Commentary on:
Simon Marion's plea on privileges (1586)

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Primary Sources on Copyright (1450-1900)
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Identifier : f_1586

 

Commentary on Simon Marion's plea before the Parlement of Paris (1586)
Frédéric Rideau

Faculty of Law, University of Poitiers, France

 

Please cite as:
Rideau, F. (2008) ‘Commentary on Simon Marion's plea before the Parlement of Paris (1586)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 

1. Full title

2. Abstract

3. The author's right of first publication

4. The decision of the Parlement of Paris

5. An anticipation of the author's literary property?

6. References

 

1. Full title
Second plea by Simon Marion, lawyer to the Parlement, concerning the printing of the Works of Seneca, revised and annotated by the late Marc Antoine de Muret

 

2. Abstract
It is not easy to find theoretical statements about the legal interests of the author in his work for the sixteenth and seventeenth centuries, although in practice authors could eventually count on receiving some form of remuneration in exchange for the transfer of their original manuscript, especially from the end of the sixteenth century onwards. Simon Marion's plea before the Parlement of Paris (the supreme judicial court of the ancien régime) is often cited as the first explicit apprehension of the author's right, that is, as a right specific to him, deriving from his own labour and creation and, in particular, the absolute right to communicate his work freely to the public. Although the reasons for which Marion won his case for his clients remain enigmatic, this famous judicial decision has also been referred to as a first step towards the recognition of literary property.

 

3. The author's right of first publication
In this case two Parisian booksellers, Jacques Dupuis and Gilles Beïs challenged a royal privilege which had been granted in February 1586 (with a six years' term of duration) to another Parisian colleague, Nicolas Nivelle, for the exclusive publication of Seneca's works. However, this version of Seneca had been annotated and illustrated by the humanist Marc-Antoine Muret (who died in 1585), and was first published in Rome just after the latter's death. Marion pleaded for the annulment of the privilege, on the grounds that the work should be part of the public domain, as it had been communicated freely and originally printed without any protection or privileges. Simon Marion's argumentation, after some emphatic digressions on ancient and modern Rome, and on Seneca and Muret,[1] was essentially based on the right of the author to choose the conditions in which his work was to be published for the first time.

 

According to Marion, because the author, by virtue of what he has invented or composed, is the legitimate owner of his book to a sufficient extent, he is entitled to choose the means of its entry into the "light of mankind". Indeed, by invoking a common analogy with God's power over the things He created and His dominium over heaven and earth, Marion presented the author as the absolute master of what he produces. He can dispose of it unreservedly, or keep it in his private possession, like the master who may ultimately decide to retain his slave as a prisoner, instead of granting him his liberty.[2] The first condition of Muret's edition of Seneca was to be "purely public and free [for anyone] to print", since it had not originally benefited from any exclusivity or monopoly whatsoever. It was "born free". Marion was thus implying that the will of the author of the annotations had been to offer his edition to the reading public and book market without any conditions: a humanist gift which stemmed principally from the "munificence of those who produced it".[3] This "common freedom pure and simple" conferred by the author on his manuscript proceeded from the virtuous and Aristotelian generosity of the gift granted to the Eternal City. A noble goal, therefore, which, according to St Thomas Aquinas, could still be incarnated as a Christian virtue in medieval times. [4]

 

Ultimately, the book could also have been published with different or additional motives in mind, that is, if its author finally decided that he wanted to benefit from the fruits of his composition. In this case only a "contract" which linked him to the public - since society could indeed owe an author "some kind of right of patronage" -[5] would have guaranteed this objective adequately. Only under these mutually binding terms could a privilege serve as a legitimate means of protection. However, it is primarily from a non-economic perspective that Marion discussed the act of publication, which seems to conform to the author's original intentions. Muret's main purpose, according to Marion, would have been in effect to live again after his death, as a result of his work participating forever in humanity's stock of knowledge.[6] From this point of view, any monopoly bestowed on the book, against the express will of its ‘owner', by any institution of authority, would break this powerful dynamic that existed between the author and his creation, and would not respect the ‘contract' on which he had agreed to communicate his work to the public. In a way, this rhetoric was probably an echo of a political argument frequently heard in medieval times which implied that princes could never grant privileges to the prejudice of individuals. By the end of the sixteenth century, authors such as Jean Bodin were trying to apply this principle to specific rights, more precisely arguing that royal favours were not supposed to infringe the property rights of individuals, nor their ability to dispose of their property.[7]

 

The Parlement of Paris pronounced its ruling on 15 March, 1586.

 

4. The decision of the Parlement of Paris
Perhaps in response to the main thrust of Simon Marion's plea, namely, his emphasis on the author's right to decide on the first publication of his work - the Parliament's decisions were not officially motivated -, the magistrates cancelled the six years' privilege of the defendant, the bookseller Nivelle. The book was thus returned to the public domain and could be freely printed by booksellers like Dupuis and Beys.

 

In practice, however, this decision was not really that surprising, insofar as it was quite coherent with the Parlement's judicial aims at the time, which were already then diverging from the approach taken by the King's Council, that is to say of progressively increasing the duration of privileges to the detriment of the "public domain". The Parlement admitted extensions of exclusivity on ancient works, if the new editions of these involved an element of additional value and scholarly labour: say, an "augmentation" of a particular work which included personal annotations by a new author, as was the case with Muret's edition of Seneca. As for the royal favours, the decision whether or not to grant extensions to them was not being taken any more solely on the basis of the original economic criteria, but also with political ends in mind.[8] The judges who formed part of the Parlement of Paris, therefore, were simply being faithful to the original and traditional definition of privilege, according to which it was no more than a private favour, stemming from the legislative royal sovereignty, but granted "against the common law", and which, consequently, should be limited.[9] The bookseller Nivelle, as Marion also pointed out, did not contribute anything new or "exceptional" to a work that had already been communicated freely to the public. Therefore, the exclusivity he would profit from would constitute an unjustified monopoly against "the public freedom of the Press".[10]

 

Moreover - and this complicates further our attempts to understand the true reasons for the annulment of Nivelle's privilege - the fact that the work was printed abroad may also have played a part in the decision taken by the members of the Parlement. For the avocat-général Séguier, who referred to the case in his 1779 historical survey of the book trade, the Parlement of Paris was protecting the principle of a significant public domain for all "the already printed books", "especially" (sic) when they came from abroad. This work was consequently, as Séguier put it, placed "in the class of books" which any printer or bookseller was free to publish.[11]

 

Still, Marion's plea and the Parlement's subsequent decision have been interpreted as a first step towards the recognition of literary property.

 

5. An anticipation of the author's literary property?
Simon Marion's plea has often been analyzed "in terms which are the affirmation of literary property".[12] The lawyer of Du Puis and Beïs even seems to have established "a causality bond between human work and property", thus anticipating by more than a century, in the view of some legal historians, the theory of John Locke.[13]

 

At least, seen from this perspective, it would appear that this right of property, stemming from the author's production, effectively implies the absolute control of the author over his work and over its eventual communication to the world. Or non-communication, for, even if the work was of public value and interest, "he [the author] may even keep it forever in his private hands".[14] In fact, this power over what he has "done, invented, and composed",[15] which was probably symbolized by the corporeal medium of the work (the ‘book' or the original manuscript), was manifestly and instinctively (d'instinct) accepted by all men.[16] However, when the manuscript was ‘freed' through publication, if the author did not happen to be guided by the ideal of munificence, then the work's eventual exclusive protection was only possible though a contract with the public, that is, by the kind of patronage (espèce de droit de patronage) referred to earlier. In other words, the author's literary property seemed to be conditioned by its corporeal object, but even more so by the true motives of the author in publishing his work.

 

In fact, this fundamental limitation, which seemed logical at the time - incorporeal literary property would have to wait until Louis d'Héricourt (f_1725b) - was to attract not the supporters of literary property, but, rather, its detractors. The refusal to conceive the right of the author as a monopoly on his published work, unless secured by a social contract in the public interest, would be invoked, in particular, by the provincial booksellers and their main lawyer, Gaultier, and, at around the same time, by Condorcet, in his Fragments on the Freedom of the Press (see f_1776a). In fact, Gaultier specifically referred to the Parlement's decision of 1586 as evidence of how these "individual encroachments" (atteintes particulières) on common law were traditionally condemned most "severely".[17] The main supporters of literary property, on the other hand - i.e. Louis d'Héricourt (f_1725a), Diderot (f_1763), and even Linguet (f_1777b) - did not even mention Marion's plea, nor, which is even more understandable, the Parlement's decision of March 1586.

 

However complicated and ambiguous they are to interpret, it nevertheless remains a fact that Marion's arguments (although the case was very much an isolated one in its time) are quite remarkable in the way that he tried to theoretically justify the bond linking the author, as a result of his labour, to his original manuscript, and the full control over it which he was therefore entitled to retain. But Marion's plea is perhaps also remarkable in the way that, before jurists had started defending literary property as a hypothetical patrimonial right, he strategically used for his clients this concept of the author's moral right, to defend two booksellers' interests in their own trade, thus anticipating the confrontations between the booksellers of the capital in the eighteenth century. Lastly, although it seems unnecessary to say this, the Parlement's decision did not have any specific legal repercussions for authors, nor did it explicitly improve their status vis-à-vis the booksellers.[18]

 

6. References.

Coleman, J., "Dominium in Thirteenth and Fourteenth-Century Political Thought and its Seventeenth-Century Heirs: John of Paris and Locke", Political Studies, 33 (1985): 97-98

Dock, M.-C., Etude sur le droit d'auteur (Paris: LGDJ, 1963)

Edelman, B. Le sacre de l'auteur (Seuil, 2004)

Pfister, L., L'auteur, propriétaire de son œuvre ? La formation du droit d'auteur du XVIe siècle à la loi de 1957 (Strasburg PhD thesis, 1999)

Renouard, A.-C., Traité des droits d'auteur dans la littérature, les sciences et les Beaux-Arts, vol. 1 (Paris: Jules Renouard & Co., 1838)


[1] A.-C. Renouard, Traité des droits d'auteur dans la littérature, les sciences et les Beaux-Arts, vol. 1 (Paris: Jules Renouard & Co., 1838), 112.

[2] Marion, 12 (f_1586).

[3] ibid., 13.

[4] Bernard Edelman, Le sacre de l'auteur (Seuil, 2004), 101.

[5] Marion, 12

[6] ibid., 13.

[7] Cf. Jean Bodin, Les six livres de la République (Paris, 1580), Book 1, ch. 8, 157 (see L. Pfister, L'auteur, propriétaire de son œuvre ? La formation du droit d'auteur du XVIe siècle à la loi de 1957 (Strasbourg: PhD thesis, 1999), 142. This is the reason for which privileges could be challenged in court.

[8] On this topic, see our commentary on f_1515 (where these original criteria are discussed), and also f_1686.

[9] According to a very well known definition of privilege, made by the provincial booksellers as late as the end of the eighteenth century ("requête adressée au Roi et à Nosseigneurs de son Conseil par les libraires et imprimeurs de Lyon et rédigée par l'avocat Flusin" - Mss. Fr. 22073, n°141): "prérogative ou un avantage accordé par le Souverain à une personne, qui en jouit à l'exclusion des autres et contre le droit commun").

[10] Marion, 12.

[11] Séguier's compte-rendu in Laboulaye and Guiffrey, La propriété littéraire au XVIIIe siècle, (Paris: L. Hachette & Co., 1859), 529-30 (f_1779).

[12] M.-C. Dock, Etude sur le droit d'auteur (Paris: LGDJ, 1963), 78 ("Marion plaida la nullité du privilège délivré à Nicolas Nivelle en des termes qui sont l'affirmation de la propriété littéraire"). In contrast, M. Rose, Authors and Owners: The Invention of Copyright (London: Harvard University Press, 1993), 21, specifies more carefully that with regard to Great Britain, he could not find any such explicit testimony in favour of a recognition of the author's interest in the control of the first publication of his manuscript.

[13] Pfister, 145, who points out, though, how the theologian Jean de Paris, in discussing, already in the fourteenth century, the grounds of appropriation by labour, may possibly have influenced Marion, and later even Locke himself (see J. Coleman, "Dominium in Thirteenth and Fourteenth-Century Political Thought and its Seventeenth-Century Heirs: John of Paris and Locke" in Political Studies, 1985, XXXIII, 97-98).

[14] Marion, 12.

[15] ibid., 11.

[16] In this vein, for a discussion of privileges granted to authors to protect, against printers or booksellers, this right to choose the condition and the form under which their work was to be published, see our commentary on Eloy d'Amerval's privilege (f_1507).

[17] Gaultier's memorandum (Mss. Fr. 22073, n°144 - f_1776): "D'abord ces atteintes particulieres au droit commun furent sévérement réprimées par nombres d'Arrêts" (p. 4), and among these (f.n. 3), "Arrêt de la Cour de Parlement, du 28 avril 1578. Autre du 3 aoùut 1579, contre Philippe Thinghi, pour la Somme de S. Thomas. Autre du Conseil du 14 Mars 1583, pour le Cours du Droit Canon. Autre du 15 Mars 1586, pour les Œuvres de Seneque", etc.

[18] On the prohibition of printing a book without the author's consent, see in particular f_1686.


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