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Compleat World Copyright Website Jane C. Ginsburg * A Tale of Two
Copyrights: Literary Property in Revolutionary
Tulane Law Review, 64 (5),
May 1990, 991-1031 |
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The French and * Associate Professor of
Law, Thanks to my colleagues
George Bermann, Richard Briffault,
Henry P. Monaghan, and Peter Strauss, and to Professor John Merryman,
This Article is based on a
presentation made at the Library of Congress Symposium on Publishing and
Readership in Revolutionary France and Editor’s note: It is with
great pleasure that the Tulane Law Review publishes this piece on
revolutionary copyright law in our May 1990 issue, at the time of the
bicentennial of the 1. The reports to the revolutionary parliaments of Le Chapelier, see Le Moniteur Universel, Jan. 15, 1791, reprinted in 7 RÉIMPRESSION DE L’ANCIEN MONITEUR 113, 116-18 (1860) [hereinafter Report of Le Chapelier], and of Lakanal, see Le Moniteur Universel, July 21, 1793, reprinted in 17 RÉIMPRESSI0N DE L’ANCIEN MONITEUR, supra, at 169, 176 [hereinafter Report of Lakanal], usually furnish the leading evidence for these kinds of assertions. As discussed infra subpart III (A), these sources in fact prompt quite different conclusions. 991 ing French copyright scholar states that one of the
“fundamental ideas” of the revolutionary copyright laws is the principle that
“an exclusive right is conferred on authors because their property is the most
justified since it flows from their intellectual creation”. [2] By contrast, the
U.S. Constitution’s copyright clause, [3] echoing the English Statute of Anne,
[4] makes the public’s interest equal, if not superior, to the author’s. This clause authorizes the establishment of
exclusive rights of authors as a means to maximize production of and access to
intellectual creations.5 Pursuing this comparison, one might observe that
post-revolutionary French laws and theorists portray the existence of an
intimate and almost sacred bond between authors and their works as the source
of a strong literary and artistic property right. [6] Thus, By contrast, Anglo-American exponents of copyright law
and policy often have viewed the author’s right grudgingly. One of copyright’s reluctant advocates, Lord
Macaulay, labeled the 2. C. COLOMBET, PROPRIÉTÉ LITÉRAIRE ET ARTISTIQUE 8 (4th ed. 1988). All translations are mine, unless otherwise indicated. 3. 4. Statute of Anne, 1710, 8 Anne, ch. 19. 5. 6. See, e.g., Law of Mar. 11, 1957, No. 57-298, art. 1, 1957 Dalloz, Legislation [D.L.] 102, Juris-Classeur Périodique [J.C.P.] No. 31, 22030; Portalis, Speech to Chamber of Peers (May 25, 1839), quoted in P. RECHT, LE DROIT D’AUTEuR, UNE NOUVELLE FORME DE PROPRIETE 49 (1969) (authors’ rights in their works are not only “property by appropriation, but property by nature, by essence, by entirety, by the indivisibility of the object from the subject”); LAMARTINE, On Literary Property, Report to the Chamber of Deputies, 1841, in 8 OEUVRES COMPLETES 394, 405 (Paris 1842) (“the very nature of this property, entirely personal, entirely moral, entirely united with the creator’s thought”). 7. H. DESBOIS, LE DROIT D’AUTEUR EN FRANCE 538 (3d ed. 1978) (describing 1957 French copyright law); see also Monta, supra note 5, at 178 (the text of the 1957 French law “sounds like the proclamation of the rights of men. These are obviously proclaimed to be natural rights independent of statute…”) 992 institution
of copyright as “exceedingly bad,” [8] but was willing to tolerate it as the
means to promote the dissemination of socially useful works. [9] In this view,
copyright should afford authors control no greater than strictly necessary to
induce the author to perform his part of the social exchange. [10] Conceptions of French copyright law as author-oriented
and of Anglo-American copyright law as society-oriented carry certain
corollaries. In general, one may
anticipate that the more author-centered the system, the more protective the
copyright regime will be. [11] And the extent of this author-centrism
will promote some interests over others. For example, some argue that the different
foci of the systems account for the active protection of authors’ noneconomic moral rights to receive attribution for and
preserve the artistic integrity of their creations in France, and for the
traditional paucity of such safeguards in the U.S. [12] Similarly, the French perspective will
encompass most comfortably works of discernible literary or artistic content,
[13] while the U.S. emphasis on social utility may explain its historically
vigorous copyright coverage of works such as compilations conveying much
information but little subjective authorial contribution, [14] as well as its
present receptivity to computer pro- 8. 1 C. MACAULAY, Speech to House of Commons, Feb. 5, 1841, in THE WORKS OF LORD MACAULAY: SPEECHES, POEMS, & MISCELLANEOUS WRITINGS 667 (1898). 9. 10. For a modern American exposition of this view, see Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 350-51 (1970). 11. Cf B. KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT 22-25 (1967) (as English authors perceived themselves more as original creators and less as imitative craftsmen, they began to assert more claims over their works; the scope of copyright protection accordingly expanded to cover not only exact copies, but partial copies and adaptations). 12. See, e.g., DaSilva,
Droit Moral and the Amoral Copyright: A Comparison of Artists’ Rights in France and the United
States, 28 BULL. COPYRIGHT
Soc’y 1, 5
1-56 (1980) (comparison of the French droit
d’auteur to American copyright); Kwall, Copyright and the Moral Right: Is an American
Marriage Possible?, 38 VAND. L. REV. 1, 9-16 (1985)
(comparison of artistic protection in the 13. See, e.g., C. CARREAU, MERITE ET DRorr D’AUTEUR (1981); Desjeux, Logiciel, jeux vidéo, et droit d’auteur, EXPERTISES, Nov. 1984, at 277; cf Dillenz, Qu’est-ce que le droit d’auteur et pourquoi l’appliquons-nous?, 59 IL DIRITTO DI AUTORE 349, 356 (1988) (“Who could truly assert, for example, that an advertising jingle, the instructions for a board game or a sample of wall paper belong to the ‘most sacred and most personal of properties,’ as I.e Chapelier [proponent of the first revolutionary copyright law] did not hesitate to assert respecting works forming the subject matter of copyright?”). 14. See, e.g., Ladd v. Oxnard, 75 F. 703, 731 (C.C.D. Mass. 1896) (protecting book of credit ratings and financial standings of stone dealers and manufacturers in U.S. and [Canada); Brightley v. Littleton, 37 F. 103, 104 (C.C.E.D. Pa. 1888) (sustaining copyright protection of blank forms); Emerson v. Davies, 8 F. Cas. 615, 619-20 (C.C.D. Mass. 1845) (No. 4436) (holding arithmetic book copyrightable).] HHC: [bracketed] displayed on p. 994 of original. 993 gram
protection. Another consequence of different copyright conceptions
pertains to the role of formalities. Formalities
are state-imposed conditions on the existence or exercise of copyright. If copyright is essentially a governmental
incentive program, many formal prerequisites may accompany the grant. For example, requiring the author to affix a
notice of copyright, or to register and deposit copies of the work with a
government agency, before the right will be recognized or enforced is fully
consistent with a public-benefit view of copyright. But these requirements clash with a
characterization of copyright as springing from the creative act. If copyright is born with the work, then no
further state action should be necessary to confer the right; the sole relevant
act is the work’s creation. Despite these paradigms, the differences between the 15. The present differences between the systems are
fast becoming muted. In 1985 On the HHC: [bracketed] displayed on p. 995 of original. 994 ventional portrayal, the French revolutionary laws did not
articulate or implement a conception of copyright substantially different from
that of the regimes across the Channel and across the This Article examines the rhetoric and policies of the
first French and 16. Cf S. RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886-1996, at 5-6 & n.1 1 (1987) (quoting J. K.ASE, COPYRIGHT THOUGHT IN CONTINENTAL EUROPE 8 (1971)): It will be seen that both these [French revolutionary] laws placed authors’ rights on a more elevated basis than the [English] Act of Anne had done. There was a conscious philosophical basis to the French laws that saw the rights protected as being embodied in natural law. Accordingly, the laws were simply according formal recognition to what was already inherent in the “very nature of things.” 17. See generally C. Hesse, Res Publicata:
The Printed Word in 18. See, e.g., Mass. Act of Mar. 17, 1783, reprinted in COPYRIGHT ENACTMENTS OF THE UNITED STATES, 1783-1906, COPYRIGHT OFFICE BULLETIN No. 3, at 11 (1906) [hereinafter COPYRIGHT OFF. BULL. No. 3]. Pierre Recht suggests that a key phrase of this law’s preamble was taken up by the reporter of the 1791 French law. P. RECHT, supra note 6, at 26. 995 turn to
the parliamentary speeches and texts of the French 1791 and 1793 decrees. Finally, I consider the French court
decisions through 1814 construing the revolutionary copyright laws. This examination will demonstrate that the
principles and goals underlying the revolutionary French copyright regime were
far closer to their This study stops at the end of the Napoleonic era,
substantially before the development of personalist
doctrines, such as moral rights, by French copyright scholars and courts. These doctrines did provoke theoretical and
practical divergences between the French and First, in addition to the inherent interest the
subject of comparative eighteenth-century copyright may hold, there is some
value to setting the historical record straight. Second, historical accuracy may promote future
legislative harmonization; now that increasing 19. These doctrines emerged surprisingly late, at the end of the 19th and beginning of the 20th centuries. See generally, P. RECHT, supra note 6. 996
II. COPYRIGHT BEFORE 1791 (MODELS AVAILABLE TO FRENCH REVOLUTIONARY
LEGISLATORS) Since the late Renaissance the French Crown regulated
the publishing industry; publishing monopolies were an offshoot of royal
censorship. The author, or more often,
the publisher or bookseller, applied for permission to publish the work and
sought the privilege of holding the exclusive right of its publication. [20] Under the edicts of
1777-78, the Crown afforded printing privileges to both authors and printers. The author’s privilege was perpetual, but once
ceded to the publisher, or if initially acquired by the publisher, it lasted
only during the life of the author. [21] By the end of the ancien
régime, much rhetoric proclaiming the sanctity and self-evidence of
exclusive literary property rights had infiltrated the copyright debate, most
of it propounded by publishers invoking authors’ rights for the publishers’
benefit, [22] some of it by government advocates invoking authors’ rights to
curb publishers’ assertions. [23] The system of printing privileges was conditioned upon
compliance with formalities: deposit of copies in national libraries, inclusion
of the text of the privilege in each printed copy, and registration of copies
with the publishers’ guild. [24] Remedies afforded by the privilege included
injunctions and damages, as well as seizure, confiscation, and destruction of
infringing copies. [25] In addition to controlling the right to publish the
work, 20. On regulation of publishing under the ancien régime, see generally M.-C. DOCK, ETUDE SUR LE DROIT
D’AUTEUR (1963); H. FALK, LES PRIVILÈGES DE LIBRAIRIE SUR L’ANCIEN RÉGIME (1906
& photo. reprint 1970); E. LABOULAYE
& G. GUIFFREY, LA PROPRIÉTÉ LITTÉRAIRE
AU XVIIIE SIÈCLE (Paris 1859);
M.-F. MALAPERT, HISTOIRE ABREGEE DE LA LEGISLATION SUR LA PROPRIETE LITTÉRAIRE
AVANT 1789 (1881); Birn, The Profits of Ideas: Privileges en librairie in Eighteenth-Century 21. Edict of Aug. 30, 1777, on Privileges arts. 4, 5, reprinted in E.
LABOULAYE & G. GUIFFREY, supra
note 20, at 143, 145 [hereinafter Edict on Privileges]. 22. See, e.g., the 1777 petition of the
advocate Cochu on behalf of the 23. See Procés-Verbal 24. Edict on Privileges, supra note 21, at 143-47. 25. See Edict of Aug. 30, 1777, on Infringement, reprinted in E. LABOULAYE & G. GUIFFREY, supra note 20, at 147-50. 997 the Crown
also regulated rights of public performance of dramatic works by vesting in the
Comédie Française
the exclusive right to perform such works. [26]
2. The Late The United States Constitution, drafted in 1787, and
available in 26. On the rights of dramatic authors and the Comédie Française under
the ancient régime, see, e.g., J. BONCOMPAIN, AUTEURS ET COMEDIENS AU XVIIIE SIÈCLE (1976); 3.
BONNASSIES, LES AUTEURS
DRAMATIQUES ET LA COMEDIE FRANÇAISE AUX
XVIIE ET XVIIIE SIÈCLES (1874
& photo. reprint 1970). 27. Statute of Anne, 1710, 8 Anne, ch. 19. 28. 29. 30. 31. 32. Id §
I 33. 34. 998 the
Constitution declares “Congress shall have Power… to promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries”. [35] Later authorities
have claimed that this phrasing subordinates the author’s interests to the
public benefit. For example, a report
accompanying Congress 1909 general revision of the copyright law construes the
Constitutional intent as follows: Not primarily for the benefit of the author, but primarily for the
benefit of the public, such rights are given. Not that any particular class of citizens,
however worthy, may benefit, but because the policy is believed to be for the
benefit of the great body of people, in that it will stimulate writing and invention to give some bonus to
authors and inventors. [36] Sources chronologically closer to the Constitution,
however, treat the private and public interests more even-handedly. While records from the Constitutional
Convention concerning the copyright clause are extremely sparse, a document dated
August 18, 1787, notes that the proposed legislative powers were submitted to
the Committee of Detail: “To secure to literary authors their copy rights for a
limited time. To
encourage by proper premiums and provisions the advancement of useful knowledge
and discoveries”. [37] The referral to the Committee of Detail
thus sets forth the authors’ property interest (“their copy rights”) and the
public interest in advancement of knowledge as separate considerations of equal
weight. Similarly, in The Federalist
Papers, Sources shortly predating the Constitution also
indicate 35. 36. H.R. REP. No. 2222, supra note 3, quoted in A. LATMAN, R. G0RMAN & J. GINSBURG, COPYRIGHT FOR THE NINETIES 14 (3d ed. 1989). For an exposition of the varying interpretations permitted by the constitutional text, see L. PATTERSON, supra note 34, at 195-96. 37. 1 DOCUMENTS
ILLUSTRATIVE OF THE FORMATION OF THE 38. THE
FEDERALIST No. 43, at 279 (3. 999 American acknowledgement of authors’ personal claims
in addition to utilitarian motivations. Before enactment of the Constitution,
protection of literary property was a matter for the states. In his essay Origin of the Copy-Right Laws
in the United States, Noah Webster recounted the dire state of American
education in 1782 and his resulting efforts to persuade state legislatures to
protect publications. [39] “[Shchool-books
were scarce and hardly obtainable,” Webster recalled.” [40] Having himself “compiled two small
elementary books for teaching the English language,” [41] he set off to Every attempt of this nature undoubtedly merits the encouragement of the public; because it is by such attempts that systems of education are gradually perfected in every country, and the elements of knowledge rendered more easy to be acquired. Men of industry or of talents in any way, have a right to the property of their productions; and it encourages invention and improvement to secure it to them by certain laws, as has been practiced in European countries with advantage and success. And it is my opinion that it can be of no evil consequence to the state, and may be of benefit to it, to vest, by a law, the sole right of publishing and vending such works in the authors of them. [42] While stressing the manifold benefits to public
instruction flowing from protecting authors, Webster’s fellow copyright lobbyists
also invoked, on behalf of authors, the general Lockean
principle that a property right arises out of one’s labors. This mixed argumentation also emerges in the
state copyright statutes that followed from both Webster’s efforts and the next
year’s 39. N. WEBSTER, Origin of the Copy-Right Laws in the United States, in A COLLECTION OF PAPERS ON POLITICAL, LITERARY AND MORAL SUBJECTS 173 (N.Y. 1843 & B. Franklin ed. photo. reprint 1968). The reader might conclude from Webster’s account that he was virtually single-handedly responsible for the enactment of copyright laws, not only by the states before 1790, but also by Congress in 1831. 40. 41. 42. 1000 Continental Congress resolution encouraging the thirteen states to pass
copyright laws. [43] For example, the preamble to the Massachusetts
Act of March 17, 1783, first announced a public benefit rationale drawn from
the English precedent, but then stated: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves; and as such security is one of the natural rights of all men, there being no property more peculiarly a man’s own than that which is procured by the labor of his mind. [44] The first 43. See “Resolution passed by the colonial Congress, Recommending the several States to secure to the Authors or Publishers of New Books the Copyright of such Books,” May 2, 1783, reprinted in COPYRIGHT OFF. BULL. No. 3, supra note 18, at 11. 44. Mass. Act of Mar. 17, 1783, reprinted in COPYRIGHT
OFF. BULL. No. 3, supra note
18, at 14; see also N.H. Act of Nov. 7, 1783, reprinted in COPYRIGHT
OFF. BULL. No. 3, supra
note 18, at 18-19; R.I. Act of Dec. 1783, reprinted in COPYRIGHT OFF. BULL. No. 3, supra note 18, at 19-20. The organization of the Whereas it is perfectly agreeable to the principles of natural equity and justice, that every author should be secured in receiving the profits that may arise from the sale of his works, and such security may encourage men of learning and genius to publish their writings; which may do honor to their country, and service to mankind. Conn. Act of Jan. 1783, reprinted
in COPYRIGHT OFF. BULL. No. 3,
supra note 18, at 11. For wording that closely resembles that of the
45. Act of May 31, 1790, 1 Stat. 124. 1001 the
author was still living. [46] The Act imposed the formalities of
registration and deposit of copies, together with affixation of a notice of
copyright, as prerequisites to protection. [47] Remedies included forfeiture of
infringing copies and damages. [48]
C. For What
Kinds of Works Was Anglo-American Copyright Sought or Litigated? The works generating the subject matter of copyright
deposits and claims reflect the general universe of late eighteenth-century
American publications. Perhaps not suprisingly for a young republic, instructive,
civics-oriented works dominate the publishing catalogues. For example, examination of the 5368
publications (including newspapers and pamplets)
listed in the 1790-92 and 1798-99 volumes of Charles Evans’s American Bibliography
indicates that republican publishing habits corresponded to the “new
republican ideology [that] defin[ed]
the virtuous citizen as one who was broadly informed about political doctrine
and public affairs.” [49] Evans’s
records for these years show 540 newspapers (157 newspapers for 1790-92, 383
for 1798-99), 441 titles in Political Science (207 for 1790-92, 234 for 1798-99),
302 titles in History (117 for 1790-92, 185 for 1798-99), 270 titles in Social
Science (125 for 1790-92, 145 for 1798-99), and 61 Fourth of July orations for
1798-99. By contrast, the publication of
novels appears fairly modest: 43 titles for 1790-92 and 119 for 1798-99. [50] This relative
paucity of fiction also may 46. 47. 48. Act of May 31, 1790, 1 Stat. 124, § 2. Neither the English nor the 49. Brown, Afterword:
From Cohesion to Competition, in PRINTING
AND SOCIETY IN EARLY 50. The classifications are those of Evans. 8 C. EVANS, AMERICAN BIBLIOGRAPHY 414,
416-20 (1941) (covering 1790-92); 12 id. at
389-91, 294-97 (1942) (covering 1798-99). For
general bibliographical information concerning late 18th-century publishing in English authors wrote much
of the fiction; the titles published in the U.S. in 1790-92 included three
editions of Defoe’s Robinson Crusoe; two each of Fielding’s Toni
Jones and [Joseph Andrews; three of
Goldsmith’s Vicar of Wakefield; and one each of Richardson’s Pamela,
Clarissa Harlow, and Sir Charles Grandison. See 8 C. EVANS, supra, at 416-17. None of these could have been copyrighted in
the HHC: [bracketed] displayed on p. 1003 of original. 1002 reflect
republican values. Thomas Jefferson
stated, “A great obstacle to good education is the inordinate passion prevalent
for novels, and the time lost in that reading which should be instructively
employed”. [51] A review of the copyright records casts light on the
smaller universe of works of actual or perceived economic value [52] and allows
comparison of government policy in enacting the copyright incentive to the
kinds of works for which authors and publishers in fact accepted the
government’s offer. Copyright practice
apparently met policy goals - copyright was sought for the socially useful,
instructive works that Congress had intended to encourage. Petitions to Congress before enactment of the first
copyright statute sought exclusive privileges for works overwhelmingly
instructional in character. For example,
on May 12, 1789, Jedediah Morse petitioned for
exclusive rights in The American Geography, or a View of the present
Situation of the 51. 15 T. JEFFERSON, THE WRITINGS OF THOMAS JEFFERSON 166 (1903), quoted in FEDERAL COPYRIGHT RECORDS 1790-1800 xxii (J. Gilreath ed. 1987). 52. Tebbel notes the
“rather small” proportion of copyright registrations (556) to books published
(13,000 titles recorded in Charles Evans’s American Bibliography) during
the first nine years of the federal statute. J. TEBBEL,
supra note 44, at 142. Tebbel
concludes: “Obviously, the idea and opportunity of copyright were not grasped
by everyone overnight.” 53. See Proceedings in Congress During the Years
1789 and 1790, Relating to the First Patent and Copyright Laws, 223. PAT. OFF. SOC’Y 243, 247-49 (1940) (reproducing the text of the petitions). Morse’s work became the first to be deposited
for federal copyright pursuant to the 1790 statute in the state of 1003 closes a
preponderance of useful, instructional texts in deposits made pursuant to the
first federal copyright statute. [54] For example, of eighty copyright
deposits recorded from 1790 through 1792 in 54. FEDERAL
COPYRIGHT RECORDS 1790-1800, supra note 51; see also Goff The First Decade of the
Federal Act for Copyright, 1790-1800, in ESSAYS HONORING LAWRENCE C. WROTH, supra note 50, at 101, 103
(pointing out preponderance of textbooks in early copyright registrations). 55. Of 69 titles on the English language published during 1790 to 1792, 23 were by Webster. 8 C. EVANS, supra note 50, at 415. 56. J. TEBBEL, supra note 44, at 142. Webster himself reaped the benefits both of
his efforts to promote copyright and of
nationalism. His spelling book “was
a revolt against… everything the British grammars represented. Webster’s spelling, usage and pronunciations
were American. Its sales were
phenomenal; only the Bible has ever surpassed it to this day [1972]”. 57. These works are catalogued as Nos. 265 and 267 in FEDERAL COPYRIGHT RECORDS 1790-18 10, supra note 51, at 74. I have taken the title of Webster’s work from entry No. 23050 in Evans’s American Bibliography. See 8 C. EVANS, supra note 50, at 103. 1004 reserved
to quarrels over informational and similar works. A leading study has cited no copyright
decisions before 1791, and only two lower court decisions [58] between that
time and the U.S. Supreme Court’s first copyright decision, Wheaton v.
Peters, [59] in
1834. [60] Both
lower court cases concerned compliance with federal copyright formalities. Both also concerned works more of utility and
of laborious compilation than of imagination - in one, a “federal calculator,” and in the other, a Pharmacopoeia of the
III. THE FRENCH ENACTMENTS OF 1791 TO 1793 While traditional comparisons of French to Anglo-Ameri- 58. Ewer v. Coxe, 8 F. Cas.
917 (C.C.E.D. Pa. 1824) (No. 4584) and Nichols v. Ruggles,
3 Day 145 ( 59. 33 60. I have found two other federal copyright
decisions predating 61. Useful works also predominate in English
copyright decisions predating the French
revolutionary laws. See, e.g.,
Trusler v. In reading the cases in the Reports for the last hundred years, you cannot overlook the literary insignificance of the contending volumes. The big authors and big books stand majestically on one side - the combatants are all small fry. The question of literary larceny is chiefly illustrated by disputes between bookmakers and rival proprietors of works of reference, sea charts, Patteson’s “Roads,” the antiquities of Magna Graecia, rival encyclopaedias, gazetteers, guide books, cookery books, law reports, post office and trade directories, illustrated catalogues of furniture, statistical returns, French and German dictionaries, Poole’s farce, “Who’s Who?” [and] Brewer’s “Guide to Science.” A. BIRRELL,
SEVEN LECTURES ON THE LAW AND HISTORY OF COPYRIGHT IN BOOKS 170-71 (1899). 1005 can
copyright law assert that In the 1791 decree, the author’s concerns do not
occupy center stage. The report on the
1791 decree arose in a dispute between dramatists and the Comédie
Française -
the latter once the beneficiary of the exclusive right to produce
theatrical works, the former once effectively indentured to the only approved
theater. The decree’s main goal was to
proclaim the right of all citizens to open their own theaters and to produce
plays, as the decree’s first article states. Authors’ rights are an adjunct to this
freedom; just as any citizen may be a theatrical producer, so may any living
author (or one dead for up to five years) be produced anywhere he wishes to be
produced and only where he wishes to be produced. Plays by authors dead
over five years are declared part of the public domain. The decree thus was designed to break the Comédie Française’s monopoly
on the works of Corneille, Moliere, and Racine. [62] Seen in its overall context, the
decree’s recognition of authors’ rights principally was a means to terminate
that monopoly. It bears emphasis that the authors’ rights are hardly
ascendant. The reporter, Le Chapelier, is often quoted as a great exponent of author-oriented
rationales for copyright. But almost
invariably, the passage quoted is taken out of context. [63] 62. The Comédiens had indicated their willingness to relinquish monopoly rights in the works of living authors, but invoked the principle of nonretroactivity of new laws to insist on their continuing rights in long-deceased playwrights, such as those mentioned in the text (who, not incidentally, constituted the core of the repertory). See Report of Le Chapelier, supra note 1, at 116. 63. See, e.g., M.-C. DOCK, supra note 20, at 152; A. FRANÇON, C0URS DE PROPRIÉTÉ LITTÉRAIRE, ARTISTIQUE ET INDUSTRIELLE 15-16 (1980); E. POVILLET, TRAITÉ THÉORIQUE ET PRATIQUE DE LA PROPRIÉTÉ LITTÉRAIRE ET ARTISTIQUE 26 n. 1 (3d ed. 1908). Pouillet
may have relied on several earlier treatise writers, whose incomplete
quotations from Le Chapelier supply apparent evidence
for an author-oriented concept of copyright. See, e.g., M. GASTAMBIDE, HIST0RIQUE ET THÉ0RIE DE LA PROPRIÉTÉ DES [AUTEURS 47 n. I (Paris 1862) (quoting Le Chapelier); A. NI0N, DROITS CIVILS DES AUTEURS, ARTISTES ET INVENTEURS 39-40 ( HHC: [bracketed] displayed on p. 1007 of original. 1006 Le Chapelier did declare
that “the most sacred, the most legitimate, the most unassailable, and… the
most personal of all properties, is the work which is the fruit of a writer’s
thoughts.” [64] But
he said it respecting unpublished works. Once disseminated, Le Chapelier
went on to assert, the manuscript is “give[n] over to the public… by the nature
of things, everything is finished for the author and the publisher when the
public has in this way [through publication] acquired the work.” [65] According to Le Chapelier, the main principle is the public domain, to
which authors’ rights are an exception. He
stressed that the new French law must put the principle and its exception in
the right place; were the exception to replace the principle that “a published
work is by its nature a public property,” then “you will no longer have any
basis for your law.” [66] Indeed, he criticized the English
copyright law for setting up a strongly protected right rather than appreciating
the principle of the public domain. The text of the 1791 law followed Le Chapelier’s organization of principles and exceptions: [67] Article 1
pronounced the right of all citizens to erect theaters and to perform plays of
all kinds; article 2 declared that works of authors who have been dead for over
five years are public property; not until article 3 did the 1791 law set forth
affirmative authors’ rights by conditioning performances of the works of living
authors upon their written consent. [68] A subsequent decree on playwrights’ copyright, handed 64. Report of Le Chapelier, supra note 1, at 117. 65. Id. Le Chapelier’s remark that “in the nature of things”, publication marks the demise of authors’ and publishers’ rights thus rejects assertions of an inherent post-publication property right in literary works. Others would echo this position. See, e.g., Judgment of Jan. 20, 1818, Cass. crim., 52 Journal du Palais Recueil de la Jurisprudence [J. Pal.] 5 (pleading of defendant’s advocate), quoted in 4 M. MERLIN, RECUEIL ALPHABÉTIQUE DE QUESTIONS DE DROrr 34042 (4th ed. 1828). The defendant argued that neither natural law nor customary law accords to authors the exclusive right to reproduce their published works, but rather a “specific law grants this right, which derogates from the natural right acquired by all [to copy] as of the first publication of the work”. Id at 341. Eighteenth-century English
copyright case law construing the Statute of Anne also distinguished between published
and unpublished works. See Donaldson
v. Beckett, reported in Millar v. Taylor, 4
Burr. 2303, 2408-17, 98 66. Report of Le Chapelier, supra note 1, at 117. 67. See id. at 118. 68. The sanction for unauthorized performances was
confiscation of all revenues from the performances and their award to the
authors. Article IV states the extent of
the new [law’s retroactive effect. Article V
confers a five-year post-mortem right on dramatists’ heirs or grantees.] HHC: [bracketed] displayed on p. 1008 of original. 1007 down on August 30, 1792, also reflected Le Chapelier’s weak embrace of authors’ rights. The January 1791 decree had not satisfied the
authors’ demands. The public’s right to
establish theaters had come into conflict with the dramatists’ right to
authorize public performances; particularly in the provinces, theater owners
were producing plays without paying the authors the full sums demanded. Beaumarchais petitioned the Assemblée Nationale for
a law that would better assure authors’ property interests. The resulting decree announced in the preamble
that “the right to publish and the right to public performance, which
incontestably belong to the authors of dramatic works, have not been sufficiently
distinguished and protected by the law”. [69] However, the actual articles of the 1792 decree made
dramatists’ public performance rights even more vulnerable than under the 1791
decree. The 1792 decree subjected
dramatist’s rights to compliance with formalities. It imposed on the author the burden, at the
time of the play’s publication, to notify the public that the author had
retained the public performance right. Articles
4 through 6 declared that the notice must be printed at the head of the text of
the play and deposited with a notary. Unless
these conditions were fulfilled, the dramatist’s right would never vest. [70] Moreover,
article 8 of the decree declared that plays could be freely performed at the
expiration of ten years following publication. In substituting a ten-year term for the 1791
decree’s life plus five years, the 1792 measure may have shortened the duration
of many playwrights’ protection. [71] 69. The text of the 1792 law, which is printed in the collected laws from June 1789 to August 1830, BULLETIN ANNOTÉ DES LOIS, DÉCRETS ET ORDONNANCES (Paris 1834), does not include the preamble. It is set forth in Baudin, Rapport et projet de décret sur Ia propriété des auteurs dramatiques, présentés au nom du comité de l’instruction publique, in I PROCÈS VERBAUX DU COMITÉ D’INSTRUCTION PUBLIQUE DE LA CONVENTION NATIONALE 349, 353 (M. Guillaume ed. 1891) [hereinafter PROCÈS VERBAUX]. 70. The 1792 law thus harks back to the printing press réglement of 1723 governing publishing and bookselling: article 103 conditioned issuance of printing privileges on publication of the text of the privilege at the front or back of each copy; article 108 required deposit of copies in the royal libraries. See E. LAB0ULAYE & G. GIUPPREY, supra note 20, at 3, 5-7. 71. This 1792 decree, volubly resented by dramatists, was repealed by the Decree of Sept. 1, 1793. See 2 PROCÈ S VERBAUX, supra note 69, at 353 (1894). Concerning the dramatists’ efforts before the revolutionary legislature, see generally Fragments d’histoire de la protection littéraire, la lutte entre les auteurs dramatiques et les directeurs de théâtres sous l’Assemblée legislative Française (1791-92), LE DROIT D’AUTEUR, Oct. 15, 1890, at 105-10. 1008 By 1793, however, the revolutionary legislators’
copyright rhetoric had shifted away from Le Chapelier’s
public domain principle toward recognizing a property right in authors’ works
even after publication. But this shift
did not markedly amend the prior reserved characterization of authors’ rights,
much less break with it. In the new
formulation, authors would still not receive protection primarily for their own
sake, but recognition of their rights would serve to promote the public
welfare. Indeed, jurisdiction over
elaboration of a copyright law had been transferred from the Committees on the
Constitution and on Agriculture and Commerce to the Committee on Public Instruction.
[72] Enacting a
copyright law formed part of a grander scheme of public education. The report of Lakanal, [73]
on behalf of the Committee of Public Instruction, at first signaled a more
favorable attitude towards authors’ rights. This document (which, like Le Chapelier’s report, is often quoted selectively) announced
in its first sentence a property right in works of authorship. [74] Lakanal
also dubbed the proposed law the “Declaration of the Rights of Genius,” thus
stressing copyright’s kinship to other great Rights of Man. [75] But other aspects of the report reveal
ambiguities. For example, Lakanal’s pronouncement of an author’s property right is
guarded. Unlike ancien
régime advocates of literary property, Lakanal
did not assert that “the author is the master of his work, or no one in society
is master of his property”. [76] Indeed, unlike Le Chapelier,
Lakanal did not even affirm “the most sacred,… the
most personal of properties”. [77] Rather, he proclaimed that this right
is “[o]f all rights the least subject to criticism, a right whose increase can
neither harm republican equality, nor offend liberty”. [78] The rhetoric here
displays a looking-over-the-shoulder quality inconsistent with a firm conviction
of the centrality of authors’ personal claims. [79] 72. See 1 PROCÈS VERBAUX, supra note 69, at iv. For a more detailed account of the shifts in committee responsibility in the revolutionary legislature over copyright legislation, see generally Hesse, Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, 1777-1793, 30 REPRESENTATIONS 110 (1990). 73. Report of Lakanal, supra note 1, at 176. 74. 75. See generally Declaration of the Rights of Man and of the Citizen (Fr. 1789). 76. Diderot, Sur la liberté de la presse 42, quoted in Birn, supra note 20, at 153. Diderot made the assertion at the behest of his publisher. Birn, supra note 20, at 152-53. 77. Report of Le Chapelier, supra note 1, at 117. 78. Report of Lakanal, supra note 1, at 176. 79. Interestingly, Pouillet’s
highly influential copyright treatise quotes this text quite [selectively, removing the more insecure passages,
those which claim that copyright will not harm the Republic. See HHC: [bracketed] displayed on p. 1010 of original. 1009 Some nineteenth-century commentators buttress this conclusion.
For example, in his 1858 study, Etudes
Sur la propriété Littéraire
en The text of the 1793 decree also undercuts arguments
that this law protects authors primarily because they are authors. Although in the version of the decree reported
by Lakanal on July 21 there was no requirement of
deposit as a prerequisite to suit, the final text incorporated the condition. As discussed earlier, [81] conditioning the
exercise of copyright upon compliance with formalities undercuts the notion of
a right inherent in the author. [82] Several early court decisions under the
1793 law held that deposit of copies, rather than simply meeting a procedural
requirement, gave rise to the copyright. [83] At the least, failure to deposit the
work could result in an initially protected work’s 80. E. LABOULAYE, ETUDES SUR LA PROPRIÉTÉ LITTÉRAIRE EN FRANCE ET EN ANGLETERRE xi (1858) (emphasis in original). 81. See supra text accompanying notes 14-15. 82. This observation is shared by R. CROUZEL, LE DÉPÔT LÉGAL 31(1936)
(quoting Vaunois, Le dépôt
légal des imprimés en Others also criticized the
1793 deposit requirement, but on different grounds. A deposit requirement tied to initiation of
suit in effect made deposit optional when no prospect of litigation existed. As a result, the 1793 law deprived the
national library of a sure means to enrich its collections, thus “undermining…
the progress of arts and sciences”. Cholet de Jetphort, Projet d’organisation
de l’imprimerie-librairie et des arts, états etprofessions qui y sont attachés ou qui en dépendent, adressé à Sa Majesté empereur et roi (1807), reprinted in H. LEMÂITRE, HISTOIRE DE DÉPÔT LEGAL, 3d pt., at 82 (1910). At the same time, the nondeposit
bar to suit “conveys an indirect approval of the commerce in pirate editions,
because, if one does not fulfill the deposit condition, one cannot pursue the
infringer”. 83. Judgment of Oct. 23, 1806, Cass. crim., [1808] 2 Recueil Général des Lois et des Arrêts [Dev. & Car.] 1.299; Judgment of Nov. 26, 1828, Cour royale, The Judgment of Jan. 20,
1818, Cass. crim., 52 J. Pal. 5, considered
compliance with formalities as giving rise to exclusive rights. The court stated that the plaintiffs
“published the work in 1816 and fulfilled all the formalities prescribed for
acquiring the exclusive right to sell.” HHC: [bracketed] displayed on p. 1011 of original. 1010 falling
into the public domain. [84] These rulings suggest a judicial view
that the act of authorship does not itself afford a basis for recognizing or
maintaining protection of authors’ rights. The prominence of the public
interest (and the public domain) in the 1793 law calls to mind Anglo-American
notions of intellectual property. Indeed, an observer closer to the event noted
the similarity. In 1838 Charles-Augustin Renouard, author of one of the first French copyright
treatises, articulated two opposing philosophies of copyright. According to one, authors are the absolute
owners of their work, both before and after publication. Their property right is, like all other
property rights, transmissible, perpetual, and inviolable. According to the
other system of copyright thought, authors are workers and not property owners; if the laws ensure them exclusive exploitation of their works, it is by virtue of a positive grant of civil law and of a tacit contract which, at the moment of publication, intervenes between the public and the author. It is by the establishment of a privilege, created as a legitimate and fair compensation, that the full and free exploitation of a published work is forbidden to all persons composing the public. This is the system of the law of July 19, 1793. Renouard pursued his identification of the 1793 law with
instrumentalist legislation, likening the 1793 law to French and English patent
laws, both of which may be characterized as state grants in exchange for the
ultimate enrichment of the public domain. [86] Others agreed that the 1793 law did not
afford 84. In
Judgment of Mar. 1, 1834, Cass. crim., 1834 Dev. & Car. 1.65, the Cour
de cassation states that the 1793 law
“guarantees literary property, upon condition of deposit of two copies
with the Bibliothéque nationale”
and refers to the “loss of that property right through failure of deposit”. 85. C.-A. RENOUARD, DES DROITS DES AUTEURS SUR LES PRODUITS DE LEUR INTELLIGENCE 242 (1838). 86. Whereas any new idea whose demonstration or development can be useful to society belongs initially to him who conceived it, and that it would be an attack upon the rights of man in their essence to fail to deem an industrial discovery the property of its author; whereas the lack of a positive and authentic declaration of this truth may have contributed up until the present time to discourage French [industry, by causing the emigration of many distinguished inventors and by causing the loss to foreign countries of a great number of new inventions from which this empire should have drawn the first advantage. In HHC: [bracketed] displayed on p. 1012 of original. 1011 authors
powerful guarantees of exclusive rights. Thus, parodying the Le Chapelier
and Lakanal reports, Laboulaye
lamented that under the 1793 law copyright had become “of all property rights
the most humble and the least protected”. [87] This examination of the legislative sources of the
first French copyright laws reveals that these framers did not greet the
concept of authors’ property rights with the enthusiasm that later writers
ascribed to them. Detailed treatment of
the political, economic, social, and intellectual reasons behind this
restrained embrace of copyright exceeds the scope of this Article. But two reasons for the framers’ reluctance
deserve at least brief notice. [88] First, generally the most vociferous
advocates for authors’ rights were not authors, but their publishers, or, more
specifically, the Paris Community of Book Sellers and Printers. [89] Arguments for
copyright therefore evoked images of guild self-interest in a period of
increasing anticorporatism. Not coincidentally the same legislator who
presented the begrudging report for the 1791 copyright law, Le Chapelier, also sponsored the 1791 law dissolving guilds
and corporations; the law’s first arti- 87. E. LABOULAYE, supra note 80, at xii. 88. For fuller discussions,
see, e.g., 89. See generally Birn, supra
note 20 (discussing the legal briefs and memoranda for representatives of
the Authors
in 1012 cle declared that “the abolition of all kinds of
corporations of citizens of the same occupation and profession is one of the
fundamental bases of the French Constitution”. [90] Second, and perhaps most importantly, a strong current
of Enlightenment thought objected on instrumentalist grounds to any assertion
of property rights in idea-bearing works: individual proprietary claims would
retard the progress of knowledge. In
1776 a major exponent of this position, Condorcet, published a pamphlet on
freedom of the press opposing not only censorship, but also copyright. [91] Publishers’
broadsides had analogized literary property to real property or chattels: an
author owns his writings just as one who tills the field owns the fruits
thereof. [92] Condorcet challenged this analogy. He pointed out what is today called the
“public goods” nature of copyright: a field belongs to only one person; by
contrast, a literary work can belong to and be enjoyed by many simultaneously. Social intervention is needed to create and
secure a property interest in such a work. If society is to intervene, the creation of a
privilege must be necessary, useful, and just. To Condorcet, publishers’ privileges, as they
had developed by 1776, were none of these; rather, they concentrated power over
books and thus power over ideas in a few hands. Condorcet therefore concluded that exclusive
rights in literary works diminished, rather than enhanced, public debate. [93] Condorcet’s position was to change. The Revolution’s suppression of privileges and
the concomitant collapse of the publishers guild did
not produce the outpouring of intellectual creations that might have been
expected. In her illuminating study of
the 90. The Le Chapelier Law of June 14, 1791, translated in 7
UNIVERSITY OF 91. M.J. CONDORCET, Fragments sur la liberté de la presse, in 11 OEUVRES DE CONDORCET 308-11 (M. Arago ed. Paris 1847). 92. See, e.g., Memoir of Louis d’Héricourt, reprinted in E. LABOULAYE & G. GUIFFREY, supra note 20, at 21-40. 93. M.J. CONDORCET, supra note 91, at 311. 94. C. Hesse, supra note 17, at 165-67. 1013 tern of
incentive and economic security were restored, book production, and hence the
dissemination of the Enlightenment itself; might cease. Authors’ exclusive rights became necessary to
the perpetuation and further flowering of revolutionary ideals. Professor Hesse
asserts that Condorcet as a result collaborated with the Abbé
Sieyès on a proposed new press law (not passed),
whose articles 14 through 21 stated: “The progress of the enlightenment, and
thus of the public good, join themselves to ideas of distributive justice, to
require that the law assure to authors the property right in their works”. [95] One may conclude
that Condorcet, like Le Chapelier, perceived the
public domain as the principle and copyright as an unhappy exception that
practice had proved necessary and useful. Under this view, a just copyright law should
be no more extensive than required to promote the public good. Thus, if as I argue, instrumentalist policies
did indeed promote and infuse the revolutionary legislators’ recognition of the
exclusive right of reproduction, those policies may have derived from suspicion
of proprietary rights in works of authorship, both as a matter of Enlightenment
theory and antiguild practice. I do not mean to suggest that French revolutionary legislators
perceived copyright solely as a vehicle to foster the public welfare. Sympathy for authors’ claims of moral
entitlement to rights in their works surely influenced enactment of the 1791
and 1793 decrees as well. After all, the
revolutionary copyright laws were drafted and enacted in a general climate
formally recognizing natural rights, including the “sacred” right to property
enunciated in the Declaration of the Rights of Man. [96] My point is that mixed motives underlay the
French revolutionary copyright laws (as well as their U.S. counterparts) and
that the parliamentary speeches and the texts of the laws themselves attest to
a certain tension between authors’ personal claims of right and the public
interest in access to works of authorship. Thus, without denying the presence of a strong
authors’ rights current in the revolutionary laws, I would suggest that the
revolutionary legislators generally resolved that public-versus-private tension
by casting copyright primarily as an aid to the advancement of public
instruction. 95. See 4
HISTOIRE PARLEMENTAIRE DE LA REVOLUTION
FRANÇAISE 283 (Paris 1834), quoted in C. Hesse,
supra note 17, at 164; see also 96. Declaration of the Rights of Man, supra note 75, art. 17. 1014 If the motivations for enacting the first French and The first French copyright law extended not merely to
“writings of all kinds” but to “all productions of the beaux arts”. [97] Putting
the two texts side by side, one might conclude that one law promoted Utility
while the other sought Beauty. In fact,
reports of French copyright infringement cases through 1814 indicate that, as
in the Moreover, even when the complaint of the French copyright
owner concerned works of higher Arts and Letters, the arguments of the
advocates would nonetheless sound familiar to an Anglo-American copyright
litigant: incentive rationales loom large in the reasoning of lawyers and
courts. [98] The
French copyright law may have protected a broader range of subject matter, but
in both French and American cases, the subject matter advanced state interests.
If the 97. Law of July 19-24, 1793, arts. 1, 7, 38 D.R.L. 444. 98. See,, e.g., Judgment of 29 therm. an 11, Cass. civ., [1791] 1 Dev. & Car. 1.818 (reviewing the genesis of copyright law, defendant’s advocate states “to advance the sciences it was necessary to encourage the savants, a very appropriate encouragement would be to assure them a private right over the printing and sales of their works”); Judgment of 12 vent, an 9, Trib. d’appel, Paris, [1791] 1 Dev. & Car. 2.17, 2 J. Pal. 120 (discussed infra note 112). 99. See supra text accompanying note 51. 1015 art,
[100] in the service of utility. Art glorified the French Revolution and spread its
ideals. A criminal copyright
infringement affair from the Year 7 of the Republic illustrates the point. [101] The work at issue
was a play. Theatrical works were among those
creations that the Revolution sought to encourage. [102] The pleading stressed the utility of
dramatic works in disseminating the Enlightenment and the Revolution. The prosecutor, complaining of inadequate
enforcement of dramatists’ rights in the provinces, declared: Shall literary properties
be less sacred in the eyes of the republican judge than other properties? It is to the wise men, to dramatic authors,
to all literary authors that we principally owe the uncontested superiority of
the French language over all the languages of I turn now to a more systematic review of copyright
infringement actions and decisions under the law of 1793 (through 1814). This review examines both the subject matter
and legal basis of the claims, and the nature of the arguments presented by the
parties or sustained by the courts. Of the thirty-seven controversies I have been able to
gather (some controversies consist of multiple hearings and appeals), the
subject matter of twenty-one concerns informational works. Another fifteen cases concern works of drama,
music, art, poetry, or fiction. And the
subject matter of one case is undisclosed. However, the initial subject-matter
distinction between information and art is not entirely satisfactory: many of
the 100. Jefferson and the French revolutionaries agreed
to this extent: In 101. Judgment of 21 niv. an 7, Bureau criminel, 102. For example, daily reports in Le Moniteur Universel often
included listings of plays in current performance in various theaters. The Feuiie
de correspondence du libraire, a biweekly listing
of works published in 103. Judgment of 21 niv.
an 7, 2 R.I.D.A. at 99. Not all literary expressions, however, won
revolutionary approbation. Drama might
help spread the Enlightenment, but novels, apparently, were considered
retrograde and useless. See, e.g., Lefebvre
de Villebrune, Considerations sur
le commerce de la librairie, Mar. 19, 1794, in
3 PRocEs VERBAUX,
supra note 69, at 615 (1897), quoted in Hesse, The Dilemmas of Republican
Publishing, 1793-1799, at 12-13
(to be published in the LXBR. CONG. SYMP., PUBLISHING AND READERSHIP IN REVOLUTIONARY 1016 works of
drama and poetry at issue purport not merely to entertain, but also to educate.
[104] Regarding the claims or defenses
at issue, of these thirty-seven controversies, eleven decisions concern formal
or procedural defects in the copyright or its enforcement. [105] This subject-matter breakdown does not purport to
reflect the overall relationship of published works of utility to published
works of entertainment; [106] rather, identification
of the kinds of works that spawned litigation serves to indicate the kinds of
works that generated sufficient popular demand to encourage piracy. Reference to the many decisions involving
formal or procedural defects may elucidate the efficacy of the 1793 law in
protecting authors’ rights. Frequent
foundering of authors’ claims on these rocks suggests a copyright regime
ill-adapted to vigorous enforcement of, and therefore perhaps not warmly
receptive to, the author’s monopoly. Many decisions as reported forgo explaining the
courts’ rationales; they simply state the subject matter and the result. From the more detailed decisions, what
approach to copyright emerges? While
some decisions assert or presume that copyright inheres in the author, others,
perhaps the majority, express or rely on more external justifications for
protection. In the first group, a
controversy from Year 2107 involved sales of unauthorized copies of memoirs. The plaintiff claimed the exclusive right of
reproduction and distribution. Although
some sales of the allegedly infringing copies took place after July 1793, the
defendant contended that it acquired the copies before passage of the July 1793
copyright law. The defendant offered not
to sell unauthorized copies in the future.
Challenging the retroact- 104. See, e.g., Judgment of Dec. 2, 1808, Cass. crim., [1808] 2 Dev. & Car. 1.609, 609 (works of Florian, including pastoral novels Estelle and Galatée; in his introduction to Estelle, the author claims to have “given a degree of usefulness to the pastoral novel”); Judgment of July 2, 1807, Cass. crim., [1808] 2 Dev. & Car. 1.406, 406 (poem and critical essay, L’Imagination by Delille). 105. Bibliographic records for the revolutionary period are incomplete, but information identifying published books and pamphlets may be garnered from: Feullle de correspondence du libraire (1791-92); Journal Typographique et bibliographique (from 1797); see also A. BEUCHOT, BIBLIOGRAPHIE DE L’EMPIRE FRANÇAIS (Paris 1813). 106. The names and sources for the cases, as well as capsule descriptions, are set forth in the Appendix. 107. Judgment of 19 niv. an 2, Trib. ler arr., reported in 1 LES TRIBUNAUX CIVIL5 DE PARIS PENDANT LA REVOLUTION (1791-1800), DOCUMENTS INEDITS RECUEILLIS AVANT L’INCENDIE DU PALAIS DE JUSTICE DE 1871 (A. Douarche ed. 1905) 657 [hereinafter Douarche]. This decision was affirmed by Judgment of 13 for, an 2, 1 Douarche 657, 658 n.2, and by Judgment of 8 therm. an 2, Trib. 4e arr., I Douarche 794. 1017 tive application of that law, the defendant disclaimed
liability for prior acts of copying and distribution. The court ruled for the plaintiff holding that
“natural fairness, the first of all laws, sufficiently warned the printers and
booksellers that it was not permitted to appropriate the productions of others,
and that any time one harms the property of another, one is essentially obliged
to compensate the harm suffered”. The
court’s reasoning presumes that, even absent a law regulating booksellers, the
author has a property right. Yet the
court identified no formal source of this property right, [108] but apparently
perceived it as arising out of the creation of the work. Moreover, the court did not refer to any
public benefit derived from protecting authors. A later decision, Buffon c. Behmer, [109] also recognized copyright
protection for pre-1793 works, but not exclusively because of general fairness
or an inherent property right. Rather,
the Tribunal de cassation ruled that privileges granted under the
1777-78 edicts, if not expired under their own terms, remained in force. The reasons offered for the persistence of ancien régime printing privileges are of
particular interest to this study. Buffon’s widow had charged a copyright infringement of
Natural History, whose forty-year printing privilege granted under the ancien régime had not yet expired. The defendant responded that the August 4,
1789, decree generally abolishing ancien
régime privileges had terminated the work’s protection and cast it into the
public domain, and that the August 20, 1789, decree establishing freedom of the
press entitled the defendant to publish whatever he wished. Buffon’s widow appealed to the Tribunal de
cassation, arguing that the August 4 decree did not apply to an author’s
rights under the prior edicts because these rights were not feudal and
therefore were not targeted by the general abolition of privileges. Similarly, she contended, the August 20 decree
simply recognized that “each man being the master of his own thoughts may write
and publish them as he desires”; [110] the decree in no way authorized the
appropriation of the works of others. In holding that the 1777 decrees remained in force
until 108. Cf Judgment of May 25, 1793, Trib. 3e arr., 1 Douarche 471 (infringement of Paul et Virginie; validating seizure and condemning defendant to payment of the fine “prononcée par la loi”; court does not state what “law” is at issue). 109. Judgment of 29 therm. an 11, Cass. civ., [1791] 1 Dev. & Car. 1.851. 110. Id at 852. 1018 prospectively superseded by the 1793 law, the court declared that the
decrees of August 1789, which abolished privileges and distinctions, and set
the press free, have no relation to the property acquired by an author in his
work, and which is simply the legitimate compensation for his work, and the
price naturally owing for the enlightenment which he spreads throughout
society.” The court invoked both personal and external justifications for
protection; it grounded the author’s rights both in the act of creation and in
the public benefits flowing from it. Thus,
the court first endorsed the notion that authors have property rights in their
works as the fruit of their labors, but then invoked the policy (fundamental to
Anglo-American copyright) that copyright rewards authors because they
contribute to the advancement of public instruction. Other cases also contain reasoning consistent with the
twin Anglo-American copyright goals of encouraging investment in, and the
creation of, works of authorship to promote public education. [112] One of these, the protracted affair of the Dictionary
of the Académie française, [113] merits attention both
for the statements of the government official intervening on behalf of the
plaintiffs, and for the Tribunal de cassation’s holding. The plaintiffs were publishers who succeeded
to rights granted by the revolutionary authorities to a prior publisher to
prepare a fifth edition of the Dictionary. A new edition had been in preparation when
the Académie française
was suppressed by the decree of August 8, 1793. Plaintiffs’ edition, incorporating the academi- 111. 112. See, e.g., Judgment of 29 therm. an 12, Cass. crim., [1791] I Dev. & Car. 1.1023, 1023 (recognizing
copyright in works by clerics because of the works’ value to public education);
Judgment of 12 vent, an 9, Trib.
d’appel, 113. Judgment of 7 prair. an 11, Cass. crim., [1791] 1 Dev. & Car. 1.806, 3 J. Pal. 293; Judgment of 28 for, an. 12, Cass. crim., [1791] 1 Dev. & Car. 1.971, 3 J. Pal. 747; Judgment of 6 for, an 13, Trib. d’appel, [1808] 2 Dev. & Car. 1.103, 4 J. Pal. 505. 1019 cians’ notes for new articles, appeared in Year 6. Three years later, the defendants published a
new edition of the Dictionary, based on the edition last published by
the Académie and updated with the
defendants’ own new articles. In the ensuing infringement action, the defendants
disputed plaintiffs’ copyright interest, arguing that with the abolition of the
Académie française,
the Dictionary became public property, available to all to republish
or revise. The defendants also indicated
that if anyone had a property interest in the Dictionary, under the
terms of the 1793 law granting copyright to “authors” [114] and designating the
“true owner” as the person to whom the infringer must pay damages, [115] that
person could only be the Dictionary’s actual writers, not the State or
the State’s publisher-grantees. Countering
this defense, the commissaire du gouvernement Merlin evoked a concept of authorship and
of copyright that we would now consider far more American than French. Today the French copyright system generally
proceeds from the principles that the “author” is the actual physical creator
of the work and that the creator’s status as an employee or commissioned party
in no way affects authorship or initial title to copyright. [116] (By contrast, The word authors does not have, under
the law, a meaning as restrictive as defendants have asserted. The word designates not only those who have
themselves composed a literary work, 114. See Law of July 19-24, 1793, art. 1, 38 D.R.L. 444 (1857). 115. 116. See Law of Mar. 11, 1957, No. 57-298;
art. 1. But see 117. 17 U.S.C. § 101 (1988). 118. 1020 but also those who have had it written by others, and who have had the work done at their expense... The rights that belong to the nation belong to it because it is the nation which itself instituted and paid the Académie française to compose this dictionary. [119] The court upheld the plaintiffs’ assertion of a
copyright interest on the ground that the plaintiffs were the “true owner[s]”
envisioned by the 1793 text: In the letter, as well as
the spirit of the law, the true owner to compensate for the infringement is the
owner of the original publication, that is, the publisher, because under the
tort of infringement only the publisher’s interests are harmed by the infringement
of the original edition. [120] The court’s reasoning diverges from a view of
copyright as the proper reward for the author’s creativity. Rather, the real party of interest was the
person who financed and disseminated the work. The court may have perceived the publisher as
the proper claimant of a right to compensation for its investment. But contemporary publishers did not directly
claim such rights for themselves; they claimed to be the contractual
beneficiaries of the authors’ rights. [121] The court appears to identify the publisher
as the true owner because, by funding and distributing the work of authorship,
the publisher is the vital link between the work and its public. [122] Other decisions casting doubt on the supposed
author-centrism of French revolutionary copyright turn on the plaintiff’s
compliance with formalities and the place of the work’s first publication. In
these cases, the emphasis on territorial factors [123] 119. Judgment of 7 prair. an II, Cass. crim., [1791] 1 Dev. & Car. 1.806, 3 J. Pal. 293, 297-98 (emphasis in original). 120. 3 J. Pal. at 300. In a later stage of the proceeding, the court rejected defendants’ assertion that their edition did not infringe plaintiffs’ because they had not copied plaintiffs’ new material, but had added their own new articles. Citing both the 1793 law and the 1777 decree, the court held that copying and revising the underlying work was also infringement. Judgment of 28 for, an 12, Cass. crim., [1791] 1 Dev. & Car. 1.971, 3 J. Pal. 747. A final, procedural, aspect of the case was decided in Judgment of 6 for. an 13, Trib. d’appel, [1808] 2 Dev. & Car. 1.103, 4 J. Pal. 505. 121. See supra note 89 and accompanying text. 122. Cf Note, Joint Authorship of Commissioned Works, 89 COLUM. L. REv. 867, 877 (1989) (arguing that certain hiring parties should enjoy authorship status under U.S. copyright law: “Recognizing deserving commissioners as joint authors is further conducive to the constitutional purpose of benefiting the public insofar as it facilitates the exploitation and distribution of creative works.”) 123. See, e.g., Judgment of Mar. 23, 1810, Cass. Crim., [1809-11] 3 Dev. & Car. [1.167, 167; Judgment of 29 frim. an 14, Cass. crim., [1808] 2 Dev. & Car. 1.197, 197; Judgment of 17 niv. an 13, Cass. crim., [18081 2 Dev. & Car. 1.53, 54. HHC: [bracketed] displayed on p. 1022 of original. 1021 or on
fulfillment of state-imposed conditions [124] suggests that the magistrates did
not consistently perceive copyright as a right inherent in the author. For example, the role of the deposit of copies
with the Bibliothèque nationale
as constitutive or merely declarative of the author’s rights remained
ambiguous throughout the revolutionary and Napoleonic periods. [125] If deposit constitutes,
rather than simply proves, copyright, then the right cannot arise out of the
mere act of authorship. Similarly, judicial pronouncements respecting the
territoriality of authors’ rights undermine the traditional characterization of
revolutionary copyright as a confirmation of rights inherent in the author. The key element in these cases is not
authorship, but completion of acts within French territory. Several controversies involved works copied in
territories that subsequently became annexed to 124. See, e.g., Judgment of Nov. 17, 1814,
Cass. crim.,
[1812-14] 4 Dev. & Car. 1.630, 631; Judgment of
July 2, 1807, Cass. crim., [1808] 2 Dev. & Car. 1.406, 406; Judgment of Mar. 23, 1810, 3
Dev. & Car. at 167; Judgment of 8 fruct. an 11, Trib.
d’appel, 125. See supra notes 83-84 (discussion of decisions). 126. See Judgment of 29 frim. an 14, Cass. crim., [1808] 2 Dev. & Car. 1.197, 197; Judgment of 29 therm. an 11, Cass. civ., [1791] 1 Dev. & Car. 1.851, 852. 127. See Judgment of 17 niv. an 13, Cass. crim., [1808] 2 Dev. & Car. 1.53; Judgment of Mar. 23, 1810, 3 Dev. & Car. at 167; see also Judgment of Jan. 30, 1818, Cass. crim., 52 J. Pal. 5, 12-13 (work first published in England by French émigré held protected under French law when author’s French publisher published and deposited copies in France before any competing French publisher’s publication). 128. Decree of Mar. 28-30, 1852, cited in HHC: [bracketed] displayed on p. 1023 of original. ] 1022 This examination of the French revolutionary sources
of copyright law reveals that revolutionary legislators, courts, and advocates
perceived literary property primarily as a means to advance public instruction.
Contemporary authorities certainly also
recognized authors’ claims of personal rights arising out of their creations,
but the characteristic modern portrayal of French revolutionary copyright as an
unambiguous espousal of an author-centric view of copyright [129] requires
substantial amendment. Similarly, this
study has shown that familiar conceptions of early 129. See, e.g., works cited supra notes 2, 5, 16 & 79 1023
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