---

26 translated pages

---

Chapter 1 Page 1

111

[...]

On the Nature of the Right of Authorship
considered from a general point of view

By M. André Morillot
deputy procurator at the Court of Appeal, Douai
      We wish to determine the nature of the right held by the author
over his work, whether the author be a writer or a musician, a painter
or a sculptor, a draughtsman, an industrial model-maker, or an inventor.
No question has been more controversial, and none remains so in doubt
today as this. I would add that there is none more important in
practical terms, since there is, for example, a huge gap between the
recognition of an authorial right of property, obviously primordial and
superior to any positive legislation, and the granting to the author of
a temporary monopoly or restriction of use. It is between these two
extreme terms that debate has raged, in Germany as in France.

_____________

[...]

---

Chapter 1 Page 2

112
      § 1. In our opinion, the right of authorship may not be considered
a form of property in the judicial sense of the term, for a very simple
reason which we are astonished to see contested or ignored by eminent
jurists.
      The right of property, which is only the relationship between a
person and a thing, necessarily supposes a person, who is its subject,
and a material thing, which is its object. Now in the matter of
intellectual works, this object is quite absent.
      For indeed we must distinguish between the work and the manuscript,
canvas, sketch or machine which is its sign. It would be a crude error
to confuse the work and its tangible manifestation. The work, like the
operation which produces it, is purely intellectual. It is gradually
refined in the mind of the author, until it is finally conceived by him
in a form that lends it an intensity of life and a trueness which is
superior to reality itself. From this moment, even though it is not yet
perceivable by the public gaze, the work is complete. It may remain this
way indefinitely without ceasing to exist, losing neither its reality
not its life. I will go further: even as the author, yielding to a natural
need for expression, labours to make the work perceivable to the public,
nothing is added to it; the work only loses by being expressed. The author
who means to translate his idea will never find a worthy form for it; the
thought will always remain superior to the expression. The more elevated
the conception, the greater will be the gap separating it from its material
representation. It is a common truth, proclaimed by the greatest of the
Latin poets, that the artist, even the artist of genius, can never quite
give to his work that admirable form his intelligence has dreamed of for
it. Matter, which is the sign of the work, will never adequate to the idea,
which alone constitutes the work itself; they are two mutually repulsive
and irreconcilable elements. Even where it appears most intimate, their
union is imperfect and factitious; aesthetic analysis always discerns the
idea as it caresses and brushes against the material, from which it frees
itself as from humiliating fetters, and which it proudly dominates. If this
is the case, the work is in and of itself intangible and inexpressible,

---

Chapter 1 Page 3

113
and may not exist outside of the intelligence which conceived it,
and which alone may contemplate it beneath the physical
characteristics it has been made to take on, by an entirely
intellectual operation. The operation which creates it is purely
spiritual. The operation whose aim and effect is to render the
work perceivable has only a secondary creativity; it necessarily
occurs after the first, without which it would be impossible; it
is entirely dependent upon this first operation and, strictly
speaking, adds nothing to it. Certainly, the second operation,
which takes matter and attempts to ply it to the image of the
idea, is also in part an operation of the mind; but it is not
creative in the absolute sense of the term; it is a subordinate
and incidental work of translation, always imperfect, subject to
the ‘more or less’, and, when repeated several times by the author,
may occur under many different forms, of which none is absolutely
identical to the others.
      What are we to conclude from this eminently immaterial
character of the work, and from this essential distinction between
matter and idea? We must conclude that the author cannot have
legal ownership of his work.
      1. This is entirely obvious as long as the work remains what
it is in essence, a pure idea, absolutely immaterial and invisible,
shut up within the intelligence of the author. To be the owner of
an idea would be to be at once person and thing, subject and
object of the same right, titleholder of a legal relationship whose
terms would be the same person; in short, one would be the owner
of oneself, which is legally impossible. The first, purely
intellectual operation, which leads to the creation of the idea,
is unable to establish a legal right of property in favour of the
author.
      2. It is no less incontestable that the author may not be the
legal owner of his work after it has been expressed. This second,
partly material operation, which leads to the expression of the
idea, does indeed establish a right of legal property in favour of
the author. But the object of this right of property is not the
work; the right applies exclusively to its material representation.
In these circumstances, the author is certainly the owner of his
manuscript, his canvas or his machine, since each of these things
is the result of a specific act which is proper to him,

---

Chapter 1 Page 4

114
and which constitutes a material object, essential for the institution
of a real right. Yet this material object is not the work, but merely
the sign of the work. For its part, the work remains what it was
before being made perceptible, that is, an essentially immaterial idea
which, always distinct from the material in which it is realised,
continues to be an integral part of the intelligence that conceived it.
Such an idea cannot serve as the object of a right or property, since
the law only recognises persons, material things, and relations, be it
between two different people, or between a person and a thing.
      This is the main reason that the right of authorship may not be
considered a right of property; almost all other arguments come back to
this one.
      II. Thus the object of the author’s right, in a word the work,
exhibits two indelible characteristics which are merely the consequences
of its immaterial nature, and which make it incompatible with a right of
property. These two characteristics are that the work cannot be
appropriated, and has no determinate position.
      1. It is a commonly held truth that the work cannot be assimilated.
      A. It is certainly the case that, for as long as the idea remains
invisible to all except the author, it may yield an intimate and
exclusive benefit. The idea does not simply belong to the author by a
legal right of property; it is the author, it is present in the beating
of this heart and the mysterious movements of his thoughts; but it his
not his legal property, that is to say, a material object, distinct from
him and thus able to be appropriated.
      B. Moreover, the impossibility of appropriating the work explodes
with undeniable obviousness in the sole case where it is worth observing,
that is, when the work is made perceptible to the eye by a material
representation. From this moment on, the de facto sovereignty held by
the author over his conception, previously invisible to all but himself,
expires. From this moment on, the public enter into possession of
something of which it is in no man’s power to deprive them. From this
day on, I may read the manuscript or the book, may view the painting or
sculpture, may sing or play the opera or symphony,

---

Chapter 1 Page 5

115
discover the secret of the machine, in short, fix indelibly in
my memory the characteristics of this representation of the work,
reproduce it in identical or somewhat different form in my
thoughts, in my conversation, for my own use or for that of my
friends. It should be recognized that no legislation has the power
to prevent me, once publication has occurred, from making multiple
uses of the work, from absorbing it, as it were, into my mind,
from making it in some sense for me what it was for its author
before it was published, that is, from making it an integral part
of myself. Never in their wildest dreams have authors sought to
forbid the public from making such extensive use of their works,
and for two reasons: firstly, because the very idea, should it
occur to anyone, would be fantastical and unrealisable, and
secondly, because such a purpose would be directly contrary to
the author’s aim in publishing his work, contrary to his dearest
intentions, which are to see his work sampled, appreciated,
assimilated by all possible means and in all possible forms by
the public, to widen awareness of his work amongst the public, to
take the public at once as confidant, pupil and judge; in this
matter in particular, by the very nature of things, the old maxim
"what is given may not be retained" ["donner et retenir ne vaut"]
is applicable.
      What does this mean, except that the work may not, at least
once it has been set down or published, be covered by any exclusive
and absolute right of use, since this faculty devolves automatically
to the public by the sole fact of the work’s being set down, and
certainly by the fact of its publication? We scarcely need observe
that this is entirely contrary to the characteristics required of
an object in order for it to be considered property. According to
article 544 of the Civil Code, which only expresses a commonplace
truth, property is the right to dispose of things absolutely. For
example, the owner of a field may reserve for himself the entire
sum that use of the field may procure, may cultivate it, plant it,
harvest its fruits, build on it, enclose it, in short prevent any
third party from making any kind of use of it whatsoever. This
character is essential to any object which may be considered
property. Now such a character is quite lacking in the object of
the right of authorship, which, once published,

---

Chapter 1 Page 6

116
cannot support this exclusive use. True, legislation grants the author
a certain privative right upon his work. But we know what this consists
in: we know that it is not an absolute right of exclusive use, but
merely a partial one, covering only a tiny part of the use which may
be drawn from the thing in question, and excluding all those uses of
which it would be unthinkable to deprive the public. What else may
we conclude, but that the work, or in other the words the idea, is
not and cannot be the subject of an absolute right of exclusive use,
and is not, therefore, property?
      2. The immaterial character of the work gives rise to another
fact which makes it abundantly clear that the work is not property:
the work, being intangible, impalpable, is not located anywhere.
Since it lacks material existence, even when successfully rendered
perceptible to the eye, it still retains the nature of pure thought
and may not be circumscribed in space. A thought is nowhere and
everywhere at once. This is entirely true of the intellectual work.
Certainly, the material object that makes it perceptible has itself
that position in space which is indispensable if a thing is to
constitute property. But, as we have already said, this object is
not the work, and what is true of the one is not true of the other.
It is by an ingenious and subtle fiction of positive law that we
manage to attribute to a work a nationality which, in its essence,
it does not have. Only with extreme difficulty and much fumbling has
the law succeeded in, if we may use the term, nationalizing the work,
seizing now upon the nationality of the author, and deducing from
it that of the work, now upon the place of publication, in order to
apply to the work the nationality of the country in which it appeared.
These two systems of indigenousness and territoriality, which are
constructed upon diametrically opposed principles, are the arbitrary
creations of positive law, whose aim it is to fix in space a work
which is by its very nature ubiquitous, and to impose a nationality
upon an idea which has none. It is now possible to predict the
moment when these legal fictions will have run their course,

---

Chapter 1 Page 7

117
and will disappear to make way for a judicial conception more in
accordance with the nature of the right of authorship. It is the
nature of this right to be everywhere applicable. Since real
rights and rights of obligation may only be exercised in the place
where the object or debtor is located, the right of authorship may
be usefully exercised everywhere, since it may be violated
anywhere. The object of the right having no location, the right
also has none, and it is by a considerable effort that we attribute
to it the nationality of the subject, or an even more arbitrary
nationality, that of the country in which the work is published.
This obvious character of the work, the second consequence of its
immaterial nature, demonstrates abundantly that it may not be
considered property. It is an elementary principle that this right
may not be imposed without a fixed, tangible item, clearly
delimited in space, and such an item is lacking in this case.
      III. Aside from these two characteristics that result directly
from the immaterial nature of the object of this right, there are
two others, less important it is true, but nevertheless quite
striking, which result from the manner in which the right of
authorship is exercised in almost all jurisdictions, and which
demonstrate that we are not dealing with property here. These two
characteristics, more contingent I confess, but whose necessity is
widely proclaimed, are that the right is temporary, and that, even
if it were hypothetically considered perpetual, it could still not
be exercised in a constant and sustained, self-identical way.
      1. It is yet another truism to state that property is
perpetual, that it does not and cannot die, and is in this respect
superior to the person who possesses it. It is transmitted
indefinitely from one person to another, immutable, self-identical,
in defiance of time. This is not an arbitrary, but rather a
universal and secular conception of the right of property.
      We know that the same is not true of the right of the writer,
the artist or the inventor. Quite apart from its very recent
appearance compared to that of property, which is almost as old
as humanity itself, it is well known that in all legislations,
except one, the right of authorship is temporary, and is expires
after a variable period has elapsed. This characteristic is
clearly repugnant to the right of property.

---

Chapter 1 Page 8

118
      A. “But,” the supporters of perpetuity interject, “this is a
genuine matter of principle. You are attempting to determine
whether the right of authorship is or is not a kind of property,
and in order to demonstrate the contrary, you adduce its non-
perpetuity. That is faulty reasoning. This perpetuity, which does
not exist at present, will exist in the future. In France, it has
twice come close to being recognised by legislation. The
commission established by the Emperor in 1861 to develop a proposed
law on the right of authorship had allowed a form of perpetual
literary and artistic property, changing after fifty years into a
simple right to receive royalties. Five years later, the legislative
commission charged with the examination of the proposal which became
the law of 11 July 1866, declared itself by a 5-4 majority in favour
of a system of perpetuity, which was nearly successful before the
Corps législatif. So if this system does not have the present on its
side, it certainly has the future. It is only because the
legislation has not yet attained its definitive form on this point
that it has yet to enshrine this principle. But all modern laws,
manifestly leaning towards the extension of the period of protection,
naturally tend towards perpetuity. This being the case, we may not
adduce the temporary, fleeting and contingent nature of the right,
in order to deduce the nature of the right itself. Perhaps tomorrow,
perpetuity having been instated, its adversaries will have to
conclude that the right to which it is applied represents a genuine
form of property.”
      B. Unless I am mistaken, this objection is not decisive.
      (a.) Is it really possible to believe that a perpetual right of
authorship will ever be recognised by the European legislatures? We
would answer strongly in the negative. We are forced to acknowledge
that such perpetuity does not exist and has never existed, so that,
finding no arguments in the present or in the past, we are forced to
search for them in the future. The right is not perpetual, they sat,
but is clearly on the way to becoming so. This is, in our opinion,
a most extravagant assertion which the facts do not support. I am
well aware of the example of the 1861 and 1866 commissions; but this
example, which is moreover isolated, does not provide the proof that
is sometimes claimed.

---

Chapter 1 Page 9

119
For what is the final result of this show of arms on the part of the
supporters of perpetuity? Nothing, absolutely nothing, or indeed a
serious blow to the credibility of their own doctrine. If the
commission of 1866, adopting the ideas of its predecessor, pronounced
itself by a 5-4 majority in favour of the principle of perpetuity, it
was unable to find a practical means whereby this system might be
introduced into the legislation, some favouring a system of perpetuity
in terms of the common right, others adopting a system based on property
with perpetual royalties. The result of this division within the
majority was that M. Perras, the chairman, was counted in the minority.
He expressly allied himself with the system of temporary rights with
special regulations, and his report contains a complete refutation of
the property-based system which, according to him, exists neither
before nor after publication. It is in this state that the question
reached the Corps législatif, where the chairman’s theory carried the
day, despite all the efforts of its adversaries. The doctrine of
property in common law terms was rejected, as was that of perpetual
royalties, and the law, while declaring that the question remained
undecided in principle, nevertheless resolved the matter most neatly
in an implicit way, by deliberately avoiding the use of the expression
'literary property'.
      It is therefore correct to say that if, in France, the theory of
literary or artistic property still has numerous supporters, this theory
has so far been condemned by the legislature. The law rejects this
system like the phrase which corresponds to it, though both persist in
our legal language and literature, which are thus in a state of
unfortunate contradiction with the law itself.
      It is not only in France that the principle of perpetuity has
been rejected, but in Germany as well, where the laws of 11 June 1870
and of 9 and 11 January 1876 granted the author a temporary right for
which the designation ‘property’ was carefully avoided. In Italy, too,
the law of 25 June 1865 rejected the perpetuity system, even restricted
to the imposition of perpetual royalties, and refused to employ the
term 'literary property'.

---

Chapter 1 Page 10

120
Finally, while making use of the phrase as a piece of established usage,
more recent legislation such as that of Norway takes care to point out
that the term must not be understood in a legal sense.
      Only one law may be found, that of Mexico, which has adopted a
perpetual right of authorship, describing the right in question as a form
of property. But this is a unique example that can hardly stand up against
very recent laws such as those of Germany and Norway, which, when required
to give a name to the right of authorship, explicitly reject the term
‘property’, and the corresponding theory.
      If this is the case, what is to be made of the assertion that all
legislatures are manifestly heading towards the introduction of a perpetuity-
based system? Is the truth not the contrary, and how can one draw proof of
a putative principle, like that of property, from something which does not
exist, like perpetuity?
      (b.) But let us suppose for just a moment that our adversaries are
correct, and that legislation is heading towards perpetuity, the essential
attribute of the right of property of which the work would be the object.
Have we appreciated the consequences of this reform? When we speech of
intellectual works, it is not simply a question of work of art, but also of
more humble products which are nevertheless of the same nature, such as
drawings, industrial models and inventions. We shall see later on that
these works may exhibit differences in their importance and their dignity,
but not in their nature. They are all by the same right pure intellectual
creations, to which all the above reasoning may be applied. If this is the case,

---

Chapter 1 Page 11

121
the treatment of one may not differ from the treatment of any other, and
if the right of the poet or artist is perpetual, then by necessity that
of the draughtsman, industrial modeller, and inventor must be so too. In
the system which eschews perpetuity, it is well understood that the
duration of protection ought to be determined by the degree of importance
and the worth of the work, and by the special necessities of the type of
remuneration available in each case. This can no longer be understood in
the perpetuity system, which, if applied with exactitude, must regulate
all intellectual works without distinction, since perpetuity may not,
unlike its opposite, be curtailed or extended.
      Now this is a consequence which causes even the most determined
proponent of perpetuity to retreat. It would certainly be nice to declare
the right of the writer or the artist to be perpetual; but it is
nevertheless clear how absurd this declaration would be when applied to
the inventor, and especially to the draughtsman or industrial modeller,
whose work is generally intended to satisfy the capricious requirements
of fashion and thus requires only the shortest period of protection. One
understands the impossibility of speaking in favour of such a perpetual
right for the draughtsman or the inventor; the first of these at least
asks for no such thing, and if the second were granted his request, an
insurmountable obstacle would be put in the way of industrial progress.
No efforts are spared, therefore, in escaping from this argument by
analogy. Most notably, it is claimed, in order to justify the temporary
nature of the inventor’s right, that his work is less elevated, less
personal and less useful than that of the artist, that he nevertheless
demands from the public authorities a stricter protection, and that it
is therefore only fair that the restriction placed upon free commerce in
his favour should not be extended indefinitely. It is hardly necessary
to explain the weakness of this reasoning, which is in any cases partly
inapplicable to drawings and models whose nature is nevertheless
identical to that of works of art and inventions. If the author’s right
is a right of property, and should as such be perpetual, what difference
does it make if the work which is the object of that right is a little
more or a little less expressive of the personality of its author? What
matters is that the work has a sufficiently pronounced element of
personality to deserve the name of ‘a work’, and that quality alone
suffices to make it the object of a right exercised by the author.

---

Chapter 1 Page 12

122
If, then, that right is a right of property, how could it not be
perpetual? Similarly, what difference does it make if the work is
more or less useful to the public? Is it not obvious that all
intellectual works are useful to the public, and that in this respect
no difference of degree may be drawn between them? If this is the
case, is the extent of the right based on the degree of utility of
the work, and if the right exists, is the inventor to be deprived
of it on the vain pretext that his work is not as useful to society
as the artist’s? And again, what difference does it make that the
inventor’s right of exclusive use is more extensive than that of the
artist? Are we really to declare that one sort of work is not
property because it lends itself more readily to appropriation, and
declare the opposite for a work which lends itself only with great
difficulty to a very limited exploitation? Finally, what difference
does it make if the granting of indefinite protection to the inventor
has the effect of placing an indefinite restriction on free commerce?
Would this not also be the result if perpetual protection were
granted to the artist? And why should we reject in one case what we
accept in the other? If the author has a right to indefinite protection,
how are we to distinguish between the various categories of authors,
and in the name of what principle would we expropriate some of them
after a certain time, while leaving others exempt? In truth, such
reasoning cannot withstand investigation.
      We must then resign ourselves, and accept or reject absolutely
the consequences of the proposed principle. It would be far too
convenient to apply the perpetuity system to works of art, while short-
changing drawings, models and inventions, in such a way as to draw
contradictory conclusions from identical principles. There is in the
mere statement of this kind of reasoning something ludicrous, which
is on its own sufficient to convince us to reject perpetuity: the
truth is that this putative principle is no more applicable to literary
works than it is to industrial ones. Here is what we must think of
that progressive march, slow but sure, towards perpetuity.
      2. Finally, supposing even momentarily that perpetuity might be
possible, under what conditions would this be?

---

Chapter 1 Page 13

123
Would it be perpetuity in the terms of common law? The answer is no,
needless to say. This extravagant doctrine of intellectual property,
a claque of land property, has never found and will never find
defenders among jurists. Even those who are in favour of perpetuity
admit that the right originally conceded to the author, whatever form
it took and whatever name it bore at the outset, could not persist
indefinitely in the same form. They allow without difficulty that
the exclusive right of the author, decorated for the time being with
the name of ‘property’, transforms after a certain time into a simple
royalty. This result is justified by the claim that from its inception,
the right of the author exists in opposition to a certain social right
which is very difficult to qualify, but which is defined for want of
a better phrase by the observation that it starts out exceedingly weak,
yet acquires more force every day, contrary to and at the expense of
the author’s right, which it ultimately equals and surpasses, or even
eliminates altogether. This bastardised perpetuity, which we are
energetically assured is inoffensive, is the only sort whose
introduction is demanded. Now, to propose this middle term is still
amply to admit that in this case, we are not dealing with a genuine form
of property. Who ever heard, for instance, of the right of property
over a field being subject to a natural and compulsory degeneration,
of such a right wearing out and dwindling by the simple fact of its
existing and being exercised? What kind of perpetual right is it that
persists only by changing its nature, strength and name? How could we
tolerate this act of spoliation perpetrated by society, which recognises
the author’s right of property only to violate it in the most audacious
manner possible? By admitting the necessity, or even the possibility
that what we have called a right of property might be transformed in
this way, do we not recognise that we are only really dealing with a
special right granted by society, which measures and dispenses it at
will, and which in granting such an act of concession reserves the right,
as it were, to reduce it, and even to end it entirely?
      The right of an author over his work is thus not a right of property.

---

Chapter 1 Page 14

124
§ 2. What is it then? The question is complicated, and the phrase ‘right
of authorship’ incorporates in its wider sense two rights which are of
unequal importance, and which are quite different in nature. The main
difficulty in this matter lies in the duality of the right itself, and
in the complexity of the term used to describe it. Hence the peculiar
differences of opinion which occur around the question, one man having
in mind something different from the object alluded to by another. In
the entire topic of the right of authorship, nothing is more capital
than the distinction which follows, since the condition of any exact
definition is to understand perfectly what we are defining:
      I. To begin with, it is certain that the author has full moral
sovereignty over his work, not only before, but also after its publication.
      1. This is incontestable if we consider the time before publication,
during or after the purely intellectual operation which leads to the
conception of the work. It is clear that at this time, the author is not
the owner, but the absolute master of his work. Here it is manifestly
the case that no third party, however much he may wish to, may infringe
upon this mastery. There is a whole series of intellectual events, a
whole sequence of purely internal operations of which others are unaware.
The right that an author has over his work at this moment is so intimate
that it becomes truly indistinguishable from his faculty of thought. It
is not even a genuine right, the law having neither the power nor the
wish to regulate thoughts and sentiments known only to the man who
conceives and experiences them. This is a pure faculty, whose independent
and sovereign exercise belongs to the author, and which does not need to
be guaranteed by a law, since it is immune to the attacks of others. We
are not in the sphere of law here, but in that of consciousness, and the
law is no more able to regulate this faculty than it is to confer it or
destroy it.
      2. This situation, which is purely moral, is modified by the setting
down and publication of the work. In setting down his work in a form
whereby it may be seen by the public, and even more so in publishing it,
the author in some sense makes of his work an extension of his person,
rendering it vulnerable to those attacks with which it was not threatened
before. And since

---

Chapter 1 Page 15

125
it is a legal principle, superior to all positive legislation, that
the personal liberty of every man should be protected against the
outrages which might be inflicted upon it, the public authorities are
required to intervene in order to see that the author is respected.
Here, we leave the sphere of consciousness and enter that of the law.
If for example the work has been set down so it may be seen, but has
not yet been published, and a third party should seize the work and
publish it against the author’s will or intentions, there is in this
act a violent and unfair attack upon the author’s person [personnalité],
a genuine infringement of his liberty, a palpable moral injury for
which he may demand reparation. The same would be true if, the work
having been published once by the author, a third party were to
attempt to print it again under his own name, robbing the writer or
artist of the glory to which he alone has the right to pretend. No
outrage concerns the person more directly than plagiarism; the violent
attack constituted by this theft of glory may even be said to affect
the author more severely than counterfeiting; for the latter may, as
we shall see later, affect only the pecuniary interest of the author,
leaving his literary, artistic or professional person intact. Similarly,
if a third party, even one authorised by the author to publish his
work, were to present the work only in a faulty or inaccurate version,
there would be in this case too a genuine offence against the author’s
person. This offence may very well be committed after his death, since,
by a wonderful privilege, the author survives in his works, as in his
heirs. It would be up to those heirs, who continue his legal person,
to take the matter in hand, and to obtain reparation for the posthumous
offence. In a word, the setting down and publication of a work, far
from breaking or relaxing the bond which exists between it and the
author, rather extend it, so to speak, by expanding the person of the
author. The work which has been set down or published does not
consequently lose its immaterial quality; like the body which casts a
shadow, or the object which creates an image, the work remains distinct
from its material realisation, and continues to be a part of the
intelligence that conceived it.
      Thus, like that intelligence, the work is necessarily inviolable.

---

Chapter 1 Page 16

126
The author who publishes his work enriches society, but does not
impoverish himself in so doing; he does not relinquish his conception,
and could not relinquish it if he chose; he fixes it in one of the
thousand forms it might take on, in order that others might apprehend
it, and in order to keep it alive in his own eyes; in short, he
remains himself and does not mutilate himself in setting down or
publishing his work. But the author’s setting down and publishing a
work, in so far as it exposes that work, as an extension of himself,
to attacks to which it was previously invulnerable, procures for his
benefit the right to prevent or punish such attacks. We are no longer
dealing with a simple faculty, but with a genuine legal right, whose
origin we must seek in the general principle of supreme, universal
justice which forbids us to wrong others, and obliges us to repair the
harm we have voluntarily caused. It is not necessary that this right
be consecrated by any special text, as it may be sufficiently inferred
from the general terms of article 1382 of the Civil Code. It has
existed for the author’s benefit since someone first took up pen or
paintbrush; the origin of this actio injuriarum dates back to time
immemorial; for as long as literature has existed, plagiarism has been
the object of general contempt, and for as long as there have been laws,
laws have been required to punish it. This right is not subject to any
condition of time or place, nor to any restrictive formality of positive
law; it is born spontaneously, necessarily, for the author’s benefit,
from the moment of setting down or publication. This is a purely moral
right; it is not remotely pecuniary and does not count as part of his
wealth, since its exclusive purpose is to protect his person, from
which it is moreover wholly inseparable. This union is so intimate,
that we are forced to ask ourselves whether the author could relinquish
his right, even by an act of his own free will; in any case, without
such an express act (which would moreover be difficult to comprehend)
he would certainly retain the right, even if he had ceded his exclusive
right of reproduction.
      Such is, in short, the right of obligation which is born for the
benefit of the author from the setting down or publication of a work,
and which in the most general way allows the author’s person to be
respected, and prevents or punishes any attack which might be directed
against him, whatever form such attacks may take.

---

Chapter 1 Page 17

127
      II. Alongside this entirely moral right, which is the creation of
natural law, there exists another, the creation of positive law, which
is called the exclusive right of reproduction.
      While they share close links, which sometimes give rise to confusion,
these two rights are nevertheless absolutely distinct. In support of this
distinction, we may offer a preliminary proof: one may be violated,
while the other remains intact. Thus the publication of my work by a third
party may affect my person, without causing me a pecuniary loss, if for
instance the publication were to occur after the expiration of my
exclusive right, but had the effect of attributing my work to someone other
than me, or offered only a faulty or inexact representation of it. And
vice versa, the publication might infringe upon my wealth, without
affecting my person even remotely, if for example it were to be made
during the period of my exclusive right, but under my name and in conformity
with another publication made by me, at the same time. It is thus wrong
in our opinion to follow certain German jurists such as Neustetel,
Bluntschli, Dambach and Dahn in considering the exclusive right as an
integral part of the purely personal and moral right belonging to the
artist. We believe with Klostermann that, far from being assimilable,
these rights will always remain absolutely distinct.
      Their characters are moreover sufficient to distinguish them. While
the first is entirely moral, the second is entirely pecuniary. What is
more, the actions which are available as sanctions in each case are
different. The action intended to enforce observance of the first

---

Chapter 1 Page 18

128
right tends only to protect the literary, artistic or professional person
of the author against the attacks to which it might fall victim; the
action which guaranteed the second tends on the contrary only to safeguard
or to increase the wealth of the author. The first is a right over the
work, the second a right over copies of the work, which is quite different.
      This distinction is fundamental; we might say that it dominates the
entire question of the right of authorship, and that it must necessarily
be accepted by all legislations. It is therefore important to justify it,
by considering in more detail the origin and the judicial nature of the
exclusive right of reproduction, which is in truth the only genuine right
of authorship, when the phrase ‘right of authorship’ is understood not in
its widest but in its narrowest sense. It is to this right indeed, and to
this right alone, that the special laws in question apply, the moral right
of the author being, as we have seen, governed by general principles in
the legislation.
      We have said that the origin of this exclusive right is essentially
to be found in positive law.
      1. What is the state of things arising from the publication of a work?
It is such that, from this moment on, the assimilation, that is to say, the
reproduction of the work in large part and in many different forms, is not
only possible, but necessary from the point of view of third parties. We
know that in being published, the work necessarily escapes almost completely
from the domination of the author.
      2. I would add that this is not merely a brutal and violent fact,
which all the reasoning and all the legislation in the world would be
powerless to prevent, but rather the exercise by third parties of a sacred
natural right.
      It is a truism to state that man in made to live in society. This
invincible sociable instinct manifests itself in a series of natural
inclinations, which are simply its diverse forms.
      Amid all these instincts, there is none which is more widespread, or
more efficacious as far as sociability is concerned, than the instinct of
imitation. Man continuously imitates what he sees before him. This includes
not only ideas and sentiments, which adopt a precise form, but even
gestures, external actions and objects which perpetually give rise to acts

---

Chapter 1 Page 19

129
of necessary plagiarism. This simian disposition can be observed at
all the degrees of the ladder of being, in animals as in man; it
is evident in a naïve form in children, whose changeable and
sensitive nature is constantly affected by impressions coming from
the outside world, and whose entire existence is in truth comprised
of successive borrowings, both physical and moral in nature.
Education is nothing other than the methodical and rational
exploitation of this natural faculty. Thus, in a broad sense,
counterfeiting is the law of the world, and each of us lives by
borrowing from his neighbour. The exchange and reciprocal absorption
of ideas are constantly at work, and operate with prodigious
rapidity. It is only in this way that intellectual and moral
communion becomes possible, and without this, society would never
appear. Imagine for a moment the opposite sentiment, every man
turning in upon himself, shutting himself into the egoistic and
jealous sentiment of his personality as if in an impregnable
fortress: society disappears. It is on the contrary this perpetual
need for imitation which lends consistency to our morality and
prevents it from being swept aside with each new generation, which
in short permits humanity to march towards its goal with the sure,
measured stride of progress, all men being by their nature the
citizens of one and the same homeland, the world, and carrying
each within him what seems like a spark sprung from the same hearth.
      3. If this is the case, the work which has been published by
the author will serve, not only de facto but also de jure, as the
theme of all manner of imitation, total or partial, slavish or free,
perfect or imperfect; and he who imitates his fellow man may not be
compared to a thief.
      But there is more, and it is entirely correct to say that
imitation in itself causes the author neither moral injury nor direct
pecuniary damage.
      A. I will say first of all that imitation does not cause him any
moral injury. Certain cases exist, as we know, in which it constitutes
an unjust act of aggression upon the person of the author, if for
example a work is published against his will, or under another
person’s name, or in such a way as to offer only a faulty or inexact
representation of the work. The reproduction is in these instances
illicit, according to the principles of natural law, not as a
reproduction, and

---

Chapter 1 Page 20

130
not because it infringes a natural right of reproduction belonging to
the author, but simply because in light of the particular circumstances,
of the contingent conditions under which it occurs, it violates the
consciousness of the author. But this is not the most frequent case.
We know that more often than not, reproduction inflicts no moral
injury upon the author, that it leaves his consciousness and his person
absolutely intact, and that, far from going against his intentions,
it conforms to his dearest wishes. In all these hypothetical cases,
it is impossible to say that the reproduction infringes an exclusive
right of reproduction belonging naturally to the author, and the
argument by analogy cited above vanishes.
      B. Just as reproduction in itself, excluding exceptional
circumstances, causes the author no moral harm, it may also be said
to cause him no direct pecuniary damage. First of all, the work does
not form part of the author’s fortune; it is not therefore subtracted
from that fortune by imitation, any more than it is added to the
counterfeiter’s by the same process. This is a preliminary reason
which prevents imitation being considered as the misappropriation of
another person’s property, and thus being equated with theft. But one
may go further, and affirm that imitation does not alter the author’s
pecuniary position. Just as the latter does not impoverish himself by
publishing his work, he is not deprived when third parties copy the
reproduction of the work which he has given. Even if the work were
to be published and copied indefinitely, it would not cease to abide
in the author’s intelligence, and no person could ever force it to
quit this inviolable and sacred refuge. The truth is that the
reproduction of a work by others may cause the author indirect pecuniary
damage, by causing him to miss out on a chance to make a profit, or by
allowing him to realise only a smaller profit than he had hoped. The
work, being immaterial and distinct from the author’s fortune, may not
be assigned a monetary value. It may only have, and often does have,
important financial consequences. Thanks to it, the author or a third
party may realise a considerable profit, by reproducing it in various
forms and, in particular, through certain techniques of relatively
recent invention, whereby anyone may repeat

---

Chapter 1 Page 21

131
almost indefinitely, inexpensively, with little labour, extraordinarily
rapidly and with mechanical precision, a manual operation which, when
executed for the first time by the author, required large expenditure,
considerable effort, much time and many fruitless attempts. This is the
exact truth. Once the work is published, third parties, by means of an
imaginative faculty and aided by astonishing scientific techniques,
have the material means to repeat the author’s creative operation, and
thus to share in a profit which the author wishes to reserve to himself
exclusively.
      In doing so, do they commit an act resembling a theft, or even a
dishonest action? By no means, unless the particular circumstances
surrounding their action constitute an unjust aggression against the
consciousness of the author. They are merely exercising a faculty with
which they are naturally equipped; in and of itself, this universally
recognisable exercise, however disagreeable or irritating it may be to
the author, is legitimate, and in the domain of trade and industry,
represents free competition.
      To claim the contrary and grant the author not a right of property
over his work, but even a natural exclusive right to reproduce it, would
be as we have seen to deprive man of one of his essential attributes.
      4. This is the consequence of publication, not simply de facto, but
de jure. Though legal, it nevertheless remains very hard.
      A. Still, it has existed for centuries, and no author has ever thought
to complain about it. We do of course find monuments of ancient literature
which denounce and even punish plagiarism, that is, reproductions which
constitute a genuine insult for the author.
      But what we fail to notice is that nothing similar has ever existed
concerning third party reproductions whose effect is not to deprive the
author of the glory to which he alone may pretend.
      It is true that in the past, the labour required to obtain a
reproduction, and especially a reproduction of an artistic or industrial
work, was tiresome, slow, and expensive for third parties, and closely
resembled the labour which had been required

---

Chapter 1 Page 22

132
of the author for the first representation of the work. Counterfeiters
were thus less tempted to undertake an operation which supposed genuine
skill on the author’s part, and which did not offer the compensation
of a substantial guaranteed profit in a short space of time. On the
other hand and by the same token, the author did not have a particular
interest in obtaining an exclusive right to reproduce his work, since
the threat of forgery was limited, and since in any case forgeries did
not cause him any special harm. This is not to say that counterfeiting
was never fruitful for third parties and harmful to authors, especially
in the case of written works, which have always been reproducible
without the difficulties I have just suggested. It is well know what
huge profits could be made in the book trade in Athens and Rome, and
without going so far back in history, we know the importance of the
licensed copyists, supervised by the University, in France before the
invention of printing. It would thus be a grave error to suggest that
the exercise of an exclusive right of reproduction only became lucrative
after the discovery of printing. But the profit of which the author
found himself deprived by counterfeiting was ultimately insufficient to
provoke a revolution in public opinion, the public being accustomed to
regard the reproduction of intellectual works as legitimate.
      B. Things changed with the discovery of the printing press, and
especially with the discovery, almost in our lifetime, of other techniques
which allowed individuals of wholly inferior artistic abilities, or even
mere speculators, to make all forms of counterfeiting extremely lucrative.
The extreme ease of reproductions produced a massive increase in the
profit which could be made on a work, such that the lure of a considerable
profit which was both easy and certain acted for third parties as a
singular incentive to commit acts of counterfeiting, and for the author
as a reason to seek to monopolise the right of reproduction, now so
fruitful, for his own use. Once he had started down this slippery slope,
the author became accustomed to give in exchange for money what he once
gave gratis, and accustomed to observing

---

Chapter 1 Page 23

133
that it was only just that each man should live by his profession, the
artist by his art as the priest by the altar. At the same time, he
contrived to protect his work from imitation by others, in order to
profit from it as completely as possible, for as long as possible.
Numerous great fortunes have thus been rapidly created by authors, and
this sudden revolution increased their vanity by as much as it decreased
their former nobility. Indeed, the invasion of the mercantile spirit it
is one of the most active causes of degeneration in the arts and letters,
since a tariff is now established in advance, with commercial precision,
for each line of the author, each brushstroke of the painter, since the
value of a book or painting is now almost measured by the weight of the
paper or the dimension of the canvas, and since what used to be called
literature or art is now reduced to the level of a trade. It must be
said in defence of this tendency that the temptation was very strong,
and moreover that the behaviour of third parties, though legal, was
nonetheless a crying abuse. It was difficult to tolerate that the profit
from a work should instantly be monopolised by speculators, whose
opulence made an insolent contrast with the poverty of the author, and
who, if they had not stolen from the latter, had nevertheless grown rich
in his place.
      C. It was thus that we came most naturally and justly to introduce
new rules of positive law, whose aim was to change the state of affairs,
so unfavourable to the author, whereby all were permitted to reproduce a
work in any form once it had been published, and the state of the law,
which considered such reproductions legitimate. To improve the legal
condition of the author, it was necessary to limit that of other parties,
by declaring that the imitative faculty or right of reproduction which
had hitherto been exercised without hindrance, would henceforth be subject
to certain restrictions.
      We know that it would have been unthinkable to forbid the exercise of
this faculty absolutely, and to make it the exclusive monopoly of the author.
      What the law was able to do, and what it did, was to restrict the
natural liberty of third parties as much as was necessary to allow the author
to draw a reasonable profit from his work. The law was able to forbid

---

Chapter 1 Page 24

134
third parties from making certain particularly lucrative kinds of
reproduction, reserving for the author the exclusive ability to
take advantage of such methods for his own benefit; in short,
certain reproductions were forbidden while others remained entirely
legitimate. The prohibited reproductions are, it goes without
saying, above all those slavish reproductions which require of their
author almost no creative intellectual expenditure, and those which
cause pecuniary damage to the original author. Other forms of
reproduction, and especially those which do not prevent the author
from realising a profit, remain permitted, at least in principle.
The object of this exclusive right is, then, not the work itself,
but the copy, that is to say, the form that the author has given
his work, and only when that form may be lucratively reproduced.
And the right of the author consists not in the right to reproduce
his work, since this right is naturally his simply by virtue of his
being a human being, but rather in the right to forbid other men,
for a certain time and to a certain extent, from making use of that
same faculty. It is impossible to express more clearly than by this
definition, whose terms are in our opinion incontestable, and which
is in any case already widespread in German doctrine, that the
exclusive right of the author is merely a monopoly, and consists
in a temporary restriction placed by positive law on the natural
liberty of a third party.
      D. Nothing is more controversial, and yet nothing is more obvious
in our eyes. No other demonstration is required to prove the existence
of this monopoly, than the restricted character evidenced by the
author’s exclusive right. We know that this right is entirely relative,
both in its nature, and in terms of it subject and object.
      It is relative in its nature, first of all, since it is temporary,
at least at the moment, and since even in the opinion of those who wish
to make it perpetual, it could never be exactly the same, but would
always remain subject to transformation and successive degenerations.
      It is relative in terms of it subject, since it does not and could
never belong with the same fullness and the same

---

Chapter 1 Page 25

135
duration to the draughtsman, to the industrial modeller, to the inventor,
writer, musician and artist.
      Finally, it is relative in terms of its object, since the prohibition
does not and could never extend to all the forms of reproduction to which
a work might be subject, but only to certain of those forms, and
especially to lucrative, total and slavish reproductions.
      Who can deny that the relative character of this right forbids us
from considering it a natural right? Such a right would necessarily be
absolute: firstly in its nature, since it would be perpetual and non-perishable;
in terms of its subject, since it would be exercised by all authors with the
same fullness; and finally in terms of its object, since it would apply to
all the reproductions to which a work might be subjected. It would be absurd
to talk of a natural, exclusive right of reproduction, which would be doomed
to expire or change its form after a certain number of years, which would
belong fully to certain authors and only partially to certain others, and
whose only effect would be to forbid certain kinds of reproduction among all
those to which the work might be subjected.
      And yet this relative character is entirely indelible. Even if we were
to allow that, in the near or distant future, this right were to become fully
perpetual, it is still certain that it could never be exercised in identical
conditions by all authors, nor could it be applied to all the possible forms
of assimilation to which the work might be subjected. Finally, even if we
were to set aside the unlikelihood of this event and imagine for a moment that
the right should become absolute in terms of its subject, it is clear that it
could never be so in terms of its object, since there exists an entire range
of reproductions which, by the very nature of things, not to mention the will
of the author, must necessarily be considered legitimate. The eternally
relative character of the object of this right is on its own sufficient to
demonstrate that that right is not a natural right. One cannot imagine a
natural right of reproduction belonging to the author whose only effect would
be to forbid certain lucrative reproductions, which may be very important in
pecuniary terms, but which are ultimately nothing when compared with all the
kinds of reproduction to which the work is subject. If the author had

---

Chapter 1 Page 26

136
a natural and exclusive right of reproduction, that right would be absolute,
and would be infringed by any third-party reproduction, even if that
reproduction could not produce a profit, were partial, or even disguised.
For slavish and total reproduction, which deprives the author a material
gain, may well inflict more serious injury to his right: but it is identical
to the other forms, in that, like them, it violates the author’s right, if
that right belongs to him naturally. It is not possible to distinguish
between violations of the law, and one injustice is worth another.
      If, then, the very nature of things prevents us from considering that
this right is absolute in terms of its object, it must be concluded that we
are not dealing with a natural right of the first order, but with a simple
and equitable concession granted by positive law. The irregularities,
variations and restrictions which this right exhibits in terms of its nature,
its subject, and its object, the relative and contingent characteristics
with which it is indelibly imbued, prove that this is not a positive right.
It would be just as impossible to explain these characteristics as the result
of the successive spoliations of the positive law, claiming that the law had
taken an originally absolute right and left hardly any of it standing, as
it would be to attribute them to the explicit renunciation or tacit consent
of authors. There is no historical trace of such things. The hypothesis of a
legal spoliation goes against the clearly favourable character of the various
laws which constitute the right of authorship, and the idea of a tacit
renunciation by authors of the right to prevent reproductions which do not
cause them pecuniary damage is contradicted by the fact that many
reproductions which do have that effect remain permitted. Are we really to
believe, furthermore, that the inventor, for example, tacitly consents to
exercise a potentially indefinite and lucrative natural right of reproduction
for a period of fifteen years only?
      From all of the above, we must conlude that the exclusive right of the
author may only be considered a privilege granted by positive legislation.
                                                                                    André MORILLOT



Translation by: Andrew Counter