Commentary on:
Linguet's memorandum (1777)

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Identifier: f_1777b

 

Commentary on Linguet's opinion on the Decree of 30 August 1777 regarding privileges
Frédéric Rideau

Faculty of Law, University of Poitiers, France

 

Please cite as:
Rideau, F. (2008) ‘Commentary on Linguet's opinion on the Decree of 30 August 1777', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 

1. Full title

2. Abstract

3. The overall inconsistency of the 1777 decrees

4. The author's personal property

5. The author's freedom to transfer his property

6. References

 

1. Full title
Linguet's opinion on the Decree of 30 August 1777 regarding privileges

 

2. Abstract
Linguet, a famous lawyer, using arguments already presented in a previous memorandum in favour of the author's perpetual property, was one of the most convincing opponents of the last piece of legislation concerning the book trade to be passed under the ancien régime. The 1770s had indeed been a period of increasing tensions between Parisian and provincial booksellers since Diderot's Letter, forcing, as in England, lawyers of both sides to be more and more precise and persuasive in their arguments on the true nature of literary property. In fact, the various attempts during this period at carrying out liberal reforms of the corporatist organization - in particular under Turgot, the political mentor of Condorcet - may have been read by the Parisian guild as significant threats. The latter became real for the Parisian booksellers with the passing of the 1777 provisions on the duration of privileges, which provoked, as in England after Donaldson v. Becket (uk_1774), alarmist protests from the members of the guild. Linguet, using previous developments, attacked in particular the ambiguity of the definition of a privilege given by the king, and the inconsistency of such a definition with the recognition of the author's property. Like Louis d'Héricourt and Diderot before him, he also emphasized again the personal nature of the property recognized by these new provisions, and inferred from it an absolute contractual freedom for the author.

 

3. The overall inconsistency of the 1777 decrees
Simon Nicolas Henri Linguet, was a lawyer, a man of letters and also a journalist known in England, where he stayed to launch his Annales politiques, civiles et littéraires. Born on 14 July, 1736, he became a lawyer at the Parlement of Paris in 1765, where he demonstrated his talents and his blazing and polemical style in the famous case of the Chevalier de la Barre.[1] Particularly involved in the literary property debates, Linguet had been the lawyer for Luneau de Boisjermain (see f_1770) a few years earlier, defending the author's freedom to sell his own works. Following the promulgation of the legislation of August 30, 1777 (see f_1777a),[2] he appeared therefore once again to be a legitimate spokesman for the property of the "Men of Letters", but more particularly, this time, that of their assignees. In fact, he had also been an observant witness of the English battle of the booksellers, and seemed to be fully aware of the arguments exchanged at the time of Millar v. Taylor (see uk_1769) and Donaldson v. Beckett (uk_1774).[3] His 1777 memorandum reproduced arguments he had already deployed against the provincial booksellers in 1774, but often clarifying and adapting them to meet the precise concerns raised by the last important piece of legislation concerning the book trade to be passed under the ancien régime. [4]

 

As Linguet pointed out at the very beginning of his preamble, his attack focused particularly on article 5 of the Decree. According to this provision, the author, who lawfully obtained a perpetual privilege on his work, was subjected to a drastic reduction of its duration if it (or simply his manuscript) was transferred to a bookseller.[5] In effect, the nature of the royal favour securing the author's property seemed to fluctuate, depending on whether its beneficiary was the author or the bookseller.[6] According to Linguet, therefore, "this article, whilst appearing to respect the property rights of men of letters, in fact does them irreparable damage".[7] From the point of view of pure juridical logic, even given the nature of the privileges, the royal decrees rested, as Renouard would later argue, on a "very weak ground" or, in other words, were almost impossible to justify. For this famous nineteenth-century French lawyer and expert on intellectual property, this article might have been defensible had the preamble justified privileges granted on the basis of public interest. But the 1777 regulations, while seeking in fact to limit the duration of privileges, had "wrongly recognized in theory, to the profit of the authors, a right of perpetual property. There was a manifest contradiction between the principle which was conceded, and the care that was taken to avoid its consequences. This leaves the decrees unsustainable in logic."[8]

 

This was all the more unsustainable given that the property recognised by the king was of a very specific, personal kind.

 

4. The author's personal property
The most important aspect of Linguet's argument is to be found in his capacity of formally synthesizing the idea of a singular property, an idea which would soon come to influence the main protagonists of the revolutionary debates on literary property, such as Lakanal. For Linguet, as for Diderot, this property was characterised by its enigmatic personal dimension: "Certainly, if there is any property which is sacred and incontestable, it is that of an author over his work. This is not a type of property acquired, like others, by exchange, and whose possession, when formally scrutinized, can at times be cast into doubt or even annulled. The composition of a book of any kind is an act of genuine creation; a manuscript is part of the external substance the writer produces."[9] This famous passage, anticipating the revolutionary syntax, developed the idea that the manuscript, as a traditional support or medium of the work, reflected, to use a more modern expression, the personality of its author. In addition, this subjective approach towards authors' literary productions was to be applied to "any kind" of books: whatever their nature or merit happened to be, only their authors were supposed to modify or ameliorate them, in accordance with their own judgment.[10] The literary creative process was therefore not comparable to a skill or technique, a savoir-faire, however impressive that might be in its own right (say, that of a mechanic "assembling an unknown machine").[11] Of course, the particular bond which was thus acknowledged between the author and his creation stemmed precisely from the form of the work itself. Being the principal element of the literary process, it could not constitute a monopoly in literature, particularly over ideas.[12] The composition of a work was for Linguet a "true" creation, imposing itself consequently on other types of goods by its original superiority.[13]

 

This particular and personal property thus elevated the author to a noble position in society.[14] But this was a nobility of a specific sort, which did not emanate from the king any longer, but which directly constituted its own substance through the existence of a public for the author. This evolution has been described as the "ultimate metamorphosis" that Linguet would impose on the author's property, whereby the latter was no longer a means to "protect the possession of a thing", comparable to simple goods, but, rather, a way of conferring a title, a ‘dignity' or sovereignty which to some extent would be delegated to the author by the public.[15] More prosaically however, public success allowed some measurement of the work's value in addition to its honourable nature, which, besides, was not a completely new argumentation.[16] Furthermore, the role of the public, as a means of legitimising the author's right and ‘nobility' might not be so entirely necessary: for, as mentioned earlier, Linguet also argued that a work, of any kind, remained "such a noble object", precisely because it "springs forth from the author's mind, as perfect as it can be", even if it could have been better in the eyes of the public.[17] Therefore, the legitimacy conferred by the public was less constitutive of the nobility of the author than the singular bond which linked him with his creation. In this last perspective, Linguet's defence of literary property was close to Diderot's approach, or even that of Louis d'Héricourt. Far before the supposed German "personalist" influences on French jurists (see f_1878) and the development of moral rights in the second half of the nineteenth century (see f_1902), the main foundation of literary property was progressively shifting from the labour carried out to the person of the author as such.

 

Still, the public reaction was essential, not just for the author, but also for his bookseller. It was not sufficient that the author's property should be undeniable. Rather, as Diderot put it, the right of the first natural owner, however personal this property was, remained "the true measurement of the right of the purchaser".[18] To summarize, the author's ‘nobility', his true sovereignty, necessarily required the possibility of transferring his whole property - and the privilege which secured it - to the bookseller.

 

 

5. The author's freedom to transfer his property
Linguet denounced the writers who refused to assume their contractual freedom to dispose fully of their property. In particular, he attacked the Encyclopédistes, this "plotting, scribbling, intriguing, manipulative sect", who affected to publicly disdain the "glorious" profit that they could freely draw from their work, but could not escape "[the use of] flattery, in order to extract an annual salary from the authorities under the name of a ‘pension'".[19] So for the true writer - one from the elite, that is - it was essential that the securing privilege retained its specific nature irrespective of who its beneficiary was. Given that the property of the author was undeniable, the nature of the royal book trade "favours" was easy to define as being different from all other privileges in commerce, just as the literary creation differed from the inventor's skill: "Since a literary privilege is only a mark of recognition of pre-existing property rights, it cannot limit those rights".[20] The lawyer Cochu argued similarly that the bookseller, as the transferee of the author and thus "subrogated to all his rights, must enjoy them in the same plenitude, with the same integrity. They are not more liable to deterioration in his person, than they are in the author." [21] Louis d'Héricourt's perspective on the specific nature of the privilege in book trade, was still being comprehensively invoked again: the privilege was only an "authentic" approbation of a pre-existing property, "the equivalent of notarized deeds or judgments, which confer and guarantee citizens' rights over everything which constitutes what are known as civil possessions ", but which in no way constituted its source. [22]

 

If perpetual property was protected by article 5 - a "wise and just" regulation, - to link the nature and definition of the privilege to the transfer of the right it secured nevertheless signified at the same time a "humiliating" disavowal of its expected reasonable effects.[23] There were only two ways for an author to enjoy his rights: either by fully exercising them himself, by selling his own works or by yielding his privilege to a bookseller. For Cochu, the only realistic and efficient way for an author to reap the pecuniary profits from his work was obviously the second option: "isn't it obvious indeed that the majority of the authors who have neither the resources, nor the funds necessary to take care themselves of the edition and the sale of their works are absolutely forced to have recourse to booksellers?"[24] For Linguet, with his more nuanced approach, the choice ultimately had to be left to the author himself.[25]

 

It remains a fact that for the supporters of literary property, under the new regulations any form of contract by which the writer might wish to completely sell his work had become impossible and even seemed to be defined by the royal administration as an "offence". In addition to the loss of any true responsibility in his contractual exchanges, the author was left in a difficult situation regarding the negotiation of his rights with a bookseller. Indeed, his remuneration, often a lump sum of money settled for the transfer of his work, was ultimately dependent on the royal policy concerning the duration of privileges:[26] the consequence of article 5's provision, limiting the term of protection drastically by virtue of its mere transfer, was that the booksellers would no longer agree to pay significant sums of money for a limited duration.[27]

 

In a way, for Linguet the fact that the author was no longer able to choose the means of communicating his property freely to the public, in particular by transferring it without any limitations to a bookseller, meant that his newly consecrated perpetual right had been transformed into a "burden".[28] Although these criticisms were among the sourest that were raised against the 1777 decrees, they had no more legislative impact than any other memorandum of the time. Article 5, in particular, was not amended in the new decree of 1778 (f_1778a), in spite of a somewhat embarrassed defence of it by the king's lawyer, Séguier.[29]

 

6. References

Baruch, D., Simon Nicolas Henri Linguet ou l'Irrécupérable (Paris: François Bourin, 1990)

Laboulaye, E. and E. Guiffrey, La propriété littéraire au XVIIIe siècle (Paris: L. Hachette & Co., 1859)

Manuscrits Français (Mss. Fr.) Collection Anisson-Duperron (Bibliothèque nationale de France)

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]Linguet was finally removed from his post as avocat au Parlement in 1775 after several attacks against his colleagues. He was guillotined on 27 June, 1794, in Paris. Linguet's arguments in defence of the chevalier de la Barre provoked a scandal because of his discussion of the legitimacy of the presence of a religious object - a crucifix - in a public space. For more details of Linguet's stay in London, and the launch of the Annales, see D. Baruch, Simon Nicolas Henri Linguet ou l'Irrécupérable (Paris: François Bourin, 1990), 249 ff.

[2] And in particular the decree of the King's Council on the duration of book trade privileges which is reproduced at the beginning of Linguet's essay.

[3] See in particular his report of the Donaldson v. Beckett decision, in his Journal de Politique et de Littérature, contenant le principaux Evènemens de toutes les Cours; les Nouvelles de la République des Lettres, etc., no. 2 (5 November), vol. 1 (Brussels, 1774), 75-76:

"Interesting cases:

Judicial activity is for the time being reduced to a state of momentary silence. Its course having been interrupted by the public holidays which precede the feast of St Martin, all of France is now eager and desirous for it to resume again. A few years back there arose in England a legal dispute which is interesting for literature and indeed for everything that has to do with the progress of human knowledge. A London bookseller has denounced a Scottish bookseller before the Court of the King's Bench for having counterfeited a work of which he professed to be the sole owner. This private law-suit has led to the revival of a general question which had earlier been debated for quite a long time: namely, whether the author retains an exclusive and perpetual property right to his work after it has been published? Whether he alone has the right to make copies of it and sell these on his own account or through his legal representatives? Whether this right is based on common and natural law? Whether it has therefore always existed and must be maintained regardless of any regulation or statute whatsoever that might diminish it?

Since the result of this dispute was a matter of great interest to all of England's men of letters, several works appeared in defence of literary property.

This interesting question was settled in favour of the principle of perpetual property of authors or their assignees, at the Court of the King's Bench, which was presided by Lord Mansfield. After the Scottish booksellers then appealed to the House of Lords, this supreme court issued a ruling which was to quite the contrary effect. It was namely ruled there that the exclusive right of printing a work could not last longer than the term stipulated by the privilege accorded to them [booksellers] by a statute promulgated in the reign of Queen Anne. This statute restricts to fourteen years the duration of such privileges, although they may be renewed for a further fourteen years after that term. The same question is now being raised between the booksellers of Paris and those of the provinces. In some respects almost the same arguments are being used now as those that were debated recently in England." A manuscript version of these observations can also be found in the Anisson-Duperron collection (BnF, Mss. Fr. 22130, n° 19). One can see that Linguet, in his report, despite defending the Parisian booksellers at the same time, remains perfectly neutral in this matter."

["Causes intéressantes:

La Justice est en ce moment réduite à un silence momentané. Son cours interrompu par les vacances pleines qui précèdent la Saint-Martin, livre toute la France à l'attente & au desir de la rentrée.

Il s'est élevé en Angleterre depuis quelques années une dispute intéressante pour la Littérature & pour tout ce qui tient aux progrès des connoissances humaines. Un libraire de Londres a traduit un Libraire d'Ecosse devant le Tribunal du Banc du Roi, pour avoir contrefait un Ouvrage dont il se prétendoit seul propriétaire. Ce procès particulier a fait revivre une question générale long-temps débattue, savoir: Si l'Auteur conserve une propriété exclusive & perpetuelle sur son Ouvrage, après qu'il a été publié? S'il a seul le droit d'en multiplier & d'en vendre les copies par lui-même ou par ses représentans? Si ce droit est fondé sur la Loi commune & naturelle ? Si par consequent il a toujours subsisté, & doit être maintenu nonobstant tout Réglement ou Statut quelconque qui y dérogeroit?

Comme le résultat de cette dispute interessoit tous les gens de Lettres en Angleterre, il a paru plusieurs Ecrits en faveur de la proprieté Littéraire.

Cette question intéressante a été décidée en faveur de la propriété perpétuelle des Auteurs où de leurs Cessionnaires, au Tribunal du Banc du Roi, où présidoit Milord Mansfield. Les Libraires d'Ecosse en ayant appellé à la Chambre des Pairs, ce Tribunal suprême a rendu un Jugement tout opposé. Il a été décidé que le droit exclusif d'imprimer un Ouvrage ne subsistera que pendant le temps stipulé par le Privilége qui leur sera accordé en conséquence d'un Statut promulgué sous la Reine Anne. Ce Statut limite a 14 ans le terme de ces Priviléges qui pourront cependant être renouvellés pour 14 années par-delà.

La même question est aujourd'hui agitée entre les Libraires de Paris & ceux de Province. On employe de part & d'autre à peu prés les mêmes raisons qui ont été débattues en Angleterre."]

[4] Mémoire sur les propriétés et privilèges exclusifs de la librairie, 1774 (BnF Res-F-718 (62).

[5] Article 5. "Tout auteur qui obtiendra en son nom le privilège de son ouvrage, aura le droit de le vendre chez lui, sans qu'il puisse, sous aucun prétexte, vendre ou négocier d'autres livres; et jouira de son privilège, pour lui et ses hoirs, à perpétuité, pourvu qu'il ne le rétrocède à aucun libraire, auquel cas la durée du privilège, sera, par le fait seul de la cession, réduite à celle de la vie de l'auteur." ["Any author who obtains in his own name the privilege to his own work, shall have the right to sell that work in his own home, but may not under any pretext sell or negotiate the sale of any other book; he shall retain the privilege for himself and his heirs in perpetuity, so long as he does not transfer it to a bookseller; in which case the duration of the privilege shall be reduced, as a consequence of that transfer, to the life of the author"]

[6] On the definition of privileges and the rationale behind the earliest ones that were granted, see the commentaries on f_1507 and f_1515.

[7] Linguet, 37.

[8] A.-C. Renouard, Traité des droits d'auteur dans la littérature, les sciences et les Beaux-Arts, vol. 1 (Paris: Jules Renouard & Co., 1838), 179 . ["S'il ne s'était agi que de démontrer par des motifs de droit, et dans l'intérêt général, la nécessité de ne donner aux privilèges qu'une durée temporaire, les arguments n'auraient certainement pas manqué (...) Mais les arrêts, tout en cherchant, par le fait, à limiter les privilèges, avaient eu le tort de reconnaître en principe, au profit des auteurs, un droit de propriété perpétuelle. Il y avait contradiction manifeste entre le principe que l'on concédait, et le soin que l'on mettait à en éviter les conséquences. C'était rendre les arrêts insoutenables en toute logique"]

[9] Linguet, 31-32. Compare this with Lakanal's report before the 1793 revolutionary legislation, which begins thus: "of all the kinds of property, the most incontestable, the one whose increase is in no way injurious to Republican equality and which gives no offence to liberty, is undeniably the ownership of creative works ".

[10] ibid., 24. On this question, and the development of a so-called French subjective originality in the field of artistic and literary property, that is to say among jurists, see the Court of Cassation decision of 27 November 1869 and our commentary for this (f_1869).

[11] Linguet, 23.

[12] For a completely opposite approach, see, in particular, the last memorandum of the provincial booksellers in 1776 (f_1776), and the Fragments of Condorcet (f_1776a).

[13] One should observe that this distinction between authors' and inventors' works had been acknowledged in the same way in the royal legislation itself: compare f_1762, and the Royal declaration on patent privileges, and the preamble of the 1777 decrees (f_1777a).

[14] Linguet, 18.

[15] Bernard Edelman, Le sacre de l'auteur (Paris: Seuil, 2004), 290 ff.

[16] Linguet, 19: "La propriété même ici serait d'autant plus flatteuse que la noblesse ne pourrait être lucrative sans être honorable" ["In this case, ownership would be even more flattering, because nobles could not be wealthy without being honourable"].

[17] ibid., 24.

[18] Diderot, Lettre sur le commerce de la librairie, 16 (f_1763). See also p. 17.

[19] Linguet, 15.

[20] ibid., 30.

[21] Cochu, Requête au roi, in Laboulaye and Guiffrey, La propriété littéraire au XVIIIe siècle (Paris: L. Hachette & Co., 1859), 217.

[22] Linguet, 27.

[23] ibid., 31.

[24] Cochu,174-75. ["N'est-il pas évident en effet que la plupart des auteurs qui n'ont ni les ressources, ni les fonds nécessaires pour se charger eux-mêmes de l'édition et de la vente de leurs ouvrages sont absolument forcés d'avoir recours aux libraires?"].

[25] This more nuanced view can probably be explained by reference to Linguet's previous defence of Luneau de Boisjermain, and the right of an author to sell his own works, that is to say, to keep the property of his work, while only "mandating" a printer and a bookseller to ensure its reproduction and distribution (see f_1770).

[26] For some details on the contractual relations between authors and booksellers, see, in particular, the Desaint-Anville contract (f_1759).

[27] Pluquet, Lettre à un ami sur les Arrêts du Conseil du 30 août 1777 concernant la Librairie & l'Imprimerie (Paris, 1778) (f_1778), 9: "if the authors transfers his book to a bookseller, he will get only a modest [modique] price for it, because of this newly limited duration of the privilege."

[28] Linguet, 37.

[29] A. L. Séguier, Procès-verbal de ce qui s'est passé au parlement touchant les six arrêts du conseil du 30 août 1777, concernant la librairie avec les comptes rendus à leur sujet, in Laboulaye and Guiffrey (see also f_1779).


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