of analogies, I can demonstrate by the rules of commerce and
by the principles of commutative justice that the writer who has been awarded a
temporary privilege for the sale of his works has been sufficiently paid. Certain people
want this temporary privilege to become a perpetual one. This is just as if the peasant-
woman I was talking about, who is offered 50 centimes for her basket of strawberries,
were to reply: “No, you must pay me every year, in perpetuity; you must pay me and my
heirs 10 centimes every year”; it is as if the producer of corn, meat, wine, etc. were to
refuse to be paid directly for his wares and insisted on substituting a perpetual rent for
their market price. It would be like asking, as Jacob did, for a right of primogeniture in
exchange for a plate of lentils. In that case there would soon not be any more commerce,
since each family would have to produce everything on its own, so as to avoid being
crushed under the countless yearly rental dues [redevances] which would arise from
every single exchange. The absurdity of this is manifest.
Do these people at least have a plausible pretext for demanding on behalf of
artistic and literary producers, and with the exception of all other categories of producers,
this perpetuity of tribute? No, they are not alleging anything. What the advocates of
perpetuity are demanding is a purely gratuitous gift, which does not rest on any
consideration relating to, say, the dignity of authors and artists, or the excellence of their
products, and which, consequently, is quite out
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of order. Why this kind of eternal pension for producers whose works, being the
expression of individuality and of the moment, just like all other types of product, are by
their very nature limited, imperfect, fragile, precarious, and ephemeral? Do these people
not realize that the creations of pure thought, just like those of industry, are used up
rapidly and obliterated by the incessant movement of general thought, that they are
absorbed and transformed by other works? A book lasts on average for no more than
thirty years: beyond that term it no longer corresponds to the state of people’s minds; it is
overtaken, it has served its time; people stop reading that book. Some books – a barely
perceptible minority – do survive across the generations, but as monuments of ancient
languages, as historical testimony, as objects of archaeology and curiosity. Who
nowadays reads Homer and Virgil? It takes a whole course of studies in order to
understand them and appreciate their beauties. Attempts have been made to perform the
plays of Aeschylus and Sophocles, but they never succeed. The Bible, as it was passed
down from Israelites to Christians, has, so to speak, been travestied. Quite recently we
saw signs of how Béranger [who died in 1857] has been forgotten: within a few years no
one will talk about Lamartine or Victor Hugo. Like thousands of other writers, they will
remain in the memory of inquiring scholars. That will be their immortality.
My opponents will retort that if such is the duration of works of the mind, what
drawback can I possibly see in granting writers a perpetual privilege?
The drawbacks which I see in making such a concession are serious and of
several kinds. First of all, perpetuity is unjust: it violates the law of exchange, which
demands that each product be paid, as far as is possible, by an equivalent one. Going
beyond that means hallowing parasitism and injustice. Secondly, this perpetuity would
signify an abandonment of the public domain, which, instead of profiting from the
intellectual labour of private individuals, would find itself positively weakened and
diminished. Lastly – and this is something which the champions of perpetuity do not
realize – the consequence of this would be that the duration of literary works, instead of
following its normal course, would be artificially and indefinitely prolonged by the very
fact of the privilege; that it would therefore become an obstacle for the production of new
works, and all this to the great detriment of progress. I have nothing more to say about
the first of these propositions – that is, the violation of the principles of exchange. I will
return to the two other consequences in the third part of this investigation.
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[27 ECONOMIC DEMONSTRATION]
§ 7. – In response to some difficulties.
Before going any further, allow me to dispel some doubts which arise from the
false terminology used both by the supporters of literary property and by those who
combat it. I know that all these details are tedious, but because of these doubts it is
necessary to go into them.
The two principal points to note here are: 1º) that there is a transaction of
exchange between the author and the public; 2 º) that, as a result of this exchange, the
public is put in possession of the work and becomes, subject to payment [of the author],
its proprietor. Once this has been taken note of, everything else becomes clear: the clouds
accumulated by the many debates on this matter will be seen to vanish.
In order to establish his concept of an intellectual property, the Abbé Pluquet
compares a work of literature to a patch of LAND [fonds] cleared by the author, and the
communication of it which he then makes to the public is the HARVEST. – One can see
what absence of logic, and even of grammatical sense, marks Pluquet’s writing. The work
of genius is not a piece of land [fonds], but a product, which is something altogether quite
different. Its communication is not a harvest; it is the very fact of its exchange – that
which jurists call handing over [tradition] and tradesmen call delivery of goods
[livraison] – it is precisely the act by which the author dispossesses himself of his work.
It is absurd to give to this price the name of harvest – unless, perhaps, one were to say
that the price of a sack of corn is the harvest yielded by the corn, which would of course
be a case of mixing up different concepts and things. The tilled and sowed land yields
corn as its harvest; and this corn, after being taken to market and sold, receives its price:
those are the facts. Similarly, someone who explores the fields of thought extracts a
product from them which is his book; and this book, by being published through printing
and sold, secures to the author his remuneration.
Others, taking up Pluquet’s rigmarole and insisting on treating the literary work as
a field, call the copies which the printer makes of such a work the fruits of this field.
Now, goes their argument, every landed proprietor makes these fruits his, and so etc…
All this amounts to repeating, in a different guise, Pluquet’s absurd notion. The work of
an author is a more or less shrouded idea, which exists within him independently of
printing, of writing, and I would almost say of words as such. The discourse in which
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this idea is formulated; the paper and letters by whose means this discourse, first
conceived in the mind and then uttered verbally, is fixed and rendered so that it is visible
to the eye, are not the offspring of the idea, the fruits which emerge from it, but, rather,
the means of manifestation which it avails itself of. It is an alien product which comes
here to the author’s aid, almost like the midwife who comes to the aid of the woman who
is giving birth. The truth of this is so indisputable that the product of the printer, this
auxiliary, non-responsible product is paid by the author or by his publisher before the
work of the author himself is paid.
M. Victor Modeste, in pursuing this false analogy of the literary product to a piece
of LAND [fonds], protests against the term salary, which some opponents of perpetuity
had inappropriately used for defining the author’s right. He argues that the author is not
in the pay of anybody; that there is no hiring of labour at all in his case; that he does not
create by order; that, therefore, the term ‘salary’ is inaccurate and gives a false idea of the
thing in question. All right, then: let us cast away the word ‘salary’, which could only
really be applied if the writer were to be proclaimed a public official, and let us simply
say that the author is a producer; that consequently he is entitled to receive a
remuneration for the communication of his work. But what would M. Victor Modeste
gain from this for his argument? Product in return for product, service for service, idea
for idea, value for value: we remain throughout in the sphere of commutative law, and
outside that of property.
In arguing against the perpetuity of author’s rights, some people have invoked
public utility. This is an ill-starred argument to use: if the perpetuity of a writer’s rights
could arise from his status as a producer, as the supporters of literary property have tried
to maintain, there would be no public utility ensuing from this; the [author’s] property
would have to be acknowledged beforehand, and then the author would have to be
reimbursed by an equivalent. Public utility has nothing to do with this matter – whereas
public law certainly does. By the fact of having been published, a literary work enters the
domain of publicity – that is, from then on it forms part of the collective patrimony
[l’avoir collectif], subject to clearance [liquidation] of the writer’s rights in accordance
with the principles of exchange.
Chapelier, in his report on the law of 1791,* committed a similar error when he
said that: “Once the privilege of sale has expired, the property of the public begins.” This
is again to misunderstand the nature of the contract of sale and exchange, and, in
particular, that which
______
*) See f_1791.
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[29 ECONOMIC DEMONSTRATION]
is considered to come about between the author and the public. In all transactions of sale
or exchange the property of the purchaser begins once the goods have been delivered or
received, even if the payment were not to take place until much later. Now, in the case of
books the delivery [livraison] takes place at the very moment of publication: therefore the
public’s property begins with the latter. Let us not confuse, as Chapelier did, these two
things: the property in a literary work and the right to sell copies of it. The object of the
former is the book’s content: it terminates for the author and begins for the public at the
moment it is put up for sale. As for the privilege, which is simply a guarantee of
remuneration given to the author and which concerns no one else apart from those who
trade in books, that terminates for the author and begins for all booksellers alike once the
statutory term [of copyright] has expired.
This taking possession by the public of a work which it pays for seems to the
champions of literary property to be an act of usurpation. After having said that the
communication of the manuscript is the author’s harvest, the Abbé Pluquet pretends that
this communication, the exclusive property of the author, cannot be carried out without
the latter’s permission by those who have received it from him. Such a communication,
adds M. Laboulaye père, would be an act of theft: it would be like gathering crops in
someone else’s field… They will never get over this! Let us not confuse here trust and
communication. Insofar as a work is unpublished, those to whom the author confides his
secret would not be able to divulge it without committing a breach of trust and an act of
injustice. But if the communication has been paid, if a single copy has been sold, that
counts as publication. Payment of the price entails for the purchaser the right to use it, to
enjoy it, to share it, to quote from it, to read from it in public. Would you forbid the
enthusiast who has just paid for a book to invite to his house a group of friends, to read it
aloud in their company, to lend it to them and circulate his copy? One would indeed have
to go as far as that, if one were to follow to its logical conclusion the reasoning of these
rabid advocates of literary property. In Paris it happens quite frequently that workers pool
their resources together, in order to buy a book which their means would not allow them
to buy individually. These associations for the communication of writings – will they be
prosecuted for encroaching on the property of authors?
Here the opponents of literary property succumb to another excess. It has been
claimed that the counterfeiter, in reprinting a
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book, was simply making use of what belonged to him. In theory that is true. Everyone is
entitled to communicate, lend, and copy a book which they have bought, and to distribute
the copies of it. In practice, though, they have to wait until the author’s privilege has
expired, because to do otherwise would be to deprive the author of his legitimate
remuneration.
If that is the case, I hear my opponents say, if the property of a work passes from
the author to the public on the day that it is published, the author is no longer able to do
with his work what he would like to: he would no longer have the right to correct it, to
modify it, to expand or abridge it, since this would amount to a derogation of public
property.
This objection, so delicate as it is for authors’ self-respect, can be resolved just as
easily as the other ones: as a matter of fact, it is not even an objection. One can concede
that for the whole duration of his privilege it will be left to the author’s discretion if, in
subsequent editions, he should wish to correct himself, to make amendments to his work,
even to retract his own arguments, to improve and enrich his work. But he is no longer
free to suppress it, for, I repeat, on the one hand, from the commercial point of view, the
public has been put in possession of the work; and, on the other, as far as the sincerity of
the work, the trustworthiness of what is contained therein, its literary probity, are
concerned, the author cannot any longer ‘unsay’ what he has once said; there is nothing
he can do so that what the public has read is ‘unread’, as it were, so that readers do not
take note of it and fail to appropriate it and thereby lose the right to call the author to
account for it [le représenter au besoin à l’auteur], in spite of all his dissimulations and
retractions.(1)
___________
(1) Here I can cite a ruling of the Imperial Court which concerns me personally. In 1836,
I had anonymously published a short treatise on general grammar to follow suit to
Bergier’s Éléments primitifs. My work sold almost no copies at all. A few years later,
after further studies had convinced me that my first essay was defective, I decided to
sacrifice it and sold as waste-paper what I had left of the edition. A bookseller bought
these copies, and, in 1852, he put them up for sale with my name on them. Certainly, this
was my work, I did not deny it. But the point is that I had not initially signed this work
because I wasn’t entirely confident about it, because I had wanted to publish it subject to
further revision and amendments, and I had had every reason for congratulating myself
on this act of discretion on my part. So why was someone now selling, under my name
and without my consent, a work which I had redone, which I had reserved the right to
republish myself, and from which I was expecting the reimbursement of the losses I had
suffered with my first edition? Of course, I was right to consider myself injured, both as
an author and as a publisher. The Commercial Tribunal of Besançon decided in my
favour, but the Imperial Court, which considered the facts of the case from a different
point of view, and
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[31 ECONOMIC DEMONSTRATION]
If the writer whose work has entered the sphere of publicity no longer has in
theory the right to withdraw it, it is with even greater reason that such a right cannot and
should not belong to his heirs. In this respect, the line of argument of the champions of
the public domain requires yet another rectification. One of the reasons why, according to
them, the principle of literary property should be jettisoned, is that the families of
authors, driven by considerations or interests that are alien to the latter, might seek to
destroy or mutilate their works. This argument is as faulty as that which invokes public
utility, for if this property is legal, if it is transferable, nothing can restrict it, neither in the
person of the author, nor in his family. However, it is clear that the jurists whom I am
referring to have looked at this question the wrong way round. It is not at all because a
writer’s family might abuse of its property right and destroy his work that this property
should be rejected. On the contrary, it is because the public has been put into possession
and irrevocably turned into [the work’s] proprietor, as a result of publication, it is because
an exchange has taken place, that the author and his family lose the right to dispose of the
book with full sovereign power, in compensation of which they are anyway awarded a
temporary privilege of sale.
__________
evaluating them in an arbitrary manner, decided otherwise. It allowed itself to be
convinced that I had instituted legal proceedings out of mischief; that I was guided not by
love of the truth, but by the wish to cause some pages which were compromising for my
self-respect to disappear; that it was intolerable that a writer should lie to the public in
such a way etc. To which I replied that the bookseller had merely to have waited till my
new publication was ready; that then he would have been free to compare the two works,
to underline the passages that served to condemn me, and then, if that was the conclusion
he came to, to reproach me in public for my insincerity. These observations were
considered to be specious, and the sophist was nonsuited. The Court, I repeat, was right
on one point: that a writer’s idea, once he has published it, becomes public property. But
the moment hadn’t then come yet to apply this principle against me, since I was myself
preparing to bring out a new edition, since my privilege as a publisher was guaranteed by
the law, and so by authorizing a publication which I disclaimed, my interests were being
prejudiced in a very real manner.
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§ 8. – On credit and capital. – That the notions of savings, capital, loaning out
[prestation] or limited partnership investment [commandite] cannot be used to deduce
that of a literary property, supposedly analogous to landed property, and give rise to a
perpetual rent.
“But,” I hear my adversaries say, “your theory is fundamentally unsound: it rests
on an inaccurate comparison. What takes place between a writer and the public is not an
exchange, as you call it. Rather, it is more like a loan. For, indeed, the literary product
does not belong to those which are used up, like the majority of industrial products. The
communication of this product constitutes therefore not a transaction of sale or exchange,
but, rather, one of loaning [prestation]. Now, unless one were to claim that the loan ought
to be for free – something that would not be recognized as legitimate practice in any
country – one must concede that the publication of a work of literature, science, or art,
just like the lending of money, the renting of a house, of a ship or a machine, can give
rise to a perpetual revenue. Undoubtedly, the writer is free to hand over for nothing the
fruit of his exertions – generosity and self-sacrifice as such have never been condemned
amongst people. Equally undoubtedly, he has the right to turn the product of his sleepless
nights into an object of exchange, and, after having charged royalties for twenty or thirty
years, to renounce its usufruct and to launch his book into the public domain. But that
would on his part be a complimentary act, a veritable donation, in the absence of which
common sense and all possible analogies dictate that rent or interests should be paid in
perpetuity to the writer.”
I certainly do not intend to discuss here the question of lending on interest and the
gratuitousness of credit: that would mean provoking a new scandal and encouraging
people to accuse me of sophistry even louder than before. I have said it once to Bastiat: I
don’t want anything for nothing; I realize that if my neighbour renders me a service by
lending me, say, some grain, or a tool, he has the right to demand compensation for that.
All I am asking for is not to be forced to pay interest when I am able to come up with a
better solution: I am entitled to do without someone else’s investment [commandite] in
my business if I can remedy my distress by other means. At any rate, I intend to pay only
that which is fair. That is my profession of faith with regard to lending on interest. Thus,
the holders of government stocks, the shareholders
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of large companies, the capitalists of the Crédit Foncier and the Crédit Mobilier [national
mortgage banks], the constructors of houses etc. need not raise the alarm: I am not going
to interfere with their rights any more than I am interfering with that of property-holders.
What I am maintaining is that the communication to the public that is carried out by an
author is in no way an operation of credit. Neither is it lending, nor letting out [location],
nor limited partnership investment. As I have explained above, it is purely and simply a
commercial transaction, one of exchange.
Everything in the reasoning of my opponents is false, illusory, and contrary to the
principles of economic science and business practice. It will not be difficult for the reader
to convince himself of this, however little he may follow the thread of my arguments.
And, to start with, those who argue that an intellectual product cannot give rise to
an exchange transaction because it is not physically used up are parting from a false
hypothesis. That presupposes in the first instance that exchange covers exclusively those
things that get used up, whereas lending covers those which aren’t consumable. Now,
neither of these suppositions is true: the provision [prestation] of food supplies, for
example, can most certainly give rise to an interest charge; just as the lending of capital,
land, and houses can turn into an exchange transaction. Corn, wine, everything that can
be consumed, can serve as material for a loan, commodum (*). Conversely, land and real
estate, everything which is not consumed, can serve as the material of a sale, venditio. All
legislations recognize this. The consumability or fungibility of the product is of no
consequence here: by itself it is certainly not a sign that the contract established between
the producer and the consumer or user is a contract of letting out or hire, or a contract of
exchange. Other signs are required for such a diagnosis to be made.
Furthermore, is it really true to say that the intellectual product is not consumable
by its very nature, that it is eternal? I have already had occasion (in paragraph 2) to
observe that this is by no means so: I can therefore only repeat, albeit in different terms,
my previous observation. What man produces by himself in the realm of philosophy and
art, just as in that of industry, is neither matter, nor ideas, nor laws. Matter is given by
nature in the form of substances and bodies, both organic and inorganic: man would not
be able to create or destroy a single atom of these. Ideas and laws are given to man by the
contemplation of things: he cannot suppress or invent a single one
________
*) In this specific sense ‘loan of an object’.
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of these. The truth does not depend on him: all he can do is to discover it step by step,
laboriously; to formulate it as best as he can in words, in writing, in the works of his art
and industry. He is also free, at his own risk and peril, to ignore it, to shut his eyes to it, to
proscribe it. Mendacity and sophistry are open to him – he will very soon realize what
they are worth. As for beauty and justice, they are as independent of our reason and our
will as truth and ideas: in this respect, we are never faced by anything other than the
choice of either bringing ourselves nearer to them by incessant study and absolute
devotion, or of denying them by forsaking all dignity and all ideals. Then we will know
what price is to be paid for cultivating injustice and unseemliness: two things which have
sin as their common denominator.
So, once again, what is it that man produces if he does not in any way create
matter or life, if he does not make his ideas, if he cannot ascribe to himself the revelation
of beauty and justice; if his greatest glory, in everything that concerns the employment of
pure thought, is to accurately convey the truth, without any errors, deceit, or extras?
Man produces, as far as his limited being is able to, movements and formulas: the
former serving the purpose of giving, in a particular manner, a greater utility to the
substances of nature; and the latter serving as an approximation to what he can glimpse of
the truth and the ideal. All this is essentially personal, circumstantial, and consequently
transitory, subject to perpetual revision, and of little duration. It is this which allows one
to appreciate the fate of works of intelligence.
Which are the writings that seem most secure from the fluctuations of opinion and
progress? Those which deal with the exact sciences, with geometry, arithmetic, algebra,
and mechanics. Well, the fact is that the textbooks for these subjects are constantly being
renewed: there are almost as many of them as there are professors teaching the subjects,
and it is always the oldest textbooks which are the least used. What does this incessant
renewing mean? That truth and certainty vary? Not at all: it is just that for the same idea,
for the same truth, for the same law, each generation – nay! each cohort of students –
needs its own special formula. And this, in other words, means that after ten, fifteen, or
twenty years, the writer’s work is completely
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consumed. The form is worn-out: the work has fulfilled its purpose, it has done its
service, it is finished.
So it is not true to say that the writer’s product is inconsumable, that it is eternal,
and that therefore all subsequent generations are obliged to its author. What is eternal, I
repeat, are ideas and matter. Now, these things do not come from us. For ideas to become
properties for them to give rise to entailments, to an aristocracy of thought, the
intellectual world, as I said earlier, would have to be parcelled out after the manner of the
earthly globe. This parcelling out would have to be possible and, moreover, it would have
to be justified by considerations which no jurisprudence would be able to discover. We,
however, are just dealing with industrial and mercantile practice, with the purely
economic notions of production, exchange, price, salary, circulation, consumption,
lending, credit, and interest.
Having made these observations, both about the consumability of intellectual
products and the nature of things which can be lent, let us proceed to the theory of capital
and credit, and let us apply this to literary production.
First of all, the product of the man of letters, at the moment that it enters the
sphere of publicity, can it be regarded as capital?
Everyone knows what is meant by this word: it is a mass of products that have
been accumulated by saving and are intended for reproduction. Capital as such does not
exist: it is not a new object, it is a specific aspect of a product, considered in the light of
the use for which it has been destined. Thus, by the capital or chattel [cheptel] of a farmer
are meant such things as farming implements, live-stock, fodder, seeds, provisions,
domestic utensils, clothing, linen – everything that serves the work and subsistence of the
farmer and his family whilst they are waiting for the harvest. An artisan’s capital is made
up of the tools and raw materials with which he is furnished. Houses, machines, all types
of field labour are all capital assets. Man himself, insofar as he is considered as an agent
or engine for production, can be viewed as capital. A male subject of twenty-five years of
age, who is able-bodied and has learnt a trade, is on average rated at twenty-five thousand
francs.
Bearing all this in mind, it is not difficult to say what the writer’s capital consists
of. This capital is made up of his studies, his notes, of the projects he has started, of the
materials which he has gathered, of his personal library, of his manuscripts, of his
correspondence
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of his observations, of the skills he has acquired in the course of his work, of the means
of subsistence which he has secured for himself whilst waiting for the revenues which his
writings are eventually supposed to bring in for him. Such is the writer’s capital. But it is
not this which he puts into circulation; it is not this which he offers to the public, for the
latter would not know what to do with it. The writer’s capital, like all tied-up capital, is
something that is almost unmarketable, incommunicable, which is not worth anything to
anyone except to the person who can turn it to account [i.e. the writer], and which, if put
up for auction, frequently doesn’t even fetch 10% of what it cost. So with regard to the
writer, the published book is not a capital asset – it really is a product.
Let us now look at this from the perspective of the public. The author’s product,
once it enters general consumption – will it be treated as capital? I have no objection to
that: but on whose account does it act as capital? On the author’s or the public’s? We
have just seen what capital consists of for each category of producers: it is an
ASSEMBLAGE, acquired by way of commerce or exchange, of instruments, tools, raw
materials, provisions, by means of which the producer is able to accomplish his task of
reproduction. In short, it is working capital [fonds reproducteur]. Here the word ‘capital’
or ‘stock’[fonds] here implies composition, accumulation, assemblage. In accordance
with the various professions and trades, this assemblage embraces a number of articles of
varying magnitude. Insofar as these diverse articles are in the possession of their
respective vendors, they do not constitute capital: they only become that after they have
been acquired by the consumer.
So therefore it is not for the benefit of the person who produced and sold the
wares that the product yields interest when turned into capital in this way: it is, rather, the
purchaser who profits from it, who bears this interest in his conversion costs [frais de
reproduction]. So the writer certainly has the right to include in the price which he must
obtain for his works the interest on the money which he spent on building up his personal
library, on his research trips, on the scholarly projects from which he benefited: all this is
interest on his own capital. But that he should claim a perpetual royalty [redevance] from
the public for the deliveries which he has made to it, under the pretext that his works have
entered the flow of public capital – that would be ridiculous. Yes, the writer’s work has
become part of the public capital: the individual product of an individual now forms part
of the collective patrimony [l’avoir collectif]; but it is precisely for that reason that the given
individual cannot claim anything else apart from the price of his product, the
remuneration of his
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efforts. It is not for him that the collective assets will produce interest, if interest is at all
produced: it will, rather, be for the public.
Our whole reasoning therefore holds good: the conclusions we have reached by
applying the notions of product and exchange turn out to be identical when we come to
analyze the question of capital.
I know that some people will insist: “Why can’t the theory of lending and hire
also be applied to works of intelligence, just as that of exchange is applied to them? Why
can’t the writer’s remuneration, instead of expressing itself as a price that is paid once,
take the form of interest due to him? You accept the principle of interest; you
acknowledge that it is equally applicable to objects of consumption, mutuum* as it is to
things which are not used up and to real estate, commodum [sic].** Why, then, once
again, is this latter mode of remuneration, which satisfies the self-respect of writers, not
to be preferred to the other one, which seems less just and causes protests?”
Let us make ourselves clear: if it is only a question of replacing an operation of
sale and purchase by an operation of credit, I have nothing to say against that. What is
credit? An exchange for a long period, which entails for the lender, vendor, or traditor an
indemnity called interest, but which also presupposes that the borrower is ultimately able
to pay back what he owes, thus excluding the possibility that a debt and consequently the
interest due could ever be perpetual.
Thus, the trader who discounts his bills of exchange pays interest to the bank.
Nothing could be fairer than this, since he is after all receiving a service; since, while
waiting for his goods to be paid, he needs to come by available funds, and this capital is
lent to him. But it goes without saying that he only owes interest until the day on which
the bank has got its money back – a day that is fixed on the bill of exchange which is
presented at the discount.
Similarly, the consumer who buys on credit has to pay interest to the vendor: that,
too, is fair, since this interest is compensation for the delay in making the payment. Once
the payment has been made, interest ceases to be due. In this case, as in the preceding
one, the interest isn’t being demanded for its own sake: it is demanded simply as the
remuneration for a service, as the price of a temporary credit. The proof of this is that no
banker would consent to renew forever the liabilities of his clients, and that the latter
would give up their business
_________
*) In Roman law mutuum refers to a loan in which the borrower is entitled to consume
the goods lent and return an equivalent amount. (Black’s Law Dictionary)
**) In Roman law commodatum (misprinted in the original text) designates the
gratuitous loan of a thing, to be returned by the borrower to the lender on the terms fixed
in the contract. (Adolf Berger, Encyclopaedic Dictionary of Roman Law, 1953)
Chapter 1 Page 39
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or go bankrupt sooner or later, if they could only subsist on this circulation.
Thus, someone who raises a mortgage loan must also pay interest, but it is always
with the hope and the possibility of releasing himself from the mortgage as soon as he is
able to.
And, finally, the State creditor, just like a shareholder in the State railways, also
receives interest; but the State retains the right to redeem its debts; Companies [with
shareholders] are established for no more than 99 years, and it is seen as a misfortune, as
a sing of impoverishment and decadence if the State, instead of paying off its debts,
increases them; if a company, instead of recouping its outlay with a profit within the
prescribed period, is not even able to recover half of the money invested.
Everywhere you will find that credit is just a form of exchange: if this is what is
being demanded for intellectual production, I have nothing against that – it would just be
a case of sticking to the status quo. But who can fail to see that authors have something
quite different in mind? It is a perpetual rent which is being solicited – something that
goes beyond the notion of credit, just as it goes beyond those of production and
exchange.
All these pretexts, therefore, give out and refute one another. This claim to a
property is merely based on arrant trickery. From the moment that the work of genius is
legally and scientifically classified as a product, it is entitled to no more than a specific
remuneration, which can be done in two ways: either by life annuities, or by a temporary
privilege of sale. To ask for more than this would be neither credit nor exchange; it would
not be honest business dealings; it would be worse than usury, since usury, like interest,
does eventually come to an end. No, it would amount to turning human understanding
into a demesne [domaine], and to making the public, State, and society into serfs of
literature, which for them would be a hundred times worse than being serfs of the land.
§ 9. – On property [domaine] and personality. – Appropriation of the intellectual world.
Let us nevertheless admit for one moment the possibility of there being
intellectual property. In that case we would have to move on and consider its application
– and my question is where and with what could such a property be created?
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It would certainly not be on the basis of the writer’s product that this property
could be established: we have proved sufficiently that the idea of production in no way
implies that of property; that, accordingly, the product, subject as it is to the laws of
exchange, supply and demand, handing over [tradition], payment, and receipt, cannot
become an estate [fonds] on whose basis a perpetual royalty [redevance] might be
constituted.
Still less is it on the author’s capital that such a property might be established: this
capital, precious as it is for the writer himself but quite useless for the public, which cares
only for the final product, is a worthless security [non-valeur] that would certainly be
unfitting for the object which these new would-be proprietors have in mind. As for the
ideas of credit and interest, in which some people try to find an analogy that would
justify the idea of a perpetual royalty [redevance], they are utterly exclusive of such a
perpetuity in the first place.
So what other expedient is there left? Well, to appropriate the spiritual domain,
the realm of ideas, just as the land and the realm of matter have been parcelled up and
appropriated. M. de Lamartine is aiming for no less than precisely this:
«A man expends his energies on making a field fertile or on creating a lucrative
industry. You assure to him the possession of these for all times and, after his death, to
those whom blood kinship or his written testament designates. Someone else spends his
whole life in forgetfulness of his own self and of his family’s interests, in order to enrich
all of mankind after his death either by a masterpiece or by one of those ideas which
transform the world… So his masterpiece is born, his idea has blossomed forth: the
intellectual world seizes it; industry and commerce exploit it; it becomes the source of
riches; it yields millions of francs in labour productivity and circulation; it can be
exported like a natural product of the soil. And you would accept that everyone should
have a right to it except for the one who created it, except for the widow and children of
this man, who would be condemned to begging in misery alongside all this public
prosperity and the countless private fortunes that have been engendered by the thankless
work of their father!...»
M. de Lamartine mistakes the fanfares of his eloquence for coherent arguments.
For him, exaggerations, antitheses, exclamations, and harangues take the place of logic.
You ask him for a definition, and he gives you a painting; you ask him for proof, and he
calls the gods to witness, swears by his soul, evokes spectres, sheds tears. M. de
Lamartine is one of the contemporary writers who has financially benefited the most
from his fluency with words. He has been remunerated, in cash and in celebrity, far
beyond what his merits would deserve, and yet he complains about the misery suffered
by writers. Whose fault is it? Is society to be accused of ingratitude just because M. de
Lamartine does not know how to conduct himself any better than he knows how to
reflect?
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I do not ask for anything better than to gratify M. de Lamartine’s wishes to the
full, but for this one still has to know exactly what it is that he is demanding. So let us try
to drag the thoughts of this great assembler of rhymes out into the light of clarity.
What is being demanded is a literary property which would be something
different to the mere possession of the intellectual product or the price of that product; a
property which for the intellectual and moral world would be the same as landed property
is for the industrial and agricultural world. So it is the idea itself – that is, a piece of the
intellectual and moral world, and not just the formula or expression given to this idea –
which is to be appropriated. The comparison between a man who has cleared a field for
tilling and who, with the permission of society, becomes the proprietor of that field, and
the writer who has conceived, brooded, hatched out, and developed an idea, makes this
intention clear to everyone.
But for a start here we have M. Frédéric Passy – one of the most ardent
champions of literary property, an enemy of sophists just as much as he is an enemy of
M. de Lamartine – who maintains – and M. Victor Modeste is also of this opinion, and I
too agree with these two gentlemen – that this manner of legitimizing the dismemberment
of the public domain and its appropriation on the grounds of [intellectual] work is
patently unjust; that it leads to no less a consequence than to bring landed property into
disrepute, and that those who defend such an opinion, whether they realize it or not, are
the greatest opponents of property. I would gladly put my signature to this observation,
and on these initial grounds I conclude that M. de Lamartine’s demand should be
declared ill-founded.
By virtue of what principle is literary property, then, to be conferred if the status
of the producer, worker, elaborator, or accoucheur of an idea – it is M. Frédéric Passy
himself who says it and proves it – cannot be considered a sufficient claim to such
property? Is it to be by virtue of the legislator’s discretion? Bossuet and Montesquieu, as
M. Victor Modeste observes, had already claimed that landed property had no other
foundation than in the law, in the authority of the legislator. But this system has been
abandoned as one that is tainted by partiality and arbitrariness and which gives no answer
to this formidable question: Why did the legislator, when parcelling out the land and
allocating property, not make the parts equal and take suitable measures so that in the
future, irrespective of all population movements and changes, they would also remain
equal? Certainly, the legislator,
Chapter 1 Page 42
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when founding the institution of property, had his good reasons to do so: he took into
account considerations of public law and order. Now, these are considerations which it is
difficult to show understanding for in the view of the inequality of wealth. The principle
of sovereignty, the legislative and juridical power, which is insufficient, at least
according to modern critics, for legitimizing landed property – is it not even less
sufficient for the legitimization of intellectual property? And, moreover, even if it were
true that property rests on the legislative authority, who is it, I ask once again, who dares
to tells to us that the legislator should consider himself as bound by this first constitution
[of landed property] and should give the latter a counterpart by creating a literary
property? Who is it who dares to assert that landed property, the parcelling out of the
earth’s surface, should not have as its necessary condition, corollary, and antithesis
precisely the indivisibility of the intellectual world?
As for the right of first occupancy or of conquest, which has also been used in
attempts to explain the formation of property, there is no need whatsoever to ask if our
economists and jurists would subscribe to it: for they reject it with utter indignation. The
notion of such a right was worthy of the barbarity of feudal times: nowadays you
wouldn’t find anyone who would be willing to support it.
What foundation are we therefore to give to landed property, this alleged
prototype of literary property, if this foundation lies neither in the law, nor in labour, nor
in conquest, nor in the right of first occupancy? This is something we have to find out,
since, according to my gainsayers, once the principle of landed property has been
identified, it will serve as the pretext and prototype for literary property.
M. Frédéric Passy, who was very much aware of the danger for landed property
that is posed by the legislative or governmental theory, by the utilitarian theory and by
that of conquest; who, on all these points, agreed with yours truly, the “sophist”, looked
for it elsewhere. He plunged into the depths of psychology. And what did he find at the
bottom of this well? The truth? Alas! the goddess in her immortal nudity is not made for
the old men who come from the synagogue of Malthus.(*) M. Frédéric Passy has
discovered, through his analysis, that man is an active being, that he is intelligent, has a
will of his own, is free and responsible – in short, that he is a personal being; that as a
result of this activity, this intelligence, this will, this responsibility, this personality, he
tends fatefully towards appropriation, towards setting himself up as the lord of everything
that surrounds him, and that such is the origin of property… – Poor fellow, who, after
________
*) In 1868, three years after Proudhon’s death, Passy would in fact publish a book
entitled Le principe de la population: Malthus et sa doctrine!
Chapter 1 Page 43
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overheating his brains in digging out this psychological hole of his, failed to realize that
all he was doing was simply repeating in other terms what he himself had just refuted in
the theories of those who justified appropriation by labour, by government decree, or by
conquest.
Certainly, man is an active, intelligent, and responsible being, with a will of his
own, and tending to set himself up for a master – and, this pride notwithstanding, he is a
being worthy of consideration and respect. His person, insofar as he does not take the
liberty of committing any acts of aggression against his fellow-men, is inviolable; his
product sacred. But what can you conclude from all this? Well, simply that, in order to
deploy his being and manifest his personality, man has need of a material on which to act,
of instruments, education, credit, exchange, and initiative. Now, this is all satisfied fully
by [the concept of] possession, such as it is defined and interpreted by jurisprudence,
such as it is hallowed by the Code Civil, such as it has been understood by all peoples
from time immemorial, and such as is still practiced nowadays by the mass of the Slav
peoples. This possession, which saves man from communism – this is something that
political economy can be satisfied with. I have demonstrated that the theories of
reproduction, of labour, exchange, of price, value, salary, savings, credit, and interest, do
not demand, do not presuppose or imply anything else beyond that. The relations of city
[i.e. society] and family, and the principle of heredity itself – all these do not ask for
anything more. Undoubtedly, political economy does not reject property, God forbid that
I should say that! But property is not the conclusion it arrives at; it could do without it; it
hasn’t created it in any way, but found it already in existence; it has accepted it, not
invoked it as such – the proof being that in the realm of economics things would still
happen in the same way if property did not exist, and that it is our century’s most
pressing question to ascertain on which foundation property rests, for what purpose it was
instituted, and which is its function in the system of mankind.
So, once again, why this investiture, or this usurpation, or this creation of our
spontaneity, if you wish? For it is evident that regardless of whether one traces property
back to the law, or whether one causes it to derive from labour or conquest, or whether,
finally, one is content to see in it an effect of individualism, of man’s tendencies towards
freedom and the fulfilment of his ambitions, none of these interpretations can justify, can
historically and economically legitimize property. Property exists, it asserts itself; it will,
I hope, always remain invincible: but it is no less true that
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we do not know its nature; that property, like the federation to which it is connected, is
for us still no more than an empirical fact; that at the moment of writing all that we can
say about it with certainty is that, just as I argued more than twenty-two years ago, we
have failed to appreciate the profoundness underlying its establishment, that the
philosophy to explain it has yet to be created, and that our lucubrations, instead of
clarifying it, merely serve to throw it into disrepute. To which I would now add, with
regard to artistic and literary property, which certain incompetent advocates would like to
liken to property, that far from requiring, as a kind of counterfort, the creation of an
intellectual property, it has as its antithetical condition and guarantee precisely the
indivisibility of the world of the mind.
Here my opponents – jurists, economists, artists, and men of letters – persuaded as
they are by ignorance as much as by greed, will not fail to cry out in unison that I am
attacking property. According to these gentlemen, attacking property is when you prove
that from the sole fact of their production they do not hold such a right to [what they have
produced], and that the extension which they would venture to give to the concept of
property would be its own condemnation. This is a good way for them to enlist for their
cause the [holders of] landed property, who are always in a state of alarm anyway, and
who in fact have no greater enemies than these lamentable counterfeiters [of property].
I cannot think of a greater cause of shame for our age than this fear of an
unprejudiced examination, which betrays not so much respect for established institutions
as the hypocrisy of people’s consciences. What! I am attacking property, the right of
proprietors, simply because I am maintaining, contrary to the economists, who are
content to accept it as an article of faith, that it constitutes the greatest problem of the
social sciences – a problem which is all the more difficult that it seems to rest uniquely
on a principle which is condemned by the Gospel, namely on egoism! In that case one
would likewise be attacking God if one were to say that the demonstration of God’s
existence proposed by Clarke (*) does not prove this existence – something with which
the mystics themselves also agree – it would, then, be pyrrhonian (**) and nihilistic to
maintain that all arguments which one uses to try to prove the reality of matter and
movement beg the question and imply a contradiction; it would likewise be a blasphemy
against all morality and justice to make the observation that so far the only support these
have had lies in religion and faith, and that their rational basis has yet to be found! But
________
*) By the English philosopher Samuel Clarke in his Discourse concerning the Being and
Attributes of God, the Obligations of Natural Religion, and the Truth and Certainty of the
Christian Revelation, published in 1705.
**) Pyrrho (c.365-270 B.C.) was the founder of the philosophical tradition of
Scepticism.
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then all science would become impossible, and so would all philosophy and all honest
politics.
Pascal, in his Pensées, starts off by humbling man, intending to exalt and glorify
him afterwards. Do people, then, argue that Pascal, in developing the theory of original
sin, is the enemy of God and the human race? It is effectively in this fashion that we
should treat property: we are forced to reject it if we just take into account the principle
and the grounds as they are handed down to us at school, but if we ascribe to it a reason
of a higher kind, then we can defend it by virtue of this reason, which will be revealed to
us sooner or later. And what better service can we do it, whilst waiting for the moment
when we will be allowed to contemplate it in its essence and in its finality than to extract
it from the banalities which compromise it? (1)
________
(1) The question of property, perhaps the greatest question of the nineteenth century,
given that it concerns equally law, politics, political economy, morality, and even
aesthetics, has for the last twenty-five years been a veritable stumbling-block for the
public and for the majority of writers: I would add that I myself haven’t been any more
successful than my colleagues, were it not for the fact that I at least have this advantage
over others – namely, that I can see the complication clearly and have a presentiment of
its solution. Some have imagined that all that was needed was a bit of simple common
sense in order to resolve a problem which embraces the whole of society, which for four
thousand years has resisted the analysis of philosophers, and whose principle has been
formally condemned by the wisest of men. Many persons have thrown themselves blindly
into this arena, each one claiming the honour of justifying the attacked institution and of
deserving the honours and rewards which the peoples of the world, anxious as they are in
their beliefs, never fail to award to their saviours. In the academies, from the public
tribunes, in schools and in the press, everywhere people have prided themselves on
having refuted the “sophist” – and what has been the result of all these fine refutations?
That the truth has slipped away; that doubts have spread to a more distressing extent than
ever before; and that property has entered a path of transformation which gives one
serious misgivings about whether it will last any further. It is not the fault of the
Authorities: they have multiplied their repression, their safeguards, asserting at the same
time their lofty dominion, without considering that property must subsist by itself, unless
it is to become a mere privilege and perish, and that if it is not sovereign, it is nothing at
all. It is thus that, imagining that this was the way to stem the danger, people have made
it even more imminent; it is thus that truth and right, ever since they have been propped
up by bayonets, are fading away.
As it is of the utmost importance, even for the establishment of right and truth,
that we should have a clear opinion about the state of this matter, with your permission I
shall summarize here, in a few lines, the course of my investigations, both into landed
property and literary property.
The jurists of the past said promptly that property had its principle
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[45 ECONOMIC DEMONSTRATION]
I hope the reader will forgive my vehemence, and that, hand on heart, he will tell
me whether, far from experiencing any alarm with regard to property, he does not rather
feel himself to be enlightened and reassured
________
in the right of the first occupant, and rejected every other hypothesis. The right of the first
occupant has as its corollary the act of conquest, by which a new occupant takes the place
of the original occupant, who is either defeated in battle or is incapable of defending
himself, and thus inherits his right. At a time when the right of force was not disputed by
anyone – at least in its normal application – when conquest was therefore, as the
conclusion of every regular battle, regarded as just, this origin of property could certainly
satisfy people’s minds; it was sacred. Other jurists came afterwards, men like
Montesquieu and Bossuet, who maintained that property derived its existence from the
law and therefore rejected the older theory. In our times the opinion of Bossuet and
Montesquieu, too, has appeared to be insufficient, and two new doctrines have emerged:
one which traces the right of property to the labour invested – that is the doctrine upheld
by M. Thiers in his book De la propriété [1848] – and another, which, going even further
back and considering even M. Thiers’s idea to be marred, imagines that it has grasped the
true reason of property in the human personality, and regards it as a manifestation of the
self, a prolongation of individual liberty. This is the opinion which has been adopted by
Messrs Cousin and F. Passy. I have no need to add that this opinion has seemed to the
adherents of Bossuet and Montesquieu and to those of M. Thiers alike as vain as it is
pretentious. Indeed, one can rightly ask: if it is man’s will, liberty, personality, his self
which make property, why isn’t everyone a proprietor then?...
The question was already there when I in my turn approached it. Carrying out an
analysis and a breakdown of all these theories, I demonstrated that they were all equally
false; that they could each be refuted by the same arguments, and that, moreover, each
one entailed a contradiction. I made it clear that the fact of occupation, for example, is
not a principle or a reason, and that it does not by itself create a right; – that if the right of
property does not result from this first fact, the subsequent fact of conquest or
dispossession of the weaker man by the stronger does not add anything to it; – that whilst
the legislator’s authority is certainly something that warrants great respect, and there can
be no question of seeking to disobey the law, what is required here is to justify the law
itself and to provide grounds for it; – that labour is indeed something sacred, but that the
right to which it gives rise does not go beyond that of a simple remuneration in
accordance with the economic formula: service in exchange for service, product for
product, value for value, but that it is by no means capable of conferring on a farmer, say,
the status of a proprietor; that if it were otherwise one would have to declare all farmers
to be proprietors and regard those who collect rents from estates which they do not attend
to themselves as parasites; – that the human self in its turn is certainly, like land, the
stuff of which property is made up, for the latter evidently presupposes two concepts: a
thing that has been appropriated and a subject who appropriates it; but that justificatory
reasons still have to be given, as do the conditions for such
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[46 LITERARY ENTAILMENTS]
by my arguments. Of course – I would say in my turn to M. Frédéric Passy – man, by
virtue of his personality, does tend towards appropriation, towards acquiring mastery
[domaine] over things; but this is just a tendency, and it is important to find out,
________
an appropriation, since without that any individual without possessions could intervene,
and, by virtue of the sovereignty of his own self, tell everyone else: “I too am a
proprietor”.
The view of Messrs Cousin and F. Passy, which ascribes to the self the ability to
create property, even has an unfavourable prejudice speaking against it. In the eyes of
every moralist, the self is odious; the Gospel condemns its full scope under the name of
concupiscence and regards it as the origin of sin. Everyone knows that the institution of
property was rejected in the ancient Church; that later, when morals had become laxer, it
seemed necessary to make this concession to the age, but that the pure doctrine was
preserved in the monasteries; and, finally, that when the Roman Empire in the West fell,
property was also caught up in this collapse, and that in its place and on top of its ruins,
under the dual influence of the Church and Germanic customs, that feudal regime was
introduced which was to be abolished altogether in 1789.
Now it is time to draw our conclusions. The Revolution put an end to the feudal
system and established, save for some slight modifications, [the principle of] ancient
Roman property in its place. But even though it did re-establish the latter, it failed to
provide a philosophy for it; we have the purview of the law, but we do not know what the
grounds for it are. Now, since in the period in which the Revolution has caused us to
enter institutions cannot exist other than on the basis of rationality, we can already see
how property, unexplained as ever, is shaking on its foundations, just as in the times of
Christ and the Roman emperors. Is it being threatened by a new catastrophe, and are we
going to pronounce ourselves, together with the primitive and communist Church, against
property? This is the question which is posed today by all those who, having understood
the criticism that has been made of this institution, observe how things are currently
developing and already see there all the symptoms of an imminent degradation of
property. Furthermore, the negation of property is in our times also upheld by a swarm of
people who are careful not to say it aloud, and of which some are in no doubt as to what
they are aiming at. I will just refer here to the blind supporters of centralization, to the
world of high finance, to the speculations of Saint-Simonism(*), which is the enemy of
the family and of liberty; the Church, which is eager to re-establish its convents and to
reconquer its lands; the absolutist and autocratic democracy [of Napoleon III], which
idolizes unity and is enraged by the merest shadow of federalism.(**)
My ideas on this matter are quite different. Being above all a man of freedom and individualism,
I do not think that having established, with a vehemence which did not really
deserve so many reproaches, the egoistical basis of property is sufficient reason for me to
forsake this institution. I simply say that there is material there for further investigations.
I am of the view that property, which to this day has been understood very poorly, if at
all, still remains to be organized, and that our civilization hasn’t yet reached the greatest
height of which it is capable. So it is upon full reflection, if not yet with a perfect
understanding of the cause, that instead of deducing, as the Church has in its moral
theology, as all the founders of religious orders and all communist sects have done, the
need for a suppression
___________
*) The phrase “le saint-simonisme agioteur” is perhaps an intentional irony on
Proudhon’s part, since in the 1790s Saint-Simon, the forerunner of French socialism,
made a small fortune by speculating in lands confiscated during the Revolution!
**) The federative principle, both in an economic and a political sense, was one of the
key tenets of Proudhon’s thought.
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[47 ECONOMIC DEMONSTRATION]
first of all, if this tendency derives from a just principle, as social justice would have it, or
from a principle that is inherently corrupt, as has been argued, from Minos onwards, by
Lycurgus, Pythagoras, and
________
of property, I have protested, ever since the publication of my first treatise [Qu'est-ce que
la propriété ?], against all forms of communism and feudalism; that I have vigorously
defended, in all my subsequent works, the principles of industrial liberty, of the family, of
heredity, of federation, and that I repeat at this very moment, with redoubled energy, in
the same voice and from the same pen, that I am against all kinds of privilege and
monopoly; that property, a concept which is essentially paradoxical, is a problem which it
is the Revolution’s task to resolve, an institution which Antiquity only half understood
and whose greatness is mysteriously revealed to us in its very abuse, jus utendi et jus
abutendi.(*) Today’s critics, with their customary impertinence, have not failed to see in
this restraint of mine a sign that I am contradicting myself and being inconsistent; they
accuse my conclusions of cowardice after having condemned the boldness of my
premises: what has not been written in this respect about my supposed predilection for
paradoxes and for making a fuss?! The [open] letters which are sent abroad from Paris
are still full of these accusations… Fortunately, the relevant documents for this case are
here for everyone to see, and daily experience confirms just how justified my deductions
are. As property gives way under the attacks of industrial feudalism and the absolutism of
power, society senses that it is dissolving; but at the same time it does not know what to
do, in order to hold on to and consolidate property. One might almost say – in view of the
relentlessness with which expropriations are carried out, in view of the capitalization
fever, the insolence of these agglomerations, the aggravation of taxes and mortgages –
that we are full of hate for property and that we have had enough of it!...
Amidst this controversy there emerges all of a sudden the hypothesis of a literary
property, that is, of a parcelling out of the intellectual world, similar to that which has
been done with the land. With regard to this I can only say, taking up my earlier
criticisms, 1º) that the example of landed property cannot be invoked as an analogy or
precedent, given that its institution is the result of considerations of an elevated order,
which are still insufficiently clarified but which everything tells us are inapplicable to the
things of the mind; 2º) that, whatever the hyper-economic reasons might be which have
determined the institution of landed property and which keep bringing it back, these
reasons could not be used to justify the creation of an intellectual property, since just as
much as the inert and passive earth seems to offer itself up for human domination, so the
world of the mind recoils from appropriation – this I will demonstrate in the second part
of this treatise; 3º) that this opposition between the physical world and the intellectual
world is such, from the point of view of property, that it would be sufficient to decree
intellectual property, as we hear being demanded now, for the lapse of landed property to
be decreed at the same time – this will be shown in the third part.
These are the essential features of my thoughts on this whole subject – thoughts
which are eminently conservative and of such a kind as surely to win people’s sympathy,
if
__________
*) These were two important concepts in Roman law: the owner of private property had
both jus utendi et jus abutendi, that is, the right to use or to destroy his property without
the State being able to prevent him. Cf. L. J. Strahilevitz, ‘The Right to Destroy’, Yale
Law Journal 114 (2005).
Chapter 1 Page 49
[48 LITERARY ENTAILMENTS]
Plato, and all communists; and, secondly, what would be the conditions, the limits, the
order and final stage of this evolution? Is it at the stage of usage and usufruct that it is
meant to stop, or at the stage of possession, or at a long lease, or at the stage of property
even? For saying property necessarily means saying sovereignty at the same time. This
sovereignty of the individual in the face of the collective being, is it based on right, is it
social? Everyone can’t be a proprietor at the same time: who will be the chosen ones?
What compensation, what guarantee will be given to the rest?... Observe how
considerations taken from political economy are of no use here: one cannot invoke either
the interests of production or those of agriculture, since in all countries agricultural
production is most frequently performed by tenant-farmers, by share-croppers, and not by
proprietors. Lastly, one may rightly ask for which higher purpose, for which grand goal
has this lofty thought, which until now had remained obscured, been given to mankind? It
was an excess of property which led to Italy’s downfall, say those who have written on
the decadence of Rome: “Latifundia perdidere Italiam” (*); and yet here are people
assuring us that property entails even the right to abuse. How are all these things to be
reconciled? Can property be limited and still remain property? What will be its measure?
By which law will it be governed?... This is what
________
justice were something that one could find in our age, if it were not a fixed prejudice
amongst people to blame me for the scandal which certain ignorant phrasemongers have
kicked up about my critical analysis and about my formulations. But, then, there are
people – both in the party of the Reds and that of the Whites [i.e. Royalists], both
amongst the literary and artistic Bohemia and amongst the clergy – for whom any sort of
discussion is sacrilege. Property is for them one of those fetishes which are placed
beyond the reach of free examination and to which one is not allowed to apply the
methodical doubting of Descartes. “It is better to perish than to be instructed”, is the
motto of these Tartuffes. What cries would they not start uttering, if I were to announce
to them that, after having discussed property for some twenty-five years, I think that I
have finally discovered the theory for it, and that I hope to divulge it constantly!.. For
these people, speaking about property and its origins is the same as walking with a torch
in hand into a powder magazine: nay, what am I saying! It means to divert the public
away from their charlatanic rigmaroles and to warn people to keep their hands in their
pockets. That rogues who have become rich on speculation, on blackmail, thanks to wine-
glasses and self-promotion, should imagine that the police inspector is coming to get
them when they hear someone talk about property! I have yet to meet an honest
proprietor who harboured any of these fears! But these shady zealots may rest assured:
my criticisms are not denunciations. Their right comes under the Code Pénal, it does not
depend on any scientific reasoning. It is possible that one day they will have to account
for themselves in front of a court of summary jurisdiction; what is certain is that they
have no bone to pick with the right of property.
________
*) Pliny’s famous phrase about how the institution of latifundia (large estates), which
had to be worked by slave labour, led to the degeneration of the Roman spirit.
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[49 ECONOMIC DEMONSTRATION]
M. Frédéric Passy should have explained to us, but instead he replied with the most banal
of sophisms – that is an epithet which I gladly return to him – the sophism which consists
of replying to a question with another question.
Thus, these people who are pleading for the creation of a literary property after
the manner of landed property; who ostentatiously write on the top of their brochures
which are made by teams of four:(*) “We are economists, we are jurists, we are
philosophers!”, insinuating thereby that their opponents are simply just sophists; these
scholastic pedants, whose nonentity is a disgrace to their audience, they don’t even know
themselves what landed property, which they are now trying to persuade us to
counterfeit, actually is; they don’t know what its social function is; they are unable to
deduce its motives and causes. There are as many different opinions amongst them as
there are heads: their lack of logic exceeds even their presumptuousness; and if any
criticism sets itself the task of exposing the emptiness of their doctrines, all their response
consists of crying blasphemy! This detestable clique, as impure as it is absurd, which
posterity will blame for our contemporary mess and for the stultification of France!
I repeat again: this is not the right place to investigate by what considerations of a
social, political, or economic nature our civilization was led to this lofty institution of
property, which no philosophy has been able to explain yet and which nothing would be
able to destroy. This investigation is of no use for the question we are dealing with. I
assert, on the strength of the axiom pro nihilo nihil [‘nothing for nothing’] that it is not
for nothing that property was established, and that it has its reasons for existing in society
and history. Let the advocates of literary property, furious at not having been able to
demonstrate the legitimacy of the monopoly which they are demanding, let them now
attack landed property – let them do so if they dare: perhaps then I will take it upon
myself to defend the latter, thus showing one more time to these rhetors what it means to
be a sophist. For the time being it is sufficient for me to take cognizance of the existence
of property; to declare that I do not wish to encroach on it in any way, that, on the
contrary, in this discussion I am intending to avail myself of it, contenting myself with
maintaining that the existence of a landed property could never in any way serve to
legitimize the creation of an intellectual property; that neither the public domain, nor the
liberty of the individual, nor concern for
_________
*) Proudhon by this phrase (faites à quatre) is probably referring to how De la propriété
intellectuelle was the work of ‘a clique of four’: Modeste, Passy, Paillotet, and their
publisher Guillaumin) Explanatory note by Frédéric Rideau.
Chapter 1 Page 51
[50 LITERARY ENTAILMENTS]
public welfare, nor the right of the producers, require such a guarantee; that, on the
contrary, all property and all rights would be in danger if one day the appropriation of the
mind happened to be instituted by sovereign decree.
There is no harm in repeating that the agriculturist’s right to the fruits he has
obtained through his work is one thing, and that property in the land, which society may
in addition have granted to him, is another. Possession of the product is entirely de jure,
but property in a piece of lands [fonds] is a bonus gift. I do not at all blame society for
having made use of this munificence; my impression is that it was guided by
considerations whose loftiness escapes us, and that if property has remained in a state of
imperfection, if the injustice with which we have sullied it ever since Roman times –
which taints were briefly mopped away by revolutionary right – seems to be threatening I
again; if this glorification of man and of the citizen has lost some of its influence and
prestige, the fault might very well lie in our own baseness and ignorance. I therefore
accept, in full hope and seeing in it a basis on which to build in the future, the institution
of property, simply reserving for myself the right to look once again for its reasons. Does
it, then, follow from this that right now we should ask the public authorities, so little
enlightened that they still are, to introduce a constitution which would make the
intellectual and moral domain in the likeness of the earthly domain? No, a thousand times
no! People’s temperaments have changed, the law which governs the mind is by no
means the same as that which governs matter. One might as well try to put birds of
paradise on the same diet as hyenas and jackals!
Besides, the supporters of literary property themselves don’t actually see it that
way. After having exhausted all the arguments in favour of their thesis, by one of those
contradictions which are so familiar to them, they reject the only condition under which
their chimera might become reality.
Let us remind ourselves that here it is not simply a question of securing for the
man of letters a fair remuneration for his product, but, rather, of creating in his favour, on
the basis of this product, a property analogous to that which is granted to the colonus, (*)
in supererogation to his harvest. So it is the common fund of production as such which
would have to be appropriated. Let us take an example.
Here we have Virgil, who, in a poem to which he dedicated eleven years of work,
sung the origins and ancient times of the Roman people. His Aeneid is in this vein, and, in
spite of its faults, it is a
_______
(*) Proudhon deliberately uses the French word colon ‘farmer, smallholder’, which is
derived from the Latin designation for a tenant farmer in the late Roman Empire, as will
become clear when he comes to talk about Virgil. The English word ‘colonist’ does not
quite convey the sense required here.
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masterpiece such as you would be hard put to find three more like it in the history of
mankind. Of course, the work of this great poet is certainly worth that which is carried
out by the colonus, to whom the sovereign has graciously granted as a gift the field
cleared by him. Virgil tilled the field of Roman traditions; he made flowers and fruits
spring forth from a soil where until then there had only been brambles and nettles.
Augustus rewarded him for his efforts by heaping on him tokens of his generosity. But in
all this Augustus was doing no more than to simply pay a worker for his produce: so it is
left to us to create a property in the latter. Well, if we [or our ancestors] had done that,
here is what we would have: after Virgil’s death, after the Aeneid was saved from the
flames [which engulfed Rome under Nero], his heirs or assignees would have the
exclusive right to exploit this domain of tradition, that is to sing the feats of Evander,
Turnus, and Lavinia, to celebrate the heroes and glories of Rome. All counterfeiters and
plagiarists are strictly forbidden to write of Dido’s loves, to put Plato’s doctrine or
Numa’s religion into Latin verse, to reproduce the same fictions. Lucan would not be able
to publish the Pharsalia, as this would be an encroachment on the Virgilian domain, all
the more reprehensible given that Lucan, an enemy of the Emperor [Nero], speaks of
Pompey, of Cato, of Caesar – figures of whom a loyal subject would do well to avoid
speaking. Dante, too, would have to show restraint. Yes, he would be allowed to put
Christian theology into cantos and send the Guelfs, his enemies, to the devil. But his
descent to the underworld – which he even had the brazenness to undertake in the
company of Virgil – that is literary theft!
It is in this way that intellectual property could be established, in accordance with
analogies drawn from landed property and the tendencies of the feudal system. Under
feudalism everything was established, or tended to be established, as a privilege: the
Church alone had the right to define what was in keeping with true faith and to teach
religion; the University alone could teach theology, philosophy, law, and medicine: it had
the privilege of the four faculties, which it still has. The military profession was reserved
for the nobility; the magistracy had, little by little, become hereditary; the various
professional guilds were forbidden to encroach on one another and to infringe on the law
of speciality. When Louis XIV appointed Racine and Boileau as his historiographers,
perhaps he was not at all thinking of reserving, for them and their heirs, the privilege of
narrating his great exploits; but he could have done so according to the principles of our
age, which are those of M. de Lamartine. Is it not true that if a young poet decided to
publish a book of poetry entitled Méditations poétiques, M. de Lamartine would regard
him,
Chapter 1 Page 53
[52 LITERARY ENTAILMENTS]
in his heart of hearts, as a thief of his personal style [voleur d’enseigne] – nay, worse than
that, as a vile counterfeiter? Messrs Frédéric Passy, Victor Modeste, and P. Paillottet
write the following significant words in their preface of their book: “We are economists”.
Is this not the same as if they were to cry to the public: “Watch out! Those who attack
literary property are incompetent – they are not economists, furnished with patents by the
Académie and published by Guillaumin. They are not entitled to speak!”
Well, these renowned economists, they recoil before the consequences of their
own principle, even if they are not very sure about it anyway, even if they themselves do
not know what they actually want.
«Ideas, says M. Laboulaye père, belong to those common things which it is as
impossible to appropriate as it is to appropriate the water of the oceans or the air in the
sky. I can make use of ideas which are in circulation, but I cannot turn them into my
property. The man who extracts salt from the sea, the miller who uses the air to make the
sails of his windmill rotate – they have managed to create for themselves a source of
private wealth [une richesse particulière]: but does this prevent anyone else from making
use of these inexhaustible resources, and just because the air belongs to everyone, does
everyone have the right to take possession of my windmill?»
This last phrase is a real somersault of logic! A windmill is a real estate property,
as a result of the appropriation of the land on which it was built; without that it would be
purely and simply a tool, a share of the miller’s capital. So the example cited by the jurist
and economist M. Laboulaye does not prove anything in support of intellectual property;
it proves the opposite. The same writer then adds:
«It is the same with a book, only with this difference: that a literary work can
never impoverish the common fund. Rather, it always enriches it. Bossuet has written a
Histoire universelle; Montesquie has published De l’esprit des lois – does that prevent
anyone else from writing another Universal History, from conceiving a new Spirit of the
Laws? What is there less of in the circulation of ideas [as a result of Bossuet’s and
Montesquieu’s works]?... Racine published Phaedra: this did not stop Pradon from using
the same subject, and yet no one accused him of counterfeit. Go ahead and write a history
of Napoleon, and make use of the material already researched by M. Thiers; but do not
reprint the text of his book, for that would be a material offence as visible as the theft of
the fruits which are growing on my field.»
When quoting an economist, one really ought to provide a line-by-line
commentary for all the sentences, so full of confusion and ambiguities are they! A book
cannot be compared to a windmill, since the former is a product which at the very most is
capable, after having been carried from the shop of
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the bookseller into the scholar’s library, of being regarded as a share of capital; whereas a
windmill, erected on a piece of land, forms part of the appropriated estate – in other
words, it forms part of a property. – The literary work enriches the public domain [le
domaine commun], that is true; however, it does so not in contrast to other products, but
just like all the other products do. – Someone who steals the text of an author is guilty, no
doubt about that; but it is not the same kind of offence as that committed by someone
who steals the fruits which had been growing in the field of a proprietor, given that the
author’s text is the product of his labour, whereas the fruits which grown spontaneously
in a field are a bonus [bénéfice] acquired by the proprietor when he comes into ownership
of the land. Anyway, I will skip over these trifles, in order to concentrate on the principal
idea.
So according to M. Laboulaye, the intellectual domain, in contrast to the landed
domain, cannot be appropriated. Regardless of whether someone causes a mill to turn by
air, water, or steam, his mill will always belong to him; as for the idea itself of getting a
pair of millstones to turn not by the agency of human arms, but by the power supplied by
wind, water, or steam, this is an idea which cannot in itself be converted into property. It
is true that in this case we might be dealing with something which would qualify for an
inventor’s patent; but then we would again be coming back to the general situation of a
producer, who is remunerated for his work or discovery by a privilege of publication or
of temporary exploitation. With this proviso, the reasoning of M. Laboulaye remains
unassailable: if an invention has been acknowledged, it can give rise to a right of priority;
but it cannot serve to justify an institution of PROPERTY.
Would these gentlemen, the economists, jurists, and philosophers, be so kind then
to tell us what it is they are demanding and what it is that they are complaining about?
For, truly, it is impossible to understand them, and their claim has yet to be formulated in
adequate terms. If you listen to them, it seems you wouldn’t be able to find more resolute
opponents of monopolies: well, why don’t they stay true to their principles and stop
troubling the world with their silly harangues?!
Certainly, the earth has been parcelled out and appropriated, and even though the
theory of property still remains to be worked out, even though the problem has yet to be
resolved, landed property is nonetheless a fact of immense importance, which has taken
its place in the policy of nations and in individual relations – it is a fact which reason
rightly regards as something that has been established with higher designs in mind and
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for some great purpose, even if these designs and this purpose still elude us.
Is it really necessary at this moment, when we are just taking our first steps in the
science of social organization, to rashly try to lay our hands on this organism whose
secret is still unknown to us, to mix up all our ideas, to move heaven and earth, and, for
the satisfaction of a few pedants, to leave the world in utter confusion and disorder? What
are the men of letters complaining about? Is their situation more unfortunate than that of
other producers? Landed property makes them jealous: well, then they should blame the
nature of things, for it is the latter which is alone responsible for this and which it would
be a good idea to try to understand first before condemning it. Or, even better, they
should just enjoy, together with everyone else, the progress that has been made so far,
whilst waiting for more light to be shed on the matter at some point in the future. After
the feudal regime was abolished in our country, the land, even though it cannot at present
be the property of all, is accessible to everyone. The servant, the factory worker, the
share-cropper, the woman selling salad vegetables, who goes up hill and down dale to
gather dandelions and corn salad, can all, if they save up their meagre wages, eventually
accumulate some savings, a capital sum, which money they can then convert into nice
landed property, allowing them to say in their turn: “I too am a proprietor!” Why should
the man of letters not be able to do the same? Change of ownership [mutation] is after all
a constant feature of property. But, please, let us not hear any more demands to transform
the remuneration which is due to writers into a perpetual usury. That would mean the
confusion of all principles and the subversion of the social order.
§ 10. – Summary of the discussion: that the government does not have the right or the
power to create a literary property.
Amongst those who have only offered a light opposition to the law that is being
drafted, some, caught up in this false analogy with landed property, have agreed that the
government has the power to create a literary property, just as it created a mineral
property and other types of property. This is an ill-considered concession which reflects
the chaos in which people’s minds are submerged.
Of course, the government has the power do what it likes, if by power one means
the ability to act no matter what, if we disregard the laws of nature and society. When a
government chooses to say: “I want to”, who can stop it, especially if public opinion
supports it?
Chapter 1 Page 56
[55 ECONOMIC DEMONSTRATION]
However, it is something else if what we mean is that the government has the
power to do what it likes, but as long as it stays within the bounds of natural and
economic laws and the rules of justice.
Therefore, the government cannot cause what is simply a product, by virtue of its
nature and purpose, to be regarded as ESTATE [fonds] or property.
It cannot cause a contract of exchange to become a lease for perpetual rent, even
though the service or the goods which are exchanged can certainly be remunerated and
paid either by an annual wage or by a series of annuities.
It cannot cause the price of a product to be treated like a rent of farm [fermage].
Without violating the law of human relations and overthrowing all our concepts, it
cannot cause a writer, who casts his thoughts into circulation, to be regarded no longer as
a simple producer/ exchanger, but as an unredeemable sleeping partner [commanditaire
irremboursable], who, by virtue of this fact, would be entitled to receive hereditary
royalties [redevance] to the end of all time. The government does not have any more
power to do any of the aforesaid things as it has the power to parcel up the atmosphere,
start building on the oceans, produce without labour, and give government stocks to
everyone. If it did try to do these things, it would be to its own detriment; and general
ridicule and financial ruin would soon bring it round to the truth.
Society has been able, out of considerations which science has not yet clarified
sufficiently but which are not contested by anyone, to parcel out the land and to institute
a landed property; it has been able to do this, I must emphasize, even though this
appropriation, by the common consent of all jurists, is an added portion or extra [un
appoint] to the right of the cultivator; even though production and the exchange of wealth
do not strictly require such a concession; even though property does not exist amongst
numerous nations, where it is replaced by a simple right of possession. But for an
intellectual property to be possible, the government would have to be able to grant to the
writer, by way of a domain, the privilege to ideas which are general and to subjects of
investigation which make up the common fund of human intelligence. Now, it is
precisely this which it cannot do; it is this which common sense finds so repulsive; and
which no one is actually claiming anyway. So how, given that it has been forced to
abandon that analogy, would it be able to embellish with the name of property a simple
privilege of reproduction and sale, and this just for the sole purpose of creating a sinecure
for the writer’s heirs?
Chapter 1 Page 57
[56 LITERARY ENTAILMENTS]
Boileau said in his epistle on the nobility:
But the descendant of Alfana and Bajardo,(*)
If it is no more than a nag, then it is simply sold second-hand.
Can the government cause the sons of men of genius to be geniuses like their
fathers? No. Well, in that case it should leave the descendants of genius to fend for
themselves: the fathers have been paid, nothing is due to their heirs.
_____
(*) Alfana and Bajardo are the names of two legendary horses in Ariosto’s Orlando
Furioso.
Translation by: Luis Sundkvist (pp.10-57)
Source: Bibliothèque universitaire de Poitiers (SCD)
Citation:
Proudhon: 'Les Majorats littéraires', Paris (1868), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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49 translated pages
Chapter 1 Page 1
volume XVI
_____
LES
MAJORATS
LITTÉRAIRES
[LITERARY ENTAILMENTS]
Examination of a bill
whose purpose it is to create, for the benefit of authors, inventors, and artists
a perpetual monopoly
_____
FEDERATION AND UNITY IN ITALY
_____
NEW OBSERVATIONS ON ITALIAN UNITY
_____
THE SWORN DEMOCRATS
AND THE REFRACTORIES
by
P.-J. PROUDHON
_____
PARIS
LIBRAIRIE INTERNATIONALE
15, Boulevard Montmartre
_____
A. LACROIX, VERBOECKHOVEN & Co., PUBLISHERS
at Brussels, Leipzig, and Livorno
_____
1868
All rights of translation and reproduction reserved
Chapter 1 Page 10
ECONOMIC DEMONSTRATION
_____
§ 1. – Formulation of the question.
In 1844, Prince Louis-Napoléon, currently His Majesty Napoléon III, let the
following words fall from his quill in response to M. [Jean-Baptiste] ]Jobard, the author
of Monautopole – words which the supporters of literary property continue to invoke to
this day:
«The work of the intellect [l’oeuvre intellectuelle] is a property like a plot of land, like a
house: it ought to enjoy the same rights and should not be alienated except for reasons of
public utility»
Since time immemorial the master’s word has been regarded as an irrefutable
argument in matters of doctrine. The master had said it, Magister dixit, and there was
nothing more to be said. The French school of logic, essentially authoritarian and
monolithic as it is, is still at that stage. The King has said it, the Emperor has said it! Such
a verdict simply cannot be contested. What has been thought out in Paris must apply to
all eighty-nine départements.
Well, then! the Emperor was wrong. The work of the intellect is not at all a
property like a plot of land or a house, and it does not give rise to similar rights. Since I
do not belong to those people who expect to be taken for their word, I insist on providing
the proof of this.
Of course, I am not going to condemn Napoléon III for the fact that in 1844, when
he was already being assailed by the makers of utopias and the inventors of panaceas, he
let himself be taken by surprise by that scoffer of Jobard, whom I knew well and who
believed in intellectual property just as he did in spiritualism – that is, like a true Norman,
without
Chapter 1 Page 11
believing in it too much. I shall merely take the liberty of reminding His Imperial
Majesty, in allusion to a phrase once said by Louis XII (*), that the Emperor of the
French cannot answer for the lapsus calami [slips of the pen] of Prince Louis. And,
having said this, I shall willingly praise his august person for having put, in the words I
have just cited, his finger on the crux of the matter at one stroke.
Indeed, the question we have to deal with is not whether the man of letters, the
inventor or the artist is entitled to remuneration for his work: who would dream of
refusing a piece of bread to a poet, of treating him worse than a share tenant? Once and
for all this odious question should be banished from discussion altogether, since it serves
as the text of the most ridiculous pronouncements. What we have to determine is the
nature of the writer’s right; in which way the remuneration of his work will be achieved;
whether and how this work could give rise to a property that is analogous to landed
property, as the backers of this monopoly claim and as Prince Louis-Napoléon believed
in 1844; or whether it is not rather so that the creation of an intellectual property on the
model of landed property rests on a false comparison, on a false analogy?
Reasoning on the lines of a first, rough estimate and according to a shoddy
generalization, the supporters of this monopoly say yes – that it does give rise to such a
property. After a careful examination of their arguments and on the strength of an
analysis of which the reader will be the ultimate judge, I say no.
is a product. – What does one understand by this word: produce ? The character of
human production.
All the writers who are in favour of literary property, when maintaining their
thesis, concur in likening artistic and literary production to agricultural and industrial
production. This is the point of departure of all their argumentations, and it will also be
mine. It goes without saying that such a comparison does not diminish in any way the
dignity which rightly belongs to literature, science, and the arts.
Yes, whatever the fundamental difference that exists between the categories of
beauty, justness, sacredness, truth, and that of USEFULNESS, in spite of the insuperable
boundary that, in all other regards,
________
(*) “Le roi de France ne vengera point les querelles du duc d’Orléans” (“The King of
France will by no means avenge the wrongs suffered by the Duke of Orleans”) was Louis
XII’s reply to those who urged him take revenge for all that he had suffered when he was
simply Duke of Orleans
Chapter 1 Page 12
separates them, insofar as the man of letters, science or art does not produce his works
other than by the sweat of his brow, and that for this purpose he expends energy, time,
money, and provisions – from the inferior point of view of political economy, in a word,
he is what the science of wealth designates a producer. His work is a product, which,
once introduced into circulation, opens a credit for a compensation, remuneration, salary,
or payment – at this point I am not discussing the specific term as such.
But, first of all, in political economy what does one understand by this word:
producer ?
The masters of science instruct us all – and the supporters of literary property are
the first to argue this – that man does not have the capability of creating a single atom of
matter; that all his activity consists of appropriating the forces of nature, of channelling
these and modifying their effects, of composing or decomposing substances, of changing
their forms, and, by this steering of the natural forces, by this transformation of
substances, by this separation of elements, of making nature [la création] more useful,
more fertile, more beneficial, more brilliant, more profitable. So that all human
production consists (1º) of an expression of ideas; (2º) a displacement of matter.
Thus, the humblest artisan is nothing more than a producer of movements and
forms: the former he extracts from his vital energy by the interplay of his muscles and
nerves; the latter come to him through the excitation of his brain. The only difference
there is between him and the writer is that the artisan, acting directly on physical matter,
gives it an impulse, imprints and, so to speak, incorporates into it his idea, whereas the
philosopher, the orator, the poet does not produce, if I may be so bold as to put it this
way, beyond his own being, and his production, spoken or written, is restricted to the
word. I for my part made this observation long ago, and Messrs Frédéric Passy and
Victor Modeste, who profess the same point of view, could certainly have quoted me – if
I were the sort of writer whom one quotes, if it didn’t happen to be more profitable to
treat me like a sophist. But do they know where this comparison, which seems to be
universally accepted by all modern economists, will lead them? It is just that they do not
suspect it.
So here is what is agreed: the writer, the man of genius, is a producer, no more, no
less than his grocer or his baker;
Chapter 1 Page 13
his work is a product, a portion of wealth. In the past economists used to distinguish
between material and immaterial production, just as Descartes distinguished between
matter and spirit. This distinction reveals itself to be superfluous: firstly, because there is
no production of matter, and, as we have already said, it is all a question of ideas and
displacements; and, secondly, because, in the strict sense of the term, we do not produce
our ideas any more than we produce physical substances. Man does not create his ideas –
he receives them. He does not at all make truth – he discovers it. He invents neither
beauty, nor justice – they reveal themselves to his soul spontaneously, like the
conceptions of metaphysics, in the perception of the phenomena of the world, in the
relations between things. The intelligible estate [fonds] of nature is, in the same way as its
tangible estate, outside of our domain: neither reason, nor the substance of things are
ours. Even that very ideal which we dream about, which we pursue, and which causes us
to commit so many acts of folly – this mirage of our understanding and our heart – we are
not its creators, we are simply those who are able to see it. Seeing as a result of
contemplating; discovering as a result of searching; mixing and modifying matter in
accordance to what we have seen and discovered: that is what political economy calls
producing. And the closer we look at this question, the more we become convinced that
the likeness between literary production and industrial production is exact.
We have talked about the quality of the product: let us now speak of its quantity.
What can be the extent of our creative power, the measure of our production?
To this question one can reply, in general terms, that our production is
proportional to our strengths, to our constitution, to the education which we have
received, to the environment in which we live. But this proportionality, which can
express a significant quantity if one considers it collectively for mankind as a whole,
expresses a very weak where the individual is concerned. Amidst the human collective
and the riches of society, the individual and his work are infinitesimally small. And this
infinitesimal character of the individual product is as true of philosophical and literary
production as it is of industrial production, as we shall shortly see.
In the same way that an agricultural labourer on average ploughs but a quite small
area of ground, cultivates merely a patch of soil –
Chapter 1 Page 14
in short, produces no more than his daily bread – so the worker of pure thought does not
attain the truth other than slowly, after going through a thousand errors; and this truth,
insofar as he can boast of having been the first to discover it and set his seal on it, is but a
spark which shines for one instant and which tomorrow will have been extinguished
before the ever growing sun of universal reason. All individualism disappears rapidly in
the realm of science and art, so that the production which seemed to us to be the most
sheltered from the wounds of time – that of ideas – does not have, subjectively speaking,
any more guarantees than the other kind of production. The work of man, whatever it
may happen to be, is, like him, limited, imperfect, ephemeral, and serves only for a while.
An idea, by passing through the brain where it acquires individual form, ages just like the
word which gives expression to it; the ideal destroys itself as quickly as the image which
represents it; and this creation of genius, as we call it emphatically, which we pronounce
to be sublime, is in reality small, defective, perishable, in need of being renewed
incessantly, like the bread which nourishes us, like the clothes which cover our
nakedness. The masterpieces which have come down to us from extinguished nations and
which we believe to be immortal – what are they? Mere relics, mummies.
Thus, from all perspectives industrial production and literary production seem
identical to us. When carried over into the realm of political economy, the distinction
between matter and spirit serves only to encourage various arrogant pretensions, to
establish certain categories of conditions which are as contrary to political economy as to
nature. This, however, does not mean that people of the mind or spirit [gens d’esprit] by
virtue of their speciality are not more spiritual or spiritualized than men of flesh whom
their profession places in constant contact with matter; but that in its turn does not prove
that artistic and literary production are not a specialized branch [une spécialité] of
industry. I hope to ultimately establish the opposite point of view. And frankly, is the
distance separating the one from the other – again, always from an economic perspective
– as great as is commonly held? A thinker conceives an idea; a practician seizes it and
realizes it with his hands. Whom are we to give the palm of merit? Are we really to
believe that it is sufficient to have read in a geometry treatise the rules of cutting stones
for these
Chapter 1 Page 15
to be cut? No, one also has to apply hammer and chisel, and it is no light task, after an
idea has been conceived by the mind, to make it pass into the tips of one’s fingers, from
where it escapes, as it were, in order to become fixed in matter. He who has his idea in
the hollow of his hand is frequently a man of greater intelligence – at any rate more
complete as a person – than he who carries it in his head, incapable of expressing it other
than through a formula.
that of property.
A thing, or rather its form has been produced: who is it to belong to? To the
producer, who may dispose of it as he pleases, and who shall have the exclusive use of it.
This is yet another principle which I am prepared to endorse to the full. No demonstration
is required for that, Messrs Passy et de Lamartine. Never have I said that work is theft (*)
– on the contrary… – So, they conclude, the product is the PROPERTY of the producer.
You acknowledge it yourselves – there you are, caught by your aphorisms, convinced by
your own words.
Tread softly, if you please: I think that it is you yourselves, Messieurs, who are
mystifying yourselves by your false metaphysics and your grandiloquence. Allow me
first of all to make a little observation: it will become clear afterwards on which side the
sophism lies.
A man writes a book: that book is his – I can say this without any trouble
whatsoever – just as a piece of game belongs to the hunter who has killed it. He can do
whatever he likes to his manuscript: he can burn it, have it bound, give it as a present to
his neighbour – he is free to do all these things. I would even say, with the Abbé
Pluquet,** that since the book belongs to the author, the author has a property in his book
– but let us avoid ambiguities. There is property and property. This word is subject to
very different meanings, and it would be a ludicrous way of reasoning to go over, without
any other transition, from one meaning to another, as if we were always dealing with the
same thing. What would we say about a physicist who, after writing a treatise on light,
and consequently being the proprietor of this treatise, claimed to have acquired all the
properties of light; who maintained that his previously opaque body had become
luminous, radiant, transparent, that it could travel at the speed of 180,000 miles per
second and therefore enjoyed a kind of ubiquity? You would say that it was a great
________
(*) Proudhon is alluding ironically to the famous paradox “La propriété, c’est le vol!”
from his 1840 book Qu’est-ce que la propriété?
(**) See f_1778.
Chapter 1 Page 16
pity; that the man might certainly be a scientist, but that unfortunately he was mad. This
is more or less the situation you are in, and one could apply to you what the Governor of
Judaea said to St Paul: Multae te litterae perdiderunt [‘Your great learning will be your
undoing’] when from property in the product you deduce the creation of a new kind of
landed property. In springtime poor peasant-women go to the woods to pick strawberries,
which they immediately carry to market in town. These strawberries are their product and
consequently, to use the arguments of the Abbé Pluquet, their property. Does this prove,
though, that these women are what one calls proprietors? If one were to say this,
everyone would think that they were the proprietors of the forest from where the
strawberries came. But alas! quite the opposite is in fact the case. If these sellers of
strawberries were proprietors, they would not be going to the woods to look for the
dessert that will be eaten by the proprietors: they would themselves be eating them.
So let us not go on so lightly from the idea of production to that of property, as
Chapelier did in 1791, thereby bringing this confusion into the law. The synonymity
which some people are trying to establish here is so little justified that common usage,
too, has pronounced itself against it. It is generally accepted in everyday parlance and in
science that if someone can accumulate in his person the dual status of producer and
proprietor, these two titles nevertheless differ from one another and are frequently even
opposed. Certainly, the product constitutes the credit [l’avoir] of the producer, as the
book-keepers say; but this credit as such is not yet CAPITAL, still less is it PROPERTY.
Before getting to that point there is quite a distance left to go. Now, our task is not to step
over this distance, as M. de Lamartine does with his grand words, which resemble stilts,
but, rather, to clarify and carefully mark it out.
To put it in two words, and also to return to our comparison, the work of a writer
is, like the harvest of a peasant, a product. If we go back to the principles which underlie
this production, we come to two elements from whose combination the product results:
on the one hand, labour, and, on the other, a certain tenement [fonds], which for the
farmer is the physical world, the soil, and for the man of letters it is the intellectual world,
the mind. When the terrestrial globe was carved up, each of the portions on which the
farmers obtain their harvests was called landed property, or simply property – something
that is quite different from the product, since it exists before the latter. It is not my task
here to look for the
Chapter 1 Page 17
causes of this institution of landed property, which my opponents do not attack in any
way, and from which they merely seek a counterfeit [analogy]. These causes, which are
of a rather elevated degree, have nothing to do with our current investigation. I am
merely availing myself of the distinction so clearly established between the agricultural
product and landed property, and this is what I have to say: where a writer is concerned, I
can certainly see the product, but where is the property? Where can it be? On which
estates are we going to establish it? Are we going to carve up the world of the spirit on
the same model as the terrestrial globe? I will not oppose this if it is possible, if there are
sufficient grounds for doing this; if an appropriation of this kind does not in itself awaken
any repugnance, does not contain any inherent contradiction; if, in this respect, the
disparity between the physical world, which is susceptible of division and which does
have to be divided up, and the intellectual world, incompatible as it is with the idea of
property, is not one of the organic laws of the constitution of mankind. Well, have these
questions been answered? Have they even been posed?… Will it by chance be the very
product of the writer, will it be the book, this conquest of genius, that, detached from the
intellectual joint stock, is in its turn to become a stock for exploitation, an item of
property? How, on the strength of which social relations, of which legal fiction, by virtue
of which motives is this metamorphosis to be carried out? This is what you have to
explain – what I will try to do very shortly, but what you completely fail to do, since
without any transition you go straight from the idea of production to that of property. The
man of letters is a producer; his product belongs to him: no one disagrees with you there.
But, once again, what does that prove? That one doesn’t have the right to claim it from
him in any way? All right. And what then?…
But here a new question arises which begs to be discussed separately.
exchange [rapports commutatifs].
Since in order to establish literary property it was necessary to start by
demonstrating the reality of literary production, and since, moreover, the former does not
result from the latter, one has to assume that this property, if it is to take form, will be the
effect of relations which emerge subsequently. So let us take up the question again at the
point where we
Chapter 1 Page 18
left it, and let us follow the literary product in its economic evolution.
All wealth obtained by labour is at the same time a production of expended force
and the manifestation of an idea. When it leaves the hands of the producer, it is not yet
property: it is simply a product, a utility, an object of use or consumption. Now, the
condition of mankind would certainly be deplorable if each producer were reduced to no
more than the use of his own specific product. Instead, this use has to become general,
and, after having been a specialized producer, man has to become a universal possessor
and consumer. The operation by which the consumption of products is generalized for
each producer is exchange. It is therefore through exchange that each product or service
attains its value; it is through exchange that the idea of remuneration, payment, salary,
wages, indemnity etc. arises for all categories of production.
Property – whenever I hear this word I think of that landed, patrimonial property,
of which the division of the land has given us such a clear idea, and which is being
invoked as an analogy for the intellectual realm. Property, I say, which, as we have seen,
cannot result from production – can it arise from exchange? This is what we have to
examine now.
The laws of exchange are that the products are exchanged for one another; that
their evaluation or compensation take place in a contradictious and free discourse,
designated by the words supply and demand; that once the exchange has been carried out,
each exchanging party becomes the owner of what he has acquired to the same degree
that he was of his own product, so that after the delivery has been made and the exchange
accomplished, the two parties do not owe each other anything.
These laws are universal: they apply to all kinds of products and services, and do
not admit of any exceptions. The products of pure intelligence can be exchanged with
those of industry in the same way that the latter can be exchanged between themselves: in
both cases the rights and obligations which arise from the exchange are similar. And why
is that? Because, as we observed earlier (§ 2), the products of human activity are all
essentially of the same nature and of equal quality, consisting of an expenditure of force
and the manifestation of an idea; and because all these products, from the idea expressed
verbally to the transformation or displacement imposed on matter, are limited creations,
ephe-
Chapter 1 Page 19
meral and imperfect creations, whose estate lies outside of man and whose proportional
average does not vary one bit. This is what allows the products of man to be exchanged,
to serve as a mutual measure – in short, to be used as payment for one another.
Now, in all this operation of exchange [dans toute cette commutation], I do not
see anything appear that could turn the exchanged thing into a rent- or interest-yielding
estate, as is the case with land – in short, I cannot see any property.
One can divide an operation of exchange into a sequence of moments, one distinct
from the other, all of which are important in some way and which in commerce
sometimes give rise to serious difficulties. There is the proposition or supply, which
sometimes precedes demand, and sometimes follows on from it; the appraisal or
negotiation of price, the sealing of an agreement, the transport, delivery, the inspection of
the goods, the receipt and payment of these. Amongst these diverse moments, which lead
to incidents of all kinds and on each one of which volumes have been written, it is
impossible to situate or conceive of a fact which could modify the first idea – there is
nothing that could change the status of holder, producer or acquirer of the thing and turn
it from a mere exchanging party into what we understand by the word proprietor.
Further on we shall address the issue of savings and capital, and we will ask
ourselves, as we are doing here, whether the notion of savings or capital can lead to that
of property. For the time being we are just considering the question of exchange.
So what I am saying is that just as the idea of literary production is by no means
sufficient for justifying the creation of a literary property – certainly not more so than that
of agricultural or industrial production would be sufficient to justify the creation of a
landed property – the notion of exchange, too, is even less sufficient, and this for two
reasons which are equally peremptory. The first is that the exchanged work is always
nothing more than a product, a fungible and consumable thing – the opposite of what, on
the basis of a generally accepted usage, we call property, that is, a tenement [fonds]. The
second reason is that after the exchange the object does not belong any longer to the
person who created it, but, rather, to the person who acquired it: this leaves the status quo
unaffected and turns upside down the hypothesis of a property to the benefit of the
producer.
Thus, the analogies so often invoked – and now accepted everywhere – of literary
production and industrial production, far from leading us towards any idea of property
whatsoever, actually take us further away from such a notion. This is what should be
understood better than by anyone else by
Chapter 1 Page 20
Messrs Frédéric Passy and Victor Modeste, who both maintain, with all the vigour of
which they are capable, that property is by no means a consequence of a productive
activity, and that those who, like M. Thiers, base it on the principle of the proprietor’s
labour are actually the enemies of property. It is evident – and I personally am of this
opinion – that landed property has another origin; that it is superior, if not prior to labour,
and that one would simply entangle oneself and compromise all one’s arguments if one
were to insist, as the champions of perpetuity do, that the man of letters has the status of a
producer, in order to derive from this that of a proprietor.
We live amongst producers with different specializations – these producers
exchange their products amongst themselves, but there is nothing in this exchange which
suggests the idea of, or could give rise to, a right of landed or patrimonial property.
Possession – this is the appropriate term when one speaks of the right of the producer or
the exchanging party to the product – begins for everyone with the product, nothing more
and nothing less, and ends with the act of exchange. Do ut des: I give, so that you may
give – give me a lesson in writing, arithmetic, or music, and I will give you some eggs
laid by my hens, a pint of my wine, some fruits which I have reaped, some butter or
cheese from my flock, as you wish. Sing me your poem, tell me your story; show me
your methods, your industry, your trade secrets, and I will house you, I will feed you, I
will pay your expenses for a week, a month, a year, for the whole period that you are my
teacher. Once the products and services have been exchanged, what happens then? Each
of the exchanging parties makes his own personal profit from what he has received,
assimilates it, distributes it to his children, to his friends, without the vendor having any
right to protest against this communication. Has one ever heard, for example, that the
young people of both sexes from France, Switzerland, or Belgium, who go to Russia to
work as tutors and governesses, stipulate for themselves and their immediate heirs, by
virtue of their appointments and fees received, that their pupils are in their turn not
allowed to become instructors of their compatriots, since tutoring is the property of the
tutor? That would be giving and retaining – something which utterly defeats the principle
of exchange. If that were so, the Russian landowners who engage these young people
could also demand that, after having finished tutoring their children and having received
the agreed salary, they then had to consume their emoluments on these landowners’
estates, and not
Chapter 1 Page 21
carry away any Russian gold abroad, which would be the most ridiculous of ideas, and
certainly the least acceptable. What the supporters of literary property are dreaming about
is, however, something quite similar: we will soon see under which pretext they do this.
In summary, everything that, as the product of either pure thought or industry,
comes on to the market is considered to be not an estate or a property, but, rather, a
fungible thing, one which is fully consumable by usage and does not recognize any other
master than he who has produced it or paid for it with something equivalent. With
property the situation is different. Land is in no way the product of man; neither is it
consumable, and property in it can be assigned to everyone apart from the person who
tills it. There is no clearer distinction than this: the monopolists’ line of reasoning
assumes it, even though they are themselves unable to express it, and all their talent
consists of muddling up ideas, confusing notions, giving rise to misunderstandings, and
drawing conclusions which are wholly unrelated to their premises.
People’s minds have been disconcerted, on the one hand, by the apparent
heterogeneity which exists between the various categories of production; and, on the
other, by the imperfect nature of the exchange processes, and, consequently, also of
commutative law.
Between the shepherd who produces butter, meat, and wool, and the manufacturer
who makes cloth, hats, or shoes, it seems as easy as it is natural to carry out an exchange
of goods. Each one’s labour is in this case incorporated into a material object – one that is
palpable and weighty, one that can be tried, measured, and tested, and the consumption of
which is of necessity restricted to the person of the purchaser and his family. Assessment,
transfer [tradition] and cash distribution [soulte] do not present any problems here.
Moreover, legislation in this matter goes back a long time and is quite precise.
But an exchange between these products and the work of genius that is an idea –
an idea which at first sight seems to be always left intact by consumption, and the
communication of which, made initially to a single person, can extend to infinity without
the producer’s intervention – does not seem as straightforward in practical terms. The
legislator
Chapter 1 Page 22
hesitates, and it has happened more than once that the interested parties have started
calling out such words as exaggeration, on the one hand, and ingratitude, on the other. At
all times commerce has always been full of injustice: the Jews who for three thousand
years have been engaged in trade – have they learnt to distinguish between exchange and
speculation, between giving credit and usury? The workers of pure thought complain
about having been given a raw deal, but what about the serfs of the land – were they
treated with velvet gloves?!... So let us examine these things dispassionately, and, just
because there is so much prevarication in this subject, let us not forsake common sense.
I will start with the simplest cases, moving on after that to the more difficult ones.
Let us assume a doctor is sent for to attend to someone who is ill: he recognizes
the nature of the ailment and then prescribes a medicine or suggests a course of treatment.
In this profession it is customary to calculate the fee due to the doctor on the basis of the
number of visits to the patient he has made, and the whole sum is paid to him once the
patient has recovered (in England, though, the doctor is paid after each single visit). What
has the doctor provided? Advice, a prescription perhaps, running to four lines of text – an
immaterial, intangible thing, which bears no relation to the price paid. One prescription
may indeed prove to be correct and save a person’s life – in that case a thousand francs
would not be too high a price to pay for it – but another may well not be worth the drop
of ink which was used to write it down. Now, everyone is aware that the doctor had to
leave his house in order to make this visit, that he had to give up part of his time, that he
had to make the journey on foot, in a cabriolet, or on horseback; that before becoming a
doctor and having a practice of his own he had to devote many years to studying, etc. All
that calls for indemnification of some sort: but what shall it be? No manner of calculation
would be able to give an exact figure. All one can say is that it is determined in
composite proportion to the expenses incurred by the doctor for his studies and training,
to the number of patients he has to see, to the competition he suffers from his colleagues,
and to the average level of prosperity of the families living in the area. In short, even
though there is no exchange of material objects, there is an exchange of values: that is
why the efforts of the doctor who saves a patient’s life and those of one who has the
misfortune of seeing the latter die are paid for in cash and at the same rates.
The teacher who rushes about town giving lessons is paid in the same way, and
according to the same considerations, as the doctor.
Now, it is worth noting that once the lesson has been given or the prescription
written, the person who has received these can do what he likes with them. If a pupil feels
like
Chapter 1 Page 23
passing on to someone else what he has learnt, if a patient wishes to indicate to another
patient the treatment that cured him, nothing can prevent him from doing so: neither the
teacher, nor the doctor will start a law-suit because of that. If practicing medicine is
forbidden to those who are not equipped with a suitable diploma, this is so for reasons of
law and order and in the interests of public hygiene, but in no way because of a privilege
of some sort. It is open to everyone to attend classes at the Faculty of Medicine and
qualify as a doctor. In short, the principle which is inherent in the process of exchange –
namely, knowing that once the object has been handed over, it becomes the property of
the person who received it – this principle is fully and wholly fulfilled here as it is in
other situations, too.
With regard to a university professor, the procedure is slightly different: the State
awards him an annual salary – which comes down to exactly the same thing. I know you
will point out to me that there is a law which forbids the reproduction of his lectures by
anyone else. I can accept this precaution of the law, which does not want the professor’s
thoughts to be mutilated, adulterated, or travestied by unintelligent or malicious listeners.
The professor is responsible for what he teaches, so it is therefore he who is entitled to
supervise the printing of his lectures. Beyond that, any profit which the professor may
make from his public lectures, over and above his state salary, must in principle be
regarded as dual income. This is something that can be tolerated in view of, say, the
lowness of the professor’s salary or as an incentive for his zeal, etc. I am not discussing
these motives here: what I’m saying is that this benefit of publication constitutes an
[official] supplement to the professor’s wages, as otherwise one would have to see in this
a violation of the rules of commerce, which do not permit the same goods to be paid for
twice. What arguments can one possibly draw from this to justify the creation of a
perpetual literary rent?
The magistrate, the clergyman, the state official – they are all treated on the same
footing. They, too, are intellectual producers, and it was in order to elevate the status of
their duties, which people are reluctant to mix up with lowly industrial work, that such
terms as tenures, fees, allowances, etc. were invented – although all of these, to no greater
nor lesser extent than the more modest term of wages, imply one and the same thing: the
price of the service or product.
The State frequently awards its old employees a retirement pension. This pension,
which is essentially awarded for the rest of their lives, must also be regarded as an
integral part of their remuneration, so therefore
Chapter 1 Page 24
it becomes standard practice [entre dans la règle]. In all this, I do not deny it, it is very
easy for abuses to creep in, but abuses do not cause the principle to disappear: rather, they
serve to prove it. After all, it is always the legislation of exchange which governs us, and
what does this legislation tell us? Supply and demand, free negotiation, a bilateral
contract, based on the principle of product in return for product, service for service, value
for value. Then, after the goods have been handed over, acknowledged, and accepted,
comes a receipt in full discharge [quittance]. Take note of this word: once the exchange
has been carried out, the parties are quits with one another. Each one takes away with him
his thing and disposes of it in the most unconditional manner, without being liable to pay
any royalties and in full sovereignty.
Let us now move on to the writer’s case. From what has just been said, it is clear
that if the writer were a public official, his remuneration would not present the least
difficulty. He would be treated like the university professor, like the magistrate, the civil
servant, the priest, all of whom carry out, like him, a work of genius, and who frequently,
without actually writing anything down, expend more eloquence, knowledge, philosophy,
and heroism than he who puts his reveries into verse, into written dissertations,
pamphlets, or novels. In this respect making any distinction between these various
services or products would be impertinent and insulting. Now, it is the case that the
hereditary principle has been abolished for the magistrature and priesthood, just as it has
been in industry: no more guilds and sworn trades. The salaries are annual and,
depending on the circumstances, may be rounded off by a pension upon retirement.
Likewise, competitions are held for these posts, just as industry is now subject to
competition. If he received a State salary, the man of letters would therefore ipso facto,
because of his status as a wage earner and by virtue of the contract whereby his labour is
hired [contrat de louage d’ouvrage] and which ties him to the State, lose any property in
his works. For he would have exchanged them for a fixed salary, which, since it covered
his whole life, would not need to be supplemented by a pension. – In France the
clergyman, who receives a State salary but has been given a mediocre stipend, charges
surplice fees over and above his salary and yet still complains about it. Teachers are paid
a certain sum for holding exams, academicians are issued with tokens [jetons de
présence] when they attend meetings. It would be a good thing to get rid of all these
bonuses, which are a vestige of our old customs, when people didn’t have very clear
ideas about the economy; when judges received douceurs or gratuities [épices] and the
clergy enjoyed benefices; when the nobleman used his privilege of arms to accumulate
that of property, whereas the peasant forever remained subject to mortmain and liable to
forced labour; when no distinction was made between the prince’s Civil List and the
Chapter 1 Page 25
public treasury; when, finally, production was servitude and exchange was mutual
swindling.
So now what is left is the independent writer, that is, the writer who is neither a
teacher, nor an official, nor a priest; who casts his idea to the four winds, onto sheets of
paper where a printer has laid it down in block letters. How is his remuneration to be
regulated?
The kings of France, who were the first to grant printing privileges, have told us
how, and all we have to do is to follow the path which they opened up. The author is an
exchanger [échangiste] – is that not so? With whom does he exchange, then? It isn’t with
someone in particular – that is neither with you nor with me – but, rather, IN GENERAL,
with the public. Now, since the State, as the organ of the public, does not allocate any
salary whatsoever for the writer – and I hasten to add that I am not asking for writers to
receive such a salary – it is clear that the latter must be regarded as a promotional
entrepreneur [entrepreneur de publicité] who carries on his trade at his own risk; that
from the commercial point of view his publications are an uncertain thing [chose
aléatoire]; that, consequently, a tacit contract comes into being between him and society,
whereby the author is to be remunerated, on a contract basis, by a temporary privilege of
sale. If the work is in high demand, the author will make a large profit; if it is rejected, he
will reap nothing. He is granted thirty, forty, or sixty years in which to cover his
expenses. I do not hesitate to assert that this contract is perfectly in order and just; that it
fulfils all necessary conditions, that it respects all rights and principles, and satisfies all
objections that might be raised. The author is, in short, treated like everyone else – nay,
like the very best. On what basis could he claim to be treated differently and, in addition
to what commercial law and commutative justice,* and economic reason, grant to him, to
obtain a perpetual rent?
This deduction is clear, and I defy anyone to find the least shadow of sophistry in
it. Let us repeat it one more time by summarizing what has been said:
Requests have been made to the government to institute, on behalf of writers, a
new property, a property sui generis, which would be analogous to landed property.
I am not saying anything against landed property, which was established on
considerations of a different sort, and which nobody is calling into question in this case. I
am just asking on what basis this analogy is made?
________
*) Proudhon is invoking a notion here which goes back to Plato and Aristotle.
Chapter 1 Page 26
In addition to that, the supporters of perpetual remuneration enter into an
economic/juristic dissertation which sets out from the notion that the writer is a producer,
and that as such he is entitled to the exclusive enjoyment of his product. – I accept that
comparison, but I must observe that the idea of production and the right which ensues
from it do not at all entail as consequences the institution of a property in the sense which
everyday usage has given to this word, and which is also the sense that one hears being
applied to men of letters. That the writer is entitled to the exclusive use of his manuscript
without sharing it with anyone, if that is what he wishes – once again, what does that
prove?
My opponents will tell me that every product or service deserves a reward, which
means that if the author presents his work for consumption, he is entitled, as an
exchanger, to receive an equivalent [commodity] in return for it. Again, I
agree with this condition, but I would like to point out to my antagonists that the idea of
exchange does not, any more than that of production, imply the idea of property. And,
always following the chain of analogies, I can demonstrate by the rules of commerce and
by the principles of commutative justice that the writer who has been awarded a
temporary privilege for the sale of his works has been sufficiently paid. Certain people
want this temporary privilege to become a perpetual one. This is just as if the peasant-
woman I was talking about, who is offered 50 centimes for her basket of strawberries,
were to reply: “No, you must pay me every year, in perpetuity; you must pay me and my
heirs 10 centimes every year”; it is as if the producer of corn, meat, wine, etc. were to
refuse to be paid directly for his wares and insisted on substituting a perpetual rent for
their market price. It would be like asking, as Jacob did, for a right of primogeniture in
exchange for a plate of lentils. In that case there would soon not be any more commerce,
since each family would have to produce everything on its own, so as to avoid being
crushed under the countless yearly rental dues [redevances] which would arise from
every single exchange. The absurdity of this is manifest.
Do these people at least have a plausible pretext for demanding on behalf of
artistic and literary producers, and with the exception of all other categories of producers,
this perpetuity of tribute? No, they are not alleging anything. What the advocates of
perpetuity are demanding is a purely gratuitous gift, which does not rest on any
consideration relating to, say, the dignity of authors and artists, or the excellence of their
products, and which, consequently, is quite out
Chapter 1 Page 27
of order. Why this kind of eternal pension for producers whose works, being the
expression of individuality and of the moment, just like all other types of product, are by
their very nature limited, imperfect, fragile, precarious, and ephemeral? Do these people
not realize that the creations of pure thought, just like those of industry, are used up
rapidly and obliterated by the incessant movement of general thought, that they are
absorbed and transformed by other works? A book lasts on average for no more than
thirty years: beyond that term it no longer corresponds to the state of people’s minds; it is
overtaken, it has served its time; people stop reading that book. Some books – a barely
perceptible minority – do survive across the generations, but as monuments of ancient
languages, as historical testimony, as objects of archaeology and curiosity. Who
nowadays reads Homer and Virgil? It takes a whole course of studies in order to
understand them and appreciate their beauties. Attempts have been made to perform the
plays of Aeschylus and Sophocles, but they never succeed. The Bible, as it was passed
down from Israelites to Christians, has, so to speak, been travestied. Quite recently we
saw signs of how Béranger [who died in 1857] has been forgotten: within a few years no
one will talk about Lamartine or Victor Hugo. Like thousands of other writers, they will
remain in the memory of inquiring scholars. That will be their immortality.
My opponents will retort that if such is the duration of works of the mind, what
drawback can I possibly see in granting writers a perpetual privilege?
The drawbacks which I see in making such a concession are serious and of
several kinds. First of all, perpetuity is unjust: it violates the law of exchange, which
demands that each product be paid, as far as is possible, by an equivalent one. Going
beyond that means hallowing parasitism and injustice. Secondly, this perpetuity would
signify an abandonment of the public domain, which, instead of profiting from the
intellectual labour of private individuals, would find itself positively weakened and
diminished. Lastly – and this is something which the champions of perpetuity do not
realize – the consequence of this would be that the duration of literary works, instead of
following its normal course, would be artificially and indefinitely prolonged by the very
fact of the privilege; that it would therefore become an obstacle for the production of new
works, and all this to the great detriment of progress. I have nothing more to say about
the first of these propositions – that is, the violation of the principles of exchange. I will
return to the two other consequences in the third part of this investigation.
Chapter 1 Page 28
Before going any further, allow me to dispel some doubts which arise from the
false terminology used both by the supporters of literary property and by those who
combat it. I know that all these details are tedious, but because of these doubts it is
necessary to go into them.
The two principal points to note here are: 1º) that there is a transaction of
exchange between the author and the public; 2 º) that, as a result of this exchange, the
public is put in possession of the work and becomes, subject to payment [of the author],
its proprietor. Once this has been taken note of, everything else becomes clear: the clouds
accumulated by the many debates on this matter will be seen to vanish.
In order to establish his concept of an intellectual property, the Abbé Pluquet
compares a work of literature to a patch of LAND [fonds] cleared by the author, and the
communication of it which he then makes to the public is the HARVEST. – One can see
what absence of logic, and even of grammatical sense, marks Pluquet’s writing. The work
of genius is not a piece of land [fonds], but a product, which is something altogether quite
different. Its communication is not a harvest; it is the very fact of its exchange – that
which jurists call handing over [tradition] and tradesmen call delivery of goods
[livraison] – it is precisely the act by which the author dispossesses himself of his work.
It is absurd to give to this price the name of harvest – unless, perhaps, one were to say
that the price of a sack of corn is the harvest yielded by the corn, which would of course
be a case of mixing up different concepts and things. The tilled and sowed land yields
corn as its harvest; and this corn, after being taken to market and sold, receives its price:
those are the facts. Similarly, someone who explores the fields of thought extracts a
product from them which is his book; and this book, by being published through printing
and sold, secures to the author his remuneration.
Others, taking up Pluquet’s rigmarole and insisting on treating the literary work as
a field, call the copies which the printer makes of such a work the fruits of this field.
Now, goes their argument, every landed proprietor makes these fruits his, and so etc…
All this amounts to repeating, in a different guise, Pluquet’s absurd notion. The work of
an author is a more or less shrouded idea, which exists within him independently of
printing, of writing, and I would almost say of words as such. The discourse in which
Chapter 1 Page 29
this idea is formulated; the paper and letters by whose means this discourse, first
conceived in the mind and then uttered verbally, is fixed and rendered so that it is visible
to the eye, are not the offspring of the idea, the fruits which emerge from it, but, rather,
the means of manifestation which it avails itself of. It is an alien product which comes
here to the author’s aid, almost like the midwife who comes to the aid of the woman who
is giving birth. The truth of this is so indisputable that the product of the printer, this
auxiliary, non-responsible product is paid by the author or by his publisher before the
work of the author himself is paid.
M. Victor Modeste, in pursuing this false analogy of the literary product to a piece
of LAND [fonds], protests against the term salary, which some opponents of perpetuity
had inappropriately used for defining the author’s right. He argues that the author is not
in the pay of anybody; that there is no hiring of labour at all in his case; that he does not
create by order; that, therefore, the term ‘salary’ is inaccurate and gives a false idea of the
thing in question. All right, then: let us cast away the word ‘salary’, which could only
really be applied if the writer were to be proclaimed a public official, and let us simply
say that the author is a producer; that consequently he is entitled to receive a
remuneration for the communication of his work. But what would M. Victor Modeste
gain from this for his argument? Product in return for product, service for service, idea
for idea, value for value: we remain throughout in the sphere of commutative law, and
outside that of property.
In arguing against the perpetuity of author’s rights, some people have invoked
public utility. This is an ill-starred argument to use: if the perpetuity of a writer’s rights
could arise from his status as a producer, as the supporters of literary property have tried
to maintain, there would be no public utility ensuing from this; the [author’s] property
would have to be acknowledged beforehand, and then the author would have to be
reimbursed by an equivalent. Public utility has nothing to do with this matter – whereas
public law certainly does. By the fact of having been published, a literary work enters the
domain of publicity – that is, from then on it forms part of the collective patrimony
[l’avoir collectif], subject to clearance [liquidation] of the writer’s rights in accordance
with the principles of exchange.
Chapelier, in his report on the law of 1791,* committed a similar error when he
said that: “Once the privilege of sale has expired, the property of the public begins.” This
is again to misunderstand the nature of the contract of sale and exchange, and, in
particular, that which
______
*) See f_1791.
Chapter 1 Page 30
is considered to come about between the author and the public. In all transactions of sale
or exchange the property of the purchaser begins once the goods have been delivered or
received, even if the payment were not to take place until much later. Now, in the case of
books the delivery [livraison] takes place at the very moment of publication: therefore the
public’s property begins with the latter. Let us not confuse, as Chapelier did, these two
things: the property in a literary work and the right to sell copies of it. The object of the
former is the book’s content: it terminates for the author and begins for the public at the
moment it is put up for sale. As for the privilege, which is simply a guarantee of
remuneration given to the author and which concerns no one else apart from those who
trade in books, that terminates for the author and begins for all booksellers alike once the
statutory term [of copyright] has expired.
This taking possession by the public of a work which it pays for seems to the
champions of literary property to be an act of usurpation. After having said that the
communication of the manuscript is the author’s harvest, the Abbé Pluquet pretends that
this communication, the exclusive property of the author, cannot be carried out without
the latter’s permission by those who have received it from him. Such a communication,
adds M. Laboulaye père, would be an act of theft: it would be like gathering crops in
someone else’s field… They will never get over this! Let us not confuse here trust and
communication. Insofar as a work is unpublished, those to whom the author confides his
secret would not be able to divulge it without committing a breach of trust and an act of
injustice. But if the communication has been paid, if a single copy has been sold, that
counts as publication. Payment of the price entails for the purchaser the right to use it, to
enjoy it, to share it, to quote from it, to read from it in public. Would you forbid the
enthusiast who has just paid for a book to invite to his house a group of friends, to read it
aloud in their company, to lend it to them and circulate his copy? One would indeed have
to go as far as that, if one were to follow to its logical conclusion the reasoning of these
rabid advocates of literary property. In Paris it happens quite frequently that workers pool
their resources together, in order to buy a book which their means would not allow them
to buy individually. These associations for the communication of writings – will they be
prosecuted for encroaching on the property of authors?
Here the opponents of literary property succumb to another excess. It has been
claimed that the counterfeiter, in reprinting a
Chapter 1 Page 31
book, was simply making use of what belonged to him. In theory that is true. Everyone is
entitled to communicate, lend, and copy a book which they have bought, and to distribute
the copies of it. In practice, though, they have to wait until the author’s privilege has
expired, because to do otherwise would be to deprive the author of his legitimate
remuneration.
If that is the case, I hear my opponents say, if the property of a work passes from
the author to the public on the day that it is published, the author is no longer able to do
with his work what he would like to: he would no longer have the right to correct it, to
modify it, to expand or abridge it, since this would amount to a derogation of public
property.
This objection, so delicate as it is for authors’ self-respect, can be resolved just as
easily as the other ones: as a matter of fact, it is not even an objection. One can concede
that for the whole duration of his privilege it will be left to the author’s discretion if, in
subsequent editions, he should wish to correct himself, to make amendments to his work,
even to retract his own arguments, to improve and enrich his work. But he is no longer
free to suppress it, for, I repeat, on the one hand, from the commercial point of view, the
public has been put in possession of the work; and, on the other, as far as the sincerity of
the work, the trustworthiness of what is contained therein, its literary probity, are
concerned, the author cannot any longer ‘unsay’ what he has once said; there is nothing
he can do so that what the public has read is ‘unread’, as it were, so that readers do not
take note of it and fail to appropriate it and thereby lose the right to call the author to
account for it [le représenter au besoin à l’auteur], in spite of all his dissimulations and
retractions.(1)
___________
(1) Here I can cite a ruling of the Imperial Court which concerns me personally. In 1836,
I had anonymously published a short treatise on general grammar to follow suit to
Bergier’s Éléments primitifs. My work sold almost no copies at all. A few years later,
after further studies had convinced me that my first essay was defective, I decided to
sacrifice it and sold as waste-paper what I had left of the edition. A bookseller bought
these copies, and, in 1852, he put them up for sale with my name on them. Certainly, this
was my work, I did not deny it. But the point is that I had not initially signed this work
because I wasn’t entirely confident about it, because I had wanted to publish it subject to
further revision and amendments, and I had had every reason for congratulating myself
on this act of discretion on my part. So why was someone now selling, under my name
and without my consent, a work which I had redone, which I had reserved the right to
republish myself, and from which I was expecting the reimbursement of the losses I had
suffered with my first edition? Of course, I was right to consider myself injured, both as
an author and as a publisher. The Commercial Tribunal of Besançon decided in my
favour, but the Imperial Court, which considered the facts of the case from a different
point of view, and
Chapter 1 Page 32
If the writer whose work has entered the sphere of publicity no longer has in
theory the right to withdraw it, it is with even greater reason that such a right cannot and
should not belong to his heirs. In this respect, the line of argument of the champions of
the public domain requires yet another rectification. One of the reasons why, according to
them, the principle of literary property should be jettisoned, is that the families of
authors, driven by considerations or interests that are alien to the latter, might seek to
destroy or mutilate their works. This argument is as faulty as that which invokes public
utility, for if this property is legal, if it is transferable, nothing can restrict it, neither in the
person of the author, nor in his family. However, it is clear that the jurists whom I am
referring to have looked at this question the wrong way round. It is not at all because a
writer’s family might abuse of its property right and destroy his work that this property
should be rejected. On the contrary, it is because the public has been put into possession
and irrevocably turned into [the work’s] proprietor, as a result of publication, it is because
an exchange has taken place, that the author and his family lose the right to dispose of the
book with full sovereign power, in compensation of which they are anyway awarded a
temporary privilege of sale.
__________
evaluating them in an arbitrary manner, decided otherwise. It allowed itself to be
convinced that I had instituted legal proceedings out of mischief; that I was guided not by
love of the truth, but by the wish to cause some pages which were compromising for my
self-respect to disappear; that it was intolerable that a writer should lie to the public in
such a way etc. To which I replied that the bookseller had merely to have waited till my
new publication was ready; that then he would have been free to compare the two works,
to underline the passages that served to condemn me, and then, if that was the conclusion
he came to, to reproach me in public for my insincerity. These observations were
considered to be specious, and the sophist was nonsuited. The Court, I repeat, was right
on one point: that a writer’s idea, once he has published it, becomes public property. But
the moment hadn’t then come yet to apply this principle against me, since I was myself
preparing to bring out a new edition, since my privilege as a publisher was guaranteed by
the law, and so by authorizing a publication which I disclaimed, my interests were being
prejudiced in a very real manner.
Chapter 1 Page 33
[prestation] or limited partnership investment [commandite] cannot be used to deduce
that of a literary property, supposedly analogous to landed property, and give rise to a
perpetual rent.
“But,” I hear my adversaries say, “your theory is fundamentally unsound: it rests
on an inaccurate comparison. What takes place between a writer and the public is not an
exchange, as you call it. Rather, it is more like a loan. For, indeed, the literary product
does not belong to those which are used up, like the majority of industrial products. The
communication of this product constitutes therefore not a transaction of sale or exchange,
but, rather, one of loaning [prestation]. Now, unless one were to claim that the loan ought
to be for free – something that would not be recognized as legitimate practice in any
country – one must concede that the publication of a work of literature, science, or art,
just like the lending of money, the renting of a house, of a ship or a machine, can give
rise to a perpetual revenue. Undoubtedly, the writer is free to hand over for nothing the
fruit of his exertions – generosity and self-sacrifice as such have never been condemned
amongst people. Equally undoubtedly, he has the right to turn the product of his sleepless
nights into an object of exchange, and, after having charged royalties for twenty or thirty
years, to renounce its usufruct and to launch his book into the public domain. But that
would on his part be a complimentary act, a veritable donation, in the absence of which
common sense and all possible analogies dictate that rent or interests should be paid in
perpetuity to the writer.”
I certainly do not intend to discuss here the question of lending on interest and the
gratuitousness of credit: that would mean provoking a new scandal and encouraging
people to accuse me of sophistry even louder than before. I have said it once to Bastiat: I
don’t want anything for nothing; I realize that if my neighbour renders me a service by
lending me, say, some grain, or a tool, he has the right to demand compensation for that.
All I am asking for is not to be forced to pay interest when I am able to come up with a
better solution: I am entitled to do without someone else’s investment [commandite] in
my business if I can remedy my distress by other means. At any rate, I intend to pay only
that which is fair. That is my profession of faith with regard to lending on interest. Thus,
the holders of government stocks, the shareholders
Chapter 1 Page 34
of large companies, the capitalists of the Crédit Foncier and the Crédit Mobilier [national
mortgage banks], the constructors of houses etc. need not raise the alarm: I am not going
to interfere with their rights any more than I am interfering with that of property-holders.
What I am maintaining is that the communication to the public that is carried out by an
author is in no way an operation of credit. Neither is it lending, nor letting out [location],
nor limited partnership investment. As I have explained above, it is purely and simply a
commercial transaction, one of exchange.
Everything in the reasoning of my opponents is false, illusory, and contrary to the
principles of economic science and business practice. It will not be difficult for the reader
to convince himself of this, however little he may follow the thread of my arguments.
And, to start with, those who argue that an intellectual product cannot give rise to
an exchange transaction because it is not physically used up are parting from a false
hypothesis. That presupposes in the first instance that exchange covers exclusively those
things that get used up, whereas lending covers those which aren’t consumable. Now,
neither of these suppositions is true: the provision [prestation] of food supplies, for
example, can most certainly give rise to an interest charge; just as the lending of capital,
land, and houses can turn into an exchange transaction. Corn, wine, everything that can
be consumed, can serve as material for a loan, commodum (*). Conversely, land and real
estate, everything which is not consumed, can serve as the material of a sale, venditio. All
legislations recognize this. The consumability or fungibility of the product is of no
consequence here: by itself it is certainly not a sign that the contract established between
the producer and the consumer or user is a contract of letting out or hire, or a contract of
exchange. Other signs are required for such a diagnosis to be made.
Furthermore, is it really true to say that the intellectual product is not consumable
by its very nature, that it is eternal? I have already had occasion (in paragraph 2) to
observe that this is by no means so: I can therefore only repeat, albeit in different terms,
my previous observation. What man produces by himself in the realm of philosophy and
art, just as in that of industry, is neither matter, nor ideas, nor laws. Matter is given by
nature in the form of substances and bodies, both organic and inorganic: man would not
be able to create or destroy a single atom of these. Ideas and laws are given to man by the
contemplation of things: he cannot suppress or invent a single one
________
*) In this specific sense ‘loan of an object’.
Chapter 1 Page 35
of these. The truth does not depend on him: all he can do is to discover it step by step,
laboriously; to formulate it as best as he can in words, in writing, in the works of his art
and industry. He is also free, at his own risk and peril, to ignore it, to shut his eyes to it, to
proscribe it. Mendacity and sophistry are open to him – he will very soon realize what
they are worth. As for beauty and justice, they are as independent of our reason and our
will as truth and ideas: in this respect, we are never faced by anything other than the
choice of either bringing ourselves nearer to them by incessant study and absolute
devotion, or of denying them by forsaking all dignity and all ideals. Then we will know
what price is to be paid for cultivating injustice and unseemliness: two things which have
sin as their common denominator.
So, once again, what is it that man produces if he does not in any way create
matter or life, if he does not make his ideas, if he cannot ascribe to himself the revelation
of beauty and justice; if his greatest glory, in everything that concerns the employment of
pure thought, is to accurately convey the truth, without any errors, deceit, or extras?
Man produces, as far as his limited being is able to, movements and formulas: the
former serving the purpose of giving, in a particular manner, a greater utility to the
substances of nature; and the latter serving as an approximation to what he can glimpse of
the truth and the ideal. All this is essentially personal, circumstantial, and consequently
transitory, subject to perpetual revision, and of little duration. It is this which allows one
to appreciate the fate of works of intelligence.
Which are the writings that seem most secure from the fluctuations of opinion and
progress? Those which deal with the exact sciences, with geometry, arithmetic, algebra,
and mechanics. Well, the fact is that the textbooks for these subjects are constantly being
renewed: there are almost as many of them as there are professors teaching the subjects,
and it is always the oldest textbooks which are the least used. What does this incessant
renewing mean? That truth and certainty vary? Not at all: it is just that for the same idea,
for the same truth, for the same law, each generation – nay! each cohort of students –
needs its own special formula. And this, in other words, means that after ten, fifteen, or
twenty years, the writer’s work is completely
Chapter 1 Page 36
consumed. The form is worn-out: the work has fulfilled its purpose, it has done its
service, it is finished.
So it is not true to say that the writer’s product is inconsumable, that it is eternal,
and that therefore all subsequent generations are obliged to its author. What is eternal, I
repeat, are ideas and matter. Now, these things do not come from us. For ideas to become
properties for them to give rise to entailments, to an aristocracy of thought, the
intellectual world, as I said earlier, would have to be parcelled out after the manner of the
earthly globe. This parcelling out would have to be possible and, moreover, it would have
to be justified by considerations which no jurisprudence would be able to discover. We,
however, are just dealing with industrial and mercantile practice, with the purely
economic notions of production, exchange, price, salary, circulation, consumption,
lending, credit, and interest.
Having made these observations, both about the consumability of intellectual
products and the nature of things which can be lent, let us proceed to the theory of capital
and credit, and let us apply this to literary production.
First of all, the product of the man of letters, at the moment that it enters the
sphere of publicity, can it be regarded as capital?
Everyone knows what is meant by this word: it is a mass of products that have
been accumulated by saving and are intended for reproduction. Capital as such does not
exist: it is not a new object, it is a specific aspect of a product, considered in the light of
the use for which it has been destined. Thus, by the capital or chattel [cheptel] of a farmer
are meant such things as farming implements, live-stock, fodder, seeds, provisions,
domestic utensils, clothing, linen – everything that serves the work and subsistence of the
farmer and his family whilst they are waiting for the harvest. An artisan’s capital is made
up of the tools and raw materials with which he is furnished. Houses, machines, all types
of field labour are all capital assets. Man himself, insofar as he is considered as an agent
or engine for production, can be viewed as capital. A male subject of twenty-five years of
age, who is able-bodied and has learnt a trade, is on average rated at twenty-five thousand
francs.
Bearing all this in mind, it is not difficult to say what the writer’s capital consists
of. This capital is made up of his studies, his notes, of the projects he has started, of the
materials which he has gathered, of his personal library, of his manuscripts, of his
correspondence
Chapter 1 Page 37
of his observations, of the skills he has acquired in the course of his work, of the means
of subsistence which he has secured for himself whilst waiting for the revenues which his
writings are eventually supposed to bring in for him. Such is the writer’s capital. But it is
not this which he puts into circulation; it is not this which he offers to the public, for the
latter would not know what to do with it. The writer’s capital, like all tied-up capital, is
something that is almost unmarketable, incommunicable, which is not worth anything to
anyone except to the person who can turn it to account [i.e. the writer], and which, if put
up for auction, frequently doesn’t even fetch 10% of what it cost. So with regard to the
writer, the published book is not a capital asset – it really is a product.
Let us now look at this from the perspective of the public. The author’s product,
once it enters general consumption – will it be treated as capital? I have no objection to
that: but on whose account does it act as capital? On the author’s or the public’s? We
have just seen what capital consists of for each category of producers: it is an
ASSEMBLAGE, acquired by way of commerce or exchange, of instruments, tools, raw
materials, provisions, by means of which the producer is able to accomplish his task of
reproduction. In short, it is working capital [fonds reproducteur]. Here the word ‘capital’
or ‘stock’[fonds] here implies composition, accumulation, assemblage. In accordance
with the various professions and trades, this assemblage embraces a number of articles of
varying magnitude. Insofar as these diverse articles are in the possession of their
respective vendors, they do not constitute capital: they only become that after they have
been acquired by the consumer.
So therefore it is not for the benefit of the person who produced and sold the
wares that the product yields interest when turned into capital in this way: it is, rather, the
purchaser who profits from it, who bears this interest in his conversion costs [frais de
reproduction]. So the writer certainly has the right to include in the price which he must
obtain for his works the interest on the money which he spent on building up his personal
library, on his research trips, on the scholarly projects from which he benefited: all this is
interest on his own capital. But that he should claim a perpetual royalty [redevance] from
the public for the deliveries which he has made to it, under the pretext that his works have
entered the flow of public capital – that would be ridiculous. Yes, the writer’s work has
become part of the public capital: the individual product of an individual now forms part
of the collective patrimony [l’avoir collectif]; but it is precisely for that reason that the given
individual cannot claim anything else apart from the price of his product, the
remuneration of his
Chapter 1 Page 38
efforts. It is not for him that the collective assets will produce interest, if interest is at all
produced: it will, rather, be for the public.
Our whole reasoning therefore holds good: the conclusions we have reached by
applying the notions of product and exchange turn out to be identical when we come to
analyze the question of capital.
I know that some people will insist: “Why can’t the theory of lending and hire
also be applied to works of intelligence, just as that of exchange is applied to them? Why
can’t the writer’s remuneration, instead of expressing itself as a price that is paid once,
take the form of interest due to him? You accept the principle of interest; you
acknowledge that it is equally applicable to objects of consumption, mutuum* as it is to
things which are not used up and to real estate, commodum [sic].** Why, then, once
again, is this latter mode of remuneration, which satisfies the self-respect of writers, not
to be preferred to the other one, which seems less just and causes protests?”
Let us make ourselves clear: if it is only a question of replacing an operation of
sale and purchase by an operation of credit, I have nothing to say against that. What is
credit? An exchange for a long period, which entails for the lender, vendor, or traditor an
indemnity called interest, but which also presupposes that the borrower is ultimately able
to pay back what he owes, thus excluding the possibility that a debt and consequently the
interest due could ever be perpetual.
Thus, the trader who discounts his bills of exchange pays interest to the bank.
Nothing could be fairer than this, since he is after all receiving a service; since, while
waiting for his goods to be paid, he needs to come by available funds, and this capital is
lent to him. But it goes without saying that he only owes interest until the day on which
the bank has got its money back – a day that is fixed on the bill of exchange which is
presented at the discount.
Similarly, the consumer who buys on credit has to pay interest to the vendor: that,
too, is fair, since this interest is compensation for the delay in making the payment. Once
the payment has been made, interest ceases to be due. In this case, as in the preceding
one, the interest isn’t being demanded for its own sake: it is demanded simply as the
remuneration for a service, as the price of a temporary credit. The proof of this is that no
banker would consent to renew forever the liabilities of his clients, and that the latter
would give up their business
_________
*) In Roman law mutuum refers to a loan in which the borrower is entitled to consume
the goods lent and return an equivalent amount. (Black’s Law Dictionary)
**) In Roman law commodatum (misprinted in the original text) designates the
gratuitous loan of a thing, to be returned by the borrower to the lender on the terms fixed
in the contract. (Adolf Berger, Encyclopaedic Dictionary of Roman Law, 1953)
Chapter 1 Page 39
or go bankrupt sooner or later, if they could only subsist on this circulation.
Thus, someone who raises a mortgage loan must also pay interest, but it is always
with the hope and the possibility of releasing himself from the mortgage as soon as he is
able to.
And, finally, the State creditor, just like a shareholder in the State railways, also
receives interest; but the State retains the right to redeem its debts; Companies [with
shareholders] are established for no more than 99 years, and it is seen as a misfortune, as
a sing of impoverishment and decadence if the State, instead of paying off its debts,
increases them; if a company, instead of recouping its outlay with a profit within the
prescribed period, is not even able to recover half of the money invested.
Everywhere you will find that credit is just a form of exchange: if this is what is
being demanded for intellectual production, I have nothing against that – it would just be
a case of sticking to the status quo. But who can fail to see that authors have something
quite different in mind? It is a perpetual rent which is being solicited – something that
goes beyond the notion of credit, just as it goes beyond those of production and
exchange.
All these pretexts, therefore, give out and refute one another. This claim to a
property is merely based on arrant trickery. From the moment that the work of genius is
legally and scientifically classified as a product, it is entitled to no more than a specific
remuneration, which can be done in two ways: either by life annuities, or by a temporary
privilege of sale. To ask for more than this would be neither credit nor exchange; it would
not be honest business dealings; it would be worse than usury, since usury, like interest,
does eventually come to an end. No, it would amount to turning human understanding
into a demesne [domaine], and to making the public, State, and society into serfs of
literature, which for them would be a hundred times worse than being serfs of the land.
Let us nevertheless admit for one moment the possibility of there being
intellectual property. In that case we would have to move on and consider its application
– and my question is where and with what could such a property be created?
Chapter 1 Page 40
It would certainly not be on the basis of the writer’s product that this property
could be established: we have proved sufficiently that the idea of production in no way
implies that of property; that, accordingly, the product, subject as it is to the laws of
exchange, supply and demand, handing over [tradition], payment, and receipt, cannot
become an estate [fonds] on whose basis a perpetual royalty [redevance] might be
constituted.
Still less is it on the author’s capital that such a property might be established: this
capital, precious as it is for the writer himself but quite useless for the public, which cares
only for the final product, is a worthless security [non-valeur] that would certainly be
unfitting for the object which these new would-be proprietors have in mind. As for the
ideas of credit and interest, in which some people try to find an analogy that would
justify the idea of a perpetual royalty [redevance], they are utterly exclusive of such a
perpetuity in the first place.
So what other expedient is there left? Well, to appropriate the spiritual domain,
the realm of ideas, just as the land and the realm of matter have been parcelled up and
appropriated. M. de Lamartine is aiming for no less than precisely this:
«A man expends his energies on making a field fertile or on creating a lucrative
industry. You assure to him the possession of these for all times and, after his death, to
those whom blood kinship or his written testament designates. Someone else spends his
whole life in forgetfulness of his own self and of his family’s interests, in order to enrich
all of mankind after his death either by a masterpiece or by one of those ideas which
transform the world… So his masterpiece is born, his idea has blossomed forth: the
intellectual world seizes it; industry and commerce exploit it; it becomes the source of
riches; it yields millions of francs in labour productivity and circulation; it can be
exported like a natural product of the soil. And you would accept that everyone should
have a right to it except for the one who created it, except for the widow and children of
this man, who would be condemned to begging in misery alongside all this public
prosperity and the countless private fortunes that have been engendered by the thankless
work of their father!...»
M. de Lamartine mistakes the fanfares of his eloquence for coherent arguments.
For him, exaggerations, antitheses, exclamations, and harangues take the place of logic.
You ask him for a definition, and he gives you a painting; you ask him for proof, and he
calls the gods to witness, swears by his soul, evokes spectres, sheds tears. M. de
Lamartine is one of the contemporary writers who has financially benefited the most
from his fluency with words. He has been remunerated, in cash and in celebrity, far
beyond what his merits would deserve, and yet he complains about the misery suffered
by writers. Whose fault is it? Is society to be accused of ingratitude just because M. de
Lamartine does not know how to conduct himself any better than he knows how to
reflect?
Chapter 1 Page 41
I do not ask for anything better than to gratify M. de Lamartine’s wishes to the
full, but for this one still has to know exactly what it is that he is demanding. So let us try
to drag the thoughts of this great assembler of rhymes out into the light of clarity.
What is being demanded is a literary property which would be something
different to the mere possession of the intellectual product or the price of that product; a
property which for the intellectual and moral world would be the same as landed property
is for the industrial and agricultural world. So it is the idea itself – that is, a piece of the
intellectual and moral world, and not just the formula or expression given to this idea –
which is to be appropriated. The comparison between a man who has cleared a field for
tilling and who, with the permission of society, becomes the proprietor of that field, and
the writer who has conceived, brooded, hatched out, and developed an idea, makes this
intention clear to everyone.
But for a start here we have M. Frédéric Passy – one of the most ardent
champions of literary property, an enemy of sophists just as much as he is an enemy of
M. de Lamartine – who maintains – and M. Victor Modeste is also of this opinion, and I
too agree with these two gentlemen – that this manner of legitimizing the dismemberment
of the public domain and its appropriation on the grounds of [intellectual] work is
patently unjust; that it leads to no less a consequence than to bring landed property into
disrepute, and that those who defend such an opinion, whether they realize it or not, are
the greatest opponents of property. I would gladly put my signature to this observation,
and on these initial grounds I conclude that M. de Lamartine’s demand should be
declared ill-founded.
By virtue of what principle is literary property, then, to be conferred if the status
of the producer, worker, elaborator, or accoucheur of an idea – it is M. Frédéric Passy
himself who says it and proves it – cannot be considered a sufficient claim to such
property? Is it to be by virtue of the legislator’s discretion? Bossuet and Montesquieu, as
M. Victor Modeste observes, had already claimed that landed property had no other
foundation than in the law, in the authority of the legislator. But this system has been
abandoned as one that is tainted by partiality and arbitrariness and which gives no answer
to this formidable question: Why did the legislator, when parcelling out the land and
allocating property, not make the parts equal and take suitable measures so that in the
future, irrespective of all population movements and changes, they would also remain
equal? Certainly, the legislator,
Chapter 1 Page 42
when founding the institution of property, had his good reasons to do so: he took into
account considerations of public law and order. Now, these are considerations which it is
difficult to show understanding for in the view of the inequality of wealth. The principle
of sovereignty, the legislative and juridical power, which is insufficient, at least
according to modern critics, for legitimizing landed property – is it not even less
sufficient for the legitimization of intellectual property? And, moreover, even if it were
true that property rests on the legislative authority, who is it, I ask once again, who dares
to tells to us that the legislator should consider himself as bound by this first constitution
[of landed property] and should give the latter a counterpart by creating a literary
property? Who is it who dares to assert that landed property, the parcelling out of the
earth’s surface, should not have as its necessary condition, corollary, and antithesis
precisely the indivisibility of the intellectual world?
As for the right of first occupancy or of conquest, which has also been used in
attempts to explain the formation of property, there is no need whatsoever to ask if our
economists and jurists would subscribe to it: for they reject it with utter indignation. The
notion of such a right was worthy of the barbarity of feudal times: nowadays you
wouldn’t find anyone who would be willing to support it.
What foundation are we therefore to give to landed property, this alleged
prototype of literary property, if this foundation lies neither in the law, nor in labour, nor
in conquest, nor in the right of first occupancy? This is something we have to find out,
since, according to my gainsayers, once the principle of landed property has been
identified, it will serve as the pretext and prototype for literary property.
M. Frédéric Passy, who was very much aware of the danger for landed property
that is posed by the legislative or governmental theory, by the utilitarian theory and by
that of conquest; who, on all these points, agreed with yours truly, the “sophist”, looked
for it elsewhere. He plunged into the depths of psychology. And what did he find at the
bottom of this well? The truth? Alas! the goddess in her immortal nudity is not made for
the old men who come from the synagogue of Malthus.(*) M. Frédéric Passy has
discovered, through his analysis, that man is an active being, that he is intelligent, has a
will of his own, is free and responsible – in short, that he is a personal being; that as a
result of this activity, this intelligence, this will, this responsibility, this personality, he
tends fatefully towards appropriation, towards setting himself up as the lord of everything
that surrounds him, and that such is the origin of property… – Poor fellow, who, after
________
*) In 1868, three years after Proudhon’s death, Passy would in fact publish a book
entitled Le principe de la population: Malthus et sa doctrine!
Chapter 1 Page 43
overheating his brains in digging out this psychological hole of his, failed to realize that
all he was doing was simply repeating in other terms what he himself had just refuted in
the theories of those who justified appropriation by labour, by government decree, or by
conquest.
Certainly, man is an active, intelligent, and responsible being, with a will of his
own, and tending to set himself up for a master – and, this pride notwithstanding, he is a
being worthy of consideration and respect. His person, insofar as he does not take the
liberty of committing any acts of aggression against his fellow-men, is inviolable; his
product sacred. But what can you conclude from all this? Well, simply that, in order to
deploy his being and manifest his personality, man has need of a material on which to act,
of instruments, education, credit, exchange, and initiative. Now, this is all satisfied fully
by [the concept of] possession, such as it is defined and interpreted by jurisprudence,
such as it is hallowed by the Code Civil, such as it has been understood by all peoples
from time immemorial, and such as is still practiced nowadays by the mass of the Slav
peoples. This possession, which saves man from communism – this is something that
political economy can be satisfied with. I have demonstrated that the theories of
reproduction, of labour, exchange, of price, value, salary, savings, credit, and interest, do
not demand, do not presuppose or imply anything else beyond that. The relations of city
[i.e. society] and family, and the principle of heredity itself – all these do not ask for
anything more. Undoubtedly, political economy does not reject property, God forbid that
I should say that! But property is not the conclusion it arrives at; it could do without it; it
hasn’t created it in any way, but found it already in existence; it has accepted it, not
invoked it as such – the proof being that in the realm of economics things would still
happen in the same way if property did not exist, and that it is our century’s most
pressing question to ascertain on which foundation property rests, for what purpose it was
instituted, and which is its function in the system of mankind.
So, once again, why this investiture, or this usurpation, or this creation of our
spontaneity, if you wish? For it is evident that regardless of whether one traces property
back to the law, or whether one causes it to derive from labour or conquest, or whether,
finally, one is content to see in it an effect of individualism, of man’s tendencies towards
freedom and the fulfilment of his ambitions, none of these interpretations can justify, can
historically and economically legitimize property. Property exists, it asserts itself; it will,
I hope, always remain invincible: but it is no less true that
Chapter 1 Page 44
we do not know its nature; that property, like the federation to which it is connected, is
for us still no more than an empirical fact; that at the moment of writing all that we can
say about it with certainty is that, just as I argued more than twenty-two years ago, we
have failed to appreciate the profoundness underlying its establishment, that the
philosophy to explain it has yet to be created, and that our lucubrations, instead of
clarifying it, merely serve to throw it into disrepute. To which I would now add, with
regard to artistic and literary property, which certain incompetent advocates would like to
liken to property, that far from requiring, as a kind of counterfort, the creation of an
intellectual property, it has as its antithetical condition and guarantee precisely the
indivisibility of the world of the mind.
Here my opponents – jurists, economists, artists, and men of letters – persuaded as
they are by ignorance as much as by greed, will not fail to cry out in unison that I am
attacking property. According to these gentlemen, attacking property is when you prove
that from the sole fact of their production they do not hold such a right to [what they have
produced], and that the extension which they would venture to give to the concept of
property would be its own condemnation. This is a good way for them to enlist for their
cause the [holders of] landed property, who are always in a state of alarm anyway, and
who in fact have no greater enemies than these lamentable counterfeiters [of property].
I cannot think of a greater cause of shame for our age than this fear of an
unprejudiced examination, which betrays not so much respect for established institutions
as the hypocrisy of people’s consciences. What! I am attacking property, the right of
proprietors, simply because I am maintaining, contrary to the economists, who are
content to accept it as an article of faith, that it constitutes the greatest problem of the
social sciences – a problem which is all the more difficult that it seems to rest uniquely
on a principle which is condemned by the Gospel, namely on egoism! In that case one
would likewise be attacking God if one were to say that the demonstration of God’s
existence proposed by Clarke (*) does not prove this existence – something with which
the mystics themselves also agree – it would, then, be pyrrhonian (**) and nihilistic to
maintain that all arguments which one uses to try to prove the reality of matter and
movement beg the question and imply a contradiction; it would likewise be a blasphemy
against all morality and justice to make the observation that so far the only support these
have had lies in religion and faith, and that their rational basis has yet to be found! But
________
*) By the English philosopher Samuel Clarke in his Discourse concerning the Being and
Attributes of God, the Obligations of Natural Religion, and the Truth and Certainty of the
Christian Revelation, published in 1705.
**) Pyrrho (c.365-270 B.C.) was the founder of the philosophical tradition of
Scepticism.
Chapter 1 Page 45
then all science would become impossible, and so would all philosophy and all honest
politics.
Pascal, in his Pensées, starts off by humbling man, intending to exalt and glorify
him afterwards. Do people, then, argue that Pascal, in developing the theory of original
sin, is the enemy of God and the human race? It is effectively in this fashion that we
should treat property: we are forced to reject it if we just take into account the principle
and the grounds as they are handed down to us at school, but if we ascribe to it a reason
of a higher kind, then we can defend it by virtue of this reason, which will be revealed to
us sooner or later. And what better service can we do it, whilst waiting for the moment
when we will be allowed to contemplate it in its essence and in its finality than to extract
it from the banalities which compromise it? (1)
________
(1) The question of property, perhaps the greatest question of the nineteenth century,
given that it concerns equally law, politics, political economy, morality, and even
aesthetics, has for the last twenty-five years been a veritable stumbling-block for the
public and for the majority of writers: I would add that I myself haven’t been any more
successful than my colleagues, were it not for the fact that I at least have this advantage
over others – namely, that I can see the complication clearly and have a presentiment of
its solution. Some have imagined that all that was needed was a bit of simple common
sense in order to resolve a problem which embraces the whole of society, which for four
thousand years has resisted the analysis of philosophers, and whose principle has been
formally condemned by the wisest of men. Many persons have thrown themselves blindly
into this arena, each one claiming the honour of justifying the attacked institution and of
deserving the honours and rewards which the peoples of the world, anxious as they are in
their beliefs, never fail to award to their saviours. In the academies, from the public
tribunes, in schools and in the press, everywhere people have prided themselves on
having refuted the “sophist” – and what has been the result of all these fine refutations?
That the truth has slipped away; that doubts have spread to a more distressing extent than
ever before; and that property has entered a path of transformation which gives one
serious misgivings about whether it will last any further. It is not the fault of the
Authorities: they have multiplied their repression, their safeguards, asserting at the same
time their lofty dominion, without considering that property must subsist by itself, unless
it is to become a mere privilege and perish, and that if it is not sovereign, it is nothing at
all. It is thus that, imagining that this was the way to stem the danger, people have made
it even more imminent; it is thus that truth and right, ever since they have been propped
up by bayonets, are fading away.
As it is of the utmost importance, even for the establishment of right and truth,
that we should have a clear opinion about the state of this matter, with your permission I
shall summarize here, in a few lines, the course of my investigations, both into landed
property and literary property.
The jurists of the past said promptly that property had its principle
Chapter 1 Page 46
I hope the reader will forgive my vehemence, and that, hand on heart, he will tell
me whether, far from experiencing any alarm with regard to property, he does not rather
feel himself to be enlightened and reassured
________
in the right of the first occupant, and rejected every other hypothesis. The right of the first
occupant has as its corollary the act of conquest, by which a new occupant takes the place
of the original occupant, who is either defeated in battle or is incapable of defending
himself, and thus inherits his right. At a time when the right of force was not disputed by
anyone – at least in its normal application – when conquest was therefore, as the
conclusion of every regular battle, regarded as just, this origin of property could certainly
satisfy people’s minds; it was sacred. Other jurists came afterwards, men like
Montesquieu and Bossuet, who maintained that property derived its existence from the
law and therefore rejected the older theory. In our times the opinion of Bossuet and
Montesquieu, too, has appeared to be insufficient, and two new doctrines have emerged:
one which traces the right of property to the labour invested – that is the doctrine upheld
by M. Thiers in his book De la propriété [1848] – and another, which, going even further
back and considering even M. Thiers’s idea to be marred, imagines that it has grasped the
true reason of property in the human personality, and regards it as a manifestation of the
self, a prolongation of individual liberty. This is the opinion which has been adopted by
Messrs Cousin and F. Passy. I have no need to add that this opinion has seemed to the
adherents of Bossuet and Montesquieu and to those of M. Thiers alike as vain as it is
pretentious. Indeed, one can rightly ask: if it is man’s will, liberty, personality, his self
which make property, why isn’t everyone a proprietor then?...
The question was already there when I in my turn approached it. Carrying out an
analysis and a breakdown of all these theories, I demonstrated that they were all equally
false; that they could each be refuted by the same arguments, and that, moreover, each
one entailed a contradiction. I made it clear that the fact of occupation, for example, is
not a principle or a reason, and that it does not by itself create a right; – that if the right of
property does not result from this first fact, the subsequent fact of conquest or
dispossession of the weaker man by the stronger does not add anything to it; – that whilst
the legislator’s authority is certainly something that warrants great respect, and there can
be no question of seeking to disobey the law, what is required here is to justify the law
itself and to provide grounds for it; – that labour is indeed something sacred, but that the
right to which it gives rise does not go beyond that of a simple remuneration in
accordance with the economic formula: service in exchange for service, product for
product, value for value, but that it is by no means capable of conferring on a farmer, say,
the status of a proprietor; that if it were otherwise one would have to declare all farmers
to be proprietors and regard those who collect rents from estates which they do not attend
to themselves as parasites; – that the human self in its turn is certainly, like land, the
stuff of which property is made up, for the latter evidently presupposes two concepts: a
thing that has been appropriated and a subject who appropriates it; but that justificatory
reasons still have to be given, as do the conditions for such
Chapter 1 Page 47
by my arguments. Of course – I would say in my turn to M. Frédéric Passy – man, by
virtue of his personality, does tend towards appropriation, towards acquiring mastery
[domaine] over things; but this is just a tendency, and it is important to find out,
________
an appropriation, since without that any individual without possessions could intervene,
and, by virtue of the sovereignty of his own self, tell everyone else: “I too am a
proprietor”.
The view of Messrs Cousin and F. Passy, which ascribes to the self the ability to
create property, even has an unfavourable prejudice speaking against it. In the eyes of
every moralist, the self is odious; the Gospel condemns its full scope under the name of
concupiscence and regards it as the origin of sin. Everyone knows that the institution of
property was rejected in the ancient Church; that later, when morals had become laxer, it
seemed necessary to make this concession to the age, but that the pure doctrine was
preserved in the monasteries; and, finally, that when the Roman Empire in the West fell,
property was also caught up in this collapse, and that in its place and on top of its ruins,
under the dual influence of the Church and Germanic customs, that feudal regime was
introduced which was to be abolished altogether in 1789.
Now it is time to draw our conclusions. The Revolution put an end to the feudal
system and established, save for some slight modifications, [the principle of] ancient
Roman property in its place. But even though it did re-establish the latter, it failed to
provide a philosophy for it; we have the purview of the law, but we do not know what the
grounds for it are. Now, since in the period in which the Revolution has caused us to
enter institutions cannot exist other than on the basis of rationality, we can already see
how property, unexplained as ever, is shaking on its foundations, just as in the times of
Christ and the Roman emperors. Is it being threatened by a new catastrophe, and are we
going to pronounce ourselves, together with the primitive and communist Church, against
property? This is the question which is posed today by all those who, having understood
the criticism that has been made of this institution, observe how things are currently
developing and already see there all the symptoms of an imminent degradation of
property. Furthermore, the negation of property is in our times also upheld by a swarm of
people who are careful not to say it aloud, and of which some are in no doubt as to what
they are aiming at. I will just refer here to the blind supporters of centralization, to the
world of high finance, to the speculations of Saint-Simonism(*), which is the enemy of
the family and of liberty; the Church, which is eager to re-establish its convents and to
reconquer its lands; the absolutist and autocratic democracy [of Napoleon III], which
idolizes unity and is enraged by the merest shadow of federalism.(**)
My ideas on this matter are quite different. Being above all a man of freedom and individualism,
I do not think that having established, with a vehemence which did not really
deserve so many reproaches, the egoistical basis of property is sufficient reason for me to
forsake this institution. I simply say that there is material there for further investigations.
I am of the view that property, which to this day has been understood very poorly, if at
all, still remains to be organized, and that our civilization hasn’t yet reached the greatest
height of which it is capable. So it is upon full reflection, if not yet with a perfect
understanding of the cause, that instead of deducing, as the Church has in its moral
theology, as all the founders of religious orders and all communist sects have done, the
need for a suppression
___________
*) The phrase “le saint-simonisme agioteur” is perhaps an intentional irony on
Proudhon’s part, since in the 1790s Saint-Simon, the forerunner of French socialism,
made a small fortune by speculating in lands confiscated during the Revolution!
**) The federative principle, both in an economic and a political sense, was one of the
key tenets of Proudhon’s thought.
Chapter 1 Page 48
first of all, if this tendency derives from a just principle, as social justice would have it, or
from a principle that is inherently corrupt, as has been argued, from Minos onwards, by
Lycurgus, Pythagoras, and
________
of property, I have protested, ever since the publication of my first treatise [Qu'est-ce que
la propriété ?], against all forms of communism and feudalism; that I have vigorously
defended, in all my subsequent works, the principles of industrial liberty, of the family, of
heredity, of federation, and that I repeat at this very moment, with redoubled energy, in
the same voice and from the same pen, that I am against all kinds of privilege and
monopoly; that property, a concept which is essentially paradoxical, is a problem which it
is the Revolution’s task to resolve, an institution which Antiquity only half understood
and whose greatness is mysteriously revealed to us in its very abuse, jus utendi et jus
abutendi.(*) Today’s critics, with their customary impertinence, have not failed to see in
this restraint of mine a sign that I am contradicting myself and being inconsistent; they
accuse my conclusions of cowardice after having condemned the boldness of my
premises: what has not been written in this respect about my supposed predilection for
paradoxes and for making a fuss?! The [open] letters which are sent abroad from Paris
are still full of these accusations… Fortunately, the relevant documents for this case are
here for everyone to see, and daily experience confirms just how justified my deductions
are. As property gives way under the attacks of industrial feudalism and the absolutism of
power, society senses that it is dissolving; but at the same time it does not know what to
do, in order to hold on to and consolidate property. One might almost say – in view of the
relentlessness with which expropriations are carried out, in view of the capitalization
fever, the insolence of these agglomerations, the aggravation of taxes and mortgages –
that we are full of hate for property and that we have had enough of it!...
Amidst this controversy there emerges all of a sudden the hypothesis of a literary
property, that is, of a parcelling out of the intellectual world, similar to that which has
been done with the land. With regard to this I can only say, taking up my earlier
criticisms, 1º) that the example of landed property cannot be invoked as an analogy or
precedent, given that its institution is the result of considerations of an elevated order,
which are still insufficiently clarified but which everything tells us are inapplicable to the
things of the mind; 2º) that, whatever the hyper-economic reasons might be which have
determined the institution of landed property and which keep bringing it back, these
reasons could not be used to justify the creation of an intellectual property, since just as
much as the inert and passive earth seems to offer itself up for human domination, so the
world of the mind recoils from appropriation – this I will demonstrate in the second part
of this treatise; 3º) that this opposition between the physical world and the intellectual
world is such, from the point of view of property, that it would be sufficient to decree
intellectual property, as we hear being demanded now, for the lapse of landed property to
be decreed at the same time – this will be shown in the third part.
These are the essential features of my thoughts on this whole subject – thoughts
which are eminently conservative and of such a kind as surely to win people’s sympathy,
if
__________
*) These were two important concepts in Roman law: the owner of private property had
both jus utendi et jus abutendi, that is, the right to use or to destroy his property without
the State being able to prevent him. Cf. L. J. Strahilevitz, ‘The Right to Destroy’, Yale
Law Journal 114 (2005).
Chapter 1 Page 49
Plato, and all communists; and, secondly, what would be the conditions, the limits, the
order and final stage of this evolution? Is it at the stage of usage and usufruct that it is
meant to stop, or at the stage of possession, or at a long lease, or at the stage of property
even? For saying property necessarily means saying sovereignty at the same time. This
sovereignty of the individual in the face of the collective being, is it based on right, is it
social? Everyone can’t be a proprietor at the same time: who will be the chosen ones?
What compensation, what guarantee will be given to the rest?... Observe how
considerations taken from political economy are of no use here: one cannot invoke either
the interests of production or those of agriculture, since in all countries agricultural
production is most frequently performed by tenant-farmers, by share-croppers, and not by
proprietors. Lastly, one may rightly ask for which higher purpose, for which grand goal
has this lofty thought, which until now had remained obscured, been given to mankind? It
was an excess of property which led to Italy’s downfall, say those who have written on
the decadence of Rome: “Latifundia perdidere Italiam” (*); and yet here are people
assuring us that property entails even the right to abuse. How are all these things to be
reconciled? Can property be limited and still remain property? What will be its measure?
By which law will it be governed?... This is what
________
justice were something that one could find in our age, if it were not a fixed prejudice
amongst people to blame me for the scandal which certain ignorant phrasemongers have
kicked up about my critical analysis and about my formulations. But, then, there are
people – both in the party of the Reds and that of the Whites [i.e. Royalists], both
amongst the literary and artistic Bohemia and amongst the clergy – for whom any sort of
discussion is sacrilege. Property is for them one of those fetishes which are placed
beyond the reach of free examination and to which one is not allowed to apply the
methodical doubting of Descartes. “It is better to perish than to be instructed”, is the
motto of these Tartuffes. What cries would they not start uttering, if I were to announce
to them that, after having discussed property for some twenty-five years, I think that I
have finally discovered the theory for it, and that I hope to divulge it constantly!.. For
these people, speaking about property and its origins is the same as walking with a torch
in hand into a powder magazine: nay, what am I saying! It means to divert the public
away from their charlatanic rigmaroles and to warn people to keep their hands in their
pockets. That rogues who have become rich on speculation, on blackmail, thanks to wine-
glasses and self-promotion, should imagine that the police inspector is coming to get
them when they hear someone talk about property! I have yet to meet an honest
proprietor who harboured any of these fears! But these shady zealots may rest assured:
my criticisms are not denunciations. Their right comes under the Code Pénal, it does not
depend on any scientific reasoning. It is possible that one day they will have to account
for themselves in front of a court of summary jurisdiction; what is certain is that they
have no bone to pick with the right of property.
________
*) Pliny’s famous phrase about how the institution of latifundia (large estates), which
had to be worked by slave labour, led to the degeneration of the Roman spirit.
Chapter 1 Page 50
M. Frédéric Passy should have explained to us, but instead he replied with the most banal
of sophisms – that is an epithet which I gladly return to him – the sophism which consists
of replying to a question with another question.
Thus, these people who are pleading for the creation of a literary property after
the manner of landed property; who ostentatiously write on the top of their brochures
which are made by teams of four:(*) “We are economists, we are jurists, we are
philosophers!”, insinuating thereby that their opponents are simply just sophists; these
scholastic pedants, whose nonentity is a disgrace to their audience, they don’t even know
themselves what landed property, which they are now trying to persuade us to
counterfeit, actually is; they don’t know what its social function is; they are unable to
deduce its motives and causes. There are as many different opinions amongst them as
there are heads: their lack of logic exceeds even their presumptuousness; and if any
criticism sets itself the task of exposing the emptiness of their doctrines, all their response
consists of crying blasphemy! This detestable clique, as impure as it is absurd, which
posterity will blame for our contemporary mess and for the stultification of France!
I repeat again: this is not the right place to investigate by what considerations of a
social, political, or economic nature our civilization was led to this lofty institution of
property, which no philosophy has been able to explain yet and which nothing would be
able to destroy. This investigation is of no use for the question we are dealing with. I
assert, on the strength of the axiom pro nihilo nihil [‘nothing for nothing’] that it is not
for nothing that property was established, and that it has its reasons for existing in society
and history. Let the advocates of literary property, furious at not having been able to
demonstrate the legitimacy of the monopoly which they are demanding, let them now
attack landed property – let them do so if they dare: perhaps then I will take it upon
myself to defend the latter, thus showing one more time to these rhetors what it means to
be a sophist. For the time being it is sufficient for me to take cognizance of the existence
of property; to declare that I do not wish to encroach on it in any way, that, on the
contrary, in this discussion I am intending to avail myself of it, contenting myself with
maintaining that the existence of a landed property could never in any way serve to
legitimize the creation of an intellectual property; that neither the public domain, nor the
liberty of the individual, nor concern for
_________
*) Proudhon by this phrase (faites à quatre) is probably referring to how De la propriété
intellectuelle was the work of ‘a clique of four’: Modeste, Passy, Paillotet, and their
publisher Guillaumin) Explanatory note by Frédéric Rideau.
Chapter 1 Page 51
public welfare, nor the right of the producers, require such a guarantee; that, on the
contrary, all property and all rights would be in danger if one day the appropriation of the
mind happened to be instituted by sovereign decree.
There is no harm in repeating that the agriculturist’s right to the fruits he has
obtained through his work is one thing, and that property in the land, which society may
in addition have granted to him, is another. Possession of the product is entirely de jure,
but property in a piece of lands [fonds] is a bonus gift. I do not at all blame society for
having made use of this munificence; my impression is that it was guided by
considerations whose loftiness escapes us, and that if property has remained in a state of
imperfection, if the injustice with which we have sullied it ever since Roman times –
which taints were briefly mopped away by revolutionary right – seems to be threatening I
again; if this glorification of man and of the citizen has lost some of its influence and
prestige, the fault might very well lie in our own baseness and ignorance. I therefore
accept, in full hope and seeing in it a basis on which to build in the future, the institution
of property, simply reserving for myself the right to look once again for its reasons. Does
it, then, follow from this that right now we should ask the public authorities, so little
enlightened that they still are, to introduce a constitution which would make the
intellectual and moral domain in the likeness of the earthly domain? No, a thousand times
no! People’s temperaments have changed, the law which governs the mind is by no
means the same as that which governs matter. One might as well try to put birds of
paradise on the same diet as hyenas and jackals!
Besides, the supporters of literary property themselves don’t actually see it that
way. After having exhausted all the arguments in favour of their thesis, by one of those
contradictions which are so familiar to them, they reject the only condition under which
their chimera might become reality.
Let us remind ourselves that here it is not simply a question of securing for the
man of letters a fair remuneration for his product, but, rather, of creating in his favour, on
the basis of this product, a property analogous to that which is granted to the colonus, (*)
in supererogation to his harvest. So it is the common fund of production as such which
would have to be appropriated. Let us take an example.
Here we have Virgil, who, in a poem to which he dedicated eleven years of work,
sung the origins and ancient times of the Roman people. His Aeneid is in this vein, and, in
spite of its faults, it is a
_______
(*) Proudhon deliberately uses the French word colon ‘farmer, smallholder’, which is
derived from the Latin designation for a tenant farmer in the late Roman Empire, as will
become clear when he comes to talk about Virgil. The English word ‘colonist’ does not
quite convey the sense required here.
Chapter 1 Page 52
masterpiece such as you would be hard put to find three more like it in the history of
mankind. Of course, the work of this great poet is certainly worth that which is carried
out by the colonus, to whom the sovereign has graciously granted as a gift the field
cleared by him. Virgil tilled the field of Roman traditions; he made flowers and fruits
spring forth from a soil where until then there had only been brambles and nettles.
Augustus rewarded him for his efforts by heaping on him tokens of his generosity. But in
all this Augustus was doing no more than to simply pay a worker for his produce: so it is
left to us to create a property in the latter. Well, if we [or our ancestors] had done that,
here is what we would have: after Virgil’s death, after the Aeneid was saved from the
flames [which engulfed Rome under Nero], his heirs or assignees would have the
exclusive right to exploit this domain of tradition, that is to sing the feats of Evander,
Turnus, and Lavinia, to celebrate the heroes and glories of Rome. All counterfeiters and
plagiarists are strictly forbidden to write of Dido’s loves, to put Plato’s doctrine or
Numa’s religion into Latin verse, to reproduce the same fictions. Lucan would not be able
to publish the Pharsalia, as this would be an encroachment on the Virgilian domain, all
the more reprehensible given that Lucan, an enemy of the Emperor [Nero], speaks of
Pompey, of Cato, of Caesar – figures of whom a loyal subject would do well to avoid
speaking. Dante, too, would have to show restraint. Yes, he would be allowed to put
Christian theology into cantos and send the Guelfs, his enemies, to the devil. But his
descent to the underworld – which he even had the brazenness to undertake in the
company of Virgil – that is literary theft!
It is in this way that intellectual property could be established, in accordance with
analogies drawn from landed property and the tendencies of the feudal system. Under
feudalism everything was established, or tended to be established, as a privilege: the
Church alone had the right to define what was in keeping with true faith and to teach
religion; the University alone could teach theology, philosophy, law, and medicine: it had
the privilege of the four faculties, which it still has. The military profession was reserved
for the nobility; the magistracy had, little by little, become hereditary; the various
professional guilds were forbidden to encroach on one another and to infringe on the law
of speciality. When Louis XIV appointed Racine and Boileau as his historiographers,
perhaps he was not at all thinking of reserving, for them and their heirs, the privilege of
narrating his great exploits; but he could have done so according to the principles of our
age, which are those of M. de Lamartine. Is it not true that if a young poet decided to
publish a book of poetry entitled Méditations poétiques, M. de Lamartine would regard
him,
Chapter 1 Page 53
in his heart of hearts, as a thief of his personal style [voleur d’enseigne] – nay, worse than
that, as a vile counterfeiter? Messrs Frédéric Passy, Victor Modeste, and P. Paillottet
write the following significant words in their preface of their book: “We are economists”.
Is this not the same as if they were to cry to the public: “Watch out! Those who attack
literary property are incompetent – they are not economists, furnished with patents by the
Académie and published by Guillaumin. They are not entitled to speak!”
Well, these renowned economists, they recoil before the consequences of their
own principle, even if they are not very sure about it anyway, even if they themselves do
not know what they actually want.
«Ideas, says M. Laboulaye père, belong to those common things which it is as
impossible to appropriate as it is to appropriate the water of the oceans or the air in the
sky. I can make use of ideas which are in circulation, but I cannot turn them into my
property. The man who extracts salt from the sea, the miller who uses the air to make the
sails of his windmill rotate – they have managed to create for themselves a source of
private wealth [une richesse particulière]: but does this prevent anyone else from making
use of these inexhaustible resources, and just because the air belongs to everyone, does
everyone have the right to take possession of my windmill?»
This last phrase is a real somersault of logic! A windmill is a real estate property,
as a result of the appropriation of the land on which it was built; without that it would be
purely and simply a tool, a share of the miller’s capital. So the example cited by the jurist
and economist M. Laboulaye does not prove anything in support of intellectual property;
it proves the opposite. The same writer then adds:
«It is the same with a book, only with this difference: that a literary work can
never impoverish the common fund. Rather, it always enriches it. Bossuet has written a
Histoire universelle; Montesquie has published De l’esprit des lois – does that prevent
anyone else from writing another Universal History, from conceiving a new Spirit of the
Laws? What is there less of in the circulation of ideas [as a result of Bossuet’s and
Montesquieu’s works]?... Racine published Phaedra: this did not stop Pradon from using
the same subject, and yet no one accused him of counterfeit. Go ahead and write a history
of Napoleon, and make use of the material already researched by M. Thiers; but do not
reprint the text of his book, for that would be a material offence as visible as the theft of
the fruits which are growing on my field.»
When quoting an economist, one really ought to provide a line-by-line
commentary for all the sentences, so full of confusion and ambiguities are they! A book
cannot be compared to a windmill, since the former is a product which at the very most is
capable, after having been carried from the shop of
Chapter 1 Page 54
the bookseller into the scholar’s library, of being regarded as a share of capital; whereas a
windmill, erected on a piece of land, forms part of the appropriated estate – in other
words, it forms part of a property. – The literary work enriches the public domain [le
domaine commun], that is true; however, it does so not in contrast to other products, but
just like all the other products do. – Someone who steals the text of an author is guilty, no
doubt about that; but it is not the same kind of offence as that committed by someone
who steals the fruits which had been growing in the field of a proprietor, given that the
author’s text is the product of his labour, whereas the fruits which grown spontaneously
in a field are a bonus [bénéfice] acquired by the proprietor when he comes into ownership
of the land. Anyway, I will skip over these trifles, in order to concentrate on the principal
idea.
So according to M. Laboulaye, the intellectual domain, in contrast to the landed
domain, cannot be appropriated. Regardless of whether someone causes a mill to turn by
air, water, or steam, his mill will always belong to him; as for the idea itself of getting a
pair of millstones to turn not by the agency of human arms, but by the power supplied by
wind, water, or steam, this is an idea which cannot in itself be converted into property. It
is true that in this case we might be dealing with something which would qualify for an
inventor’s patent; but then we would again be coming back to the general situation of a
producer, who is remunerated for his work or discovery by a privilege of publication or
of temporary exploitation. With this proviso, the reasoning of M. Laboulaye remains
unassailable: if an invention has been acknowledged, it can give rise to a right of priority;
but it cannot serve to justify an institution of PROPERTY.
Would these gentlemen, the economists, jurists, and philosophers, be so kind then
to tell us what it is they are demanding and what it is that they are complaining about?
For, truly, it is impossible to understand them, and their claim has yet to be formulated in
adequate terms. If you listen to them, it seems you wouldn’t be able to find more resolute
opponents of monopolies: well, why don’t they stay true to their principles and stop
troubling the world with their silly harangues?!
Certainly, the earth has been parcelled out and appropriated, and even though the
theory of property still remains to be worked out, even though the problem has yet to be
resolved, landed property is nonetheless a fact of immense importance, which has taken
its place in the policy of nations and in individual relations – it is a fact which reason
rightly regards as something that has been established with higher designs in mind and
Chapter 1 Page 55
for some great purpose, even if these designs and this purpose still elude us.
Is it really necessary at this moment, when we are just taking our first steps in the
science of social organization, to rashly try to lay our hands on this organism whose
secret is still unknown to us, to mix up all our ideas, to move heaven and earth, and, for
the satisfaction of a few pedants, to leave the world in utter confusion and disorder? What
are the men of letters complaining about? Is their situation more unfortunate than that of
other producers? Landed property makes them jealous: well, then they should blame the
nature of things, for it is the latter which is alone responsible for this and which it would
be a good idea to try to understand first before condemning it. Or, even better, they
should just enjoy, together with everyone else, the progress that has been made so far,
whilst waiting for more light to be shed on the matter at some point in the future. After
the feudal regime was abolished in our country, the land, even though it cannot at present
be the property of all, is accessible to everyone. The servant, the factory worker, the
share-cropper, the woman selling salad vegetables, who goes up hill and down dale to
gather dandelions and corn salad, can all, if they save up their meagre wages, eventually
accumulate some savings, a capital sum, which money they can then convert into nice
landed property, allowing them to say in their turn: “I too am a proprietor!” Why should
the man of letters not be able to do the same? Change of ownership [mutation] is after all
a constant feature of property. But, please, let us not hear any more demands to transform
the remuneration which is due to writers into a perpetual usury. That would mean the
confusion of all principles and the subversion of the social order.
power to create a literary property.
Amongst those who have only offered a light opposition to the law that is being
drafted, some, caught up in this false analogy with landed property, have agreed that the
government has the power to create a literary property, just as it created a mineral
property and other types of property. This is an ill-considered concession which reflects
the chaos in which people’s minds are submerged.
Of course, the government has the power do what it likes, if by power one means
the ability to act no matter what, if we disregard the laws of nature and society. When a
government chooses to say: “I want to”, who can stop it, especially if public opinion
supports it?
Chapter 1 Page 56
However, it is something else if what we mean is that the government has the
power to do what it likes, but as long as it stays within the bounds of natural and
economic laws and the rules of justice.
Therefore, the government cannot cause what is simply a product, by virtue of its
nature and purpose, to be regarded as ESTATE [fonds] or property.
It cannot cause a contract of exchange to become a lease for perpetual rent, even
though the service or the goods which are exchanged can certainly be remunerated and
paid either by an annual wage or by a series of annuities.
It cannot cause the price of a product to be treated like a rent of farm [fermage].
Without violating the law of human relations and overthrowing all our concepts, it
cannot cause a writer, who casts his thoughts into circulation, to be regarded no longer as
a simple producer/ exchanger, but as an unredeemable sleeping partner [commanditaire
irremboursable], who, by virtue of this fact, would be entitled to receive hereditary
royalties [redevance] to the end of all time. The government does not have any more
power to do any of the aforesaid things as it has the power to parcel up the atmosphere,
start building on the oceans, produce without labour, and give government stocks to
everyone. If it did try to do these things, it would be to its own detriment; and general
ridicule and financial ruin would soon bring it round to the truth.
Society has been able, out of considerations which science has not yet clarified
sufficiently but which are not contested by anyone, to parcel out the land and to institute
a landed property; it has been able to do this, I must emphasize, even though this
appropriation, by the common consent of all jurists, is an added portion or extra [un
appoint] to the right of the cultivator; even though production and the exchange of wealth
do not strictly require such a concession; even though property does not exist amongst
numerous nations, where it is replaced by a simple right of possession. But for an
intellectual property to be possible, the government would have to be able to grant to the
writer, by way of a domain, the privilege to ideas which are general and to subjects of
investigation which make up the common fund of human intelligence. Now, it is
precisely this which it cannot do; it is this which common sense finds so repulsive; and
which no one is actually claiming anyway. So how, given that it has been forced to
abandon that analogy, would it be able to embellish with the name of property a simple
privilege of reproduction and sale, and this just for the sole purpose of creating a sinecure
for the writer’s heirs?
Chapter 1 Page 57
Boileau said in his epistle on the nobility:
But the descendant of Alfana and Bajardo,(*)
If it is no more than a nag, then it is simply sold second-hand.
Can the government cause the sons of men of genius to be geniuses like their
fathers? No. Well, in that case it should leave the descendants of genius to fend for
themselves: the fathers have been paid, nothing is due to their heirs.
_____
(*) Alfana and Bajardo are the names of two legendary horses in Ariosto’s Orlando
Furioso.
Translation by: Luis Sundkvist (pp.10-57)