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Report of Lamartine and parliamentary debates on literary property (1841)

Source: University Library of Cambridge : Le Moniteur Universel 1841 - Parliamentary debates from 13.3 (pub. 14.3), pp.634-36; from 22.3 (pub. 23.3), pp.714-19; from 23.3 (pub. 24.3), pp.726-34; 24.3 (pub. 25.3), pp.745-50; 25.3 (pub. 26.3), pp.759-64; from 26.3 (pub. 27.3), pp.776-83; from 29.3 (pub. 30.3), pp.818-25; from 30.3 (pub. 31.3), pp.836-42; from 31.3 (pub. 1.4), pp.851-57; from 1.4 (pub. 2.4), pp.863-69; from 2.4 (pub. 3.4), pp.875-77.

Citation:
Report of Lamartine and parliamentary debates on literary property (1841), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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            Chapter 1 Page 2 of 70 total




635


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this part of religious publicity. The law of 19 July 1793, on literary property, was silent. At the
restoration of the Catholic religion in Year 10, speculation seized this branch of the literary industry
alone and without guarantee. Grave abuses were drawn attention to; the decree of 7 Germinal Year 13
provided in these terms: “Article 1. Church, hour and prayer books can only be printed or reprinted
according to the permission granted by the diocesan bishops, permission which will be textually
reported and printed at the head of each copy.” – “Article 11. The printers or booksellers who print or
reprint Church, hour or prayer books without having obtained this permission will be prosecuted in
accordance with the law of 19 July 1793.” This legislation being diversely interpreted, either in the
sense of a continuous property appointed to the bishops or of the acceptance of a right of supervision
and of approbation, and rejected in incertitude and in doubt by the contradictory decrees of 1825, of
1830, of 1833, and by a decree of the supreme court of appeals of 28 May 1836, were in need, one
said, of being enlightened and fixed in the new law. Higher and more holy interests than those of an
ordinary property, religious liberty, the responsibility of the heads of a great religion, the safety of the
consciences of an immense number of Catholics, and finally the rights and the competition of a
considerable industry commanded us to examine it.
      Restoring the privileged and exclusive exercise of a sort of property on liturgical books to the
bishops, was to revert to an order of things that the liberty of conscience had abolished, it was to
despoil the religious public domain, it was to constitute literary property by incessant substitution to
the diocesan bodies, it was to privilege certain industries while depriving others, it was even to expose
the bishops to swallowing their dignity and their moral inviolability in the legal claims and in the
constantly odious proceedings that the exercise of a religious right that one had made an industrial
property would require of them.
      Depriving the bishops of their right of supervision over sacramental terms and over texts that
they answer for, was to impose upon them responsibility while denying them the means of exercising
it, it was to dent the liberty and the security of a great church within the State; for a religion is not free
if it is not in accordance with itself. The principle of Catholicism being authority, if this authority is
not guaranteed sincere and authentic in the dogma, in the practices, in the relations between the
spiritual head and the believer, the Catholic church will not enjoy all its liberty, for it will not enjoy the
plenitude and the guarantee of authority that is its nature, its faith, its rule. We have thought that to
touch the legislation of the year 13 still in force, would be to fall into one or another of these dangers;
that, by this legislation, the Episcopal authority would be invested with a suitable right, not of property
nor of privilege, but of special and preliminary approbation in the diocese for the printing and
successive reprinting of liturgical books for the use of this diocese; that the statement of this right of
high religious and political policing did not belong to a law of property and of literary counterfeiting;
that the legitimate exercise of this right, secured by the law of the State, interpreted by the
jurisprudence, moderated by the appeals as by abuses, necessary to religion, without any real injury to
the competition, remained full and complete in the hands of the bishops, who had no justification to
give for its use other than to their conscience, to the sanctity of their character and to the loyalty of
their transactions.
      One dominant provision remained to write into the very act that instituted the property of authors
in the name of the State. They were the reservations of the State itself; they have been proposed. After
a thorough examination of this proposition, that at first glanced seemed so plausible, the commission
refused to inscribe them within the law. The law, the author of the proposition said, has reserved to
society in all things the right of expropriation owing to public utility; why not proclaim here the right
of expropriation owing to utility of thought? Might it not happen that negligent or informed heirs
withdraw a work necessary for mankind from circulation and thus create a shortage of enlightenment
and of ideas that would leave, during several years, the nation or the world in suffering? What could
be easier than to provide? Say that the State will have the right to constrain the heirs, after a certain
period, to allow the printing of the work whose need is felt, in exchange for a compensation assessed
by arbitrators and handed over to the family by the editor. One replied with moral considerations of
great gravity; one highlighted this violent scandal of mores, of convictions, of the honour of families
that would offer a provision forcing a son to publish, for financial compensation, revelations that
would dishonour the name of his father, or writings that would sadden his own religious beliefs, or
lastly certain of those debaucheries of the human mind wherein the genius of style is so mixed with the
stains of thought that literary curiosity preserves them, although public decency would have them
destroyed. These considerations have been refuted; but a dominant consideration prevailed almost
unanimously within the commission; that really we were arguing about nothing, as this case, so
improbable in the future, had not occurred once in the past. Laws are made only for real events and
not for almost ridiculous improbabilities.
      One does not create legislation from a hypothesis. The hypothesis of a work that is necessary for
the world, useful, moral, published during years and artificially smothered for the world, seemed to
your commission such a chimera, that it did not think to have to mention it in its law. You will
consider it.

      The property of plays makes up title II of the law. Until now the decree of 5 February 1810
made up the entire legislation relative to dramatic compositions. The legislator could not forget in his
guarantees the fruits of this great art that was elevated by antiquity to the dignity of an institution that
the police of modern States keeps under an exceptional vigilance due to its power, and which has
served more than any other, perhaps, to propagate the French language, civilisation and influence,
through the noble creations that French genius has shared with Europe. Our theatre is a part of our
patriotism. We could not disinherit it.
      A dramatic composition is made up of two distinct things: the composition and the performance.
It is a written work [écrit] as long as it remains in the hand of the author; it is an action the moment it
passes into the role of the actor. And so this complex and double nature of plays constitutes a double
property. Without the author theatre has no drama. Without the actor the drama has no representation.
The theatre and the author, both proprietors for different reasons and not existing or existing
incompletely one without the other, thus had to make between them a sort of equitable sharing of the
common property, so that the rights of one would not be absorbed by the other, but so that each would
have his legitimate share of the voluntary price that the public brings every day to these noble games
of intelligence wherein the genius of the actor [sic] completes the genius of the writer; the entire law
was there, and practice had anticipated the law. No theatre could perform a play without the
permission of the author. Remuneration designated as the author’s share, assessed, debated, fixed by
the competition, the habitual practices and the rules specific to each scene, was assigned to him. We
only had to write that the right to this remuneration would last fifty years after the death of the author.
As for the quality of writing rather than of recitation of their work, the poets will be governed in the
property

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of their theatrical compositions by the legislation of title I on the works of the writer.
      The same articles will protect the authors of works of music, whatever the mode of reproduction
of their musical thought. In ordering the deposit of copies of the musical work in the Ministry of the
Interior, and in referring to the rules for the distribution of these copies, the commission has implied
that the Conservatoire will be regularly enriched by one of these copies on the double account of it
being an element of art and a proof of property.
      Title IV called upon us to draft the legislation of the arts of drawing, of the paintbrush, of the
chisel. We had to treat these arts, half intellectual, half mechanical, within which thought is
personified on canvas and in marble, and within which genius is materialised in the hand of man, with
the respect that they deserve; we had to guard ourselves against a too meticulous enquiry of the
conditions of property in all these sorts of works, and to not cross the almost indistinct limit where art
is confused with trade. The recompense of trade is the salary or the patent; the recompense of art is
glory and property.

      But here one of the most serious controversies that the law has been the subject of presented
itself: to whom of the author or the acquirer of a painting or a statue would the exclusive right to
reproduce them by engraving or by casting belong? The Government’s bill attributed it to the
acquirer. Numerous claims, supported by eloquent protestations, and even invested with the authority
of one of the classes of this institute whose very name commands examination and imposes respect,
arose from painters and sculptors; these grievances of genius have found sympathetic spokesmen
within the commission; two opinions, equally benevolent towards art, but divided with regards to the
true interests of the artist have long been opposed.
      One argued with the artists: When we sell a painting or a statue, we only sell a material object,
but we do not sell thought personified in the canvas or in the marble, above all we do not sell the right
to denature it, to degrade it, to debase it by imperfect imitations or by ignoble reproductions. This
would be to sell the right to profane or to calumniate our talent; one cannot, one must not take from us
the right to preside ourselves and ourselves alone over the imitations of our work; one cannot do so out
of respect for art, one must not do so out of respect for public morality. Art needs skilful and
concerned overseeing; public morality does not want thought, at times young, rash, lost [égaré] from
the artist in the first days of its existence, to come to compromise his name, accuse his youth, grieve
and perhaps dishonour his family through an untimely reproduction contrary to his will. The law that
would confer the right of engraving to the acquirer would be full of peril for the artist, for the
engravers, for the acquirer himself; the paintings changing hands, they would therefore need to carry
with them, from alienation to alienation, a certificate of origin ascertaining from proprietor to
proprietor that the right of reproduction was sold by their author, and that this right was not exhausted
by one of the first acquirers! Would this be possible? And the sale and the engraving of each object
of art would it not thus become a trap wherein acquirers and engravers would fear each instant to be
caught?
      The other opinion replied: We want to create a serious property, worthy of art and worthy of the
law which consents to inscribing it within its code. Would the property of a thing whose possession
would be on one side and its use on the other be a serious property, absolute and worthy of the law?
Such servitude attached to an object of art and that would restrict its enjoyment to a sort of local,
uniform and platonic contemplation of the object, would it not immensely diminish the value of this
nature of property for the artists themselves? And would it not intimidate, by discouraging them, the
consumers of luxury who would acquire these kinds of objects by delight, by munificence, by a
generous pride of patronage or to perpetuate the memory and the glory of this in their house?
Obviously yes. Nothing forces them to acquire; tempt them by acceptable conditions; do not sell them
a problem, a subjection, a restriction, but a property full of security and liberty! What rich art
connoisseur, often foreign, would consent to acquiring an object of art, under the provision of
confining it to his gallery, safe from the burin of the engraver or the chisel of the copyist, responsible
in his absence for the furtive copies that might be made? This cannot be admitted; and supposing that
you should compel the artist to obtain for this the free consent of the acquirer, what becomes of the
reproduction? How will two families of heirs, of the artist on one hand, and of the acquirer on the
other, reach an agreement at times at five hundred leagues of distance on the choice of an engraver and
on the conditions of a reproduction that would be for each of them an object of taste or of contrary
interests? It is to condemn the work to sterility, it is to condemn art to penury, it is to condemn society
to deprivation during eighty or ninety years, of the types, the models, the masterpieces that elevate its
moral sentiment by multiplying for it the images of beauty; for there is no less morality for society in a
painting by Raphael or in a statue by Phidias, than in a poem by Homer or in a sentence by Plato. It is
a law of merchants, it is no longer a law of legislators.
      And as for the alleged practical inconveniences of the provision that would have the right of
engraving follow the material object, if they exist, are they not the same as in the provision that would
reserve them to the heirs of the artist? Would not the painting change hands as well? What means
will the successive acquirers have of knowing if the right of reproduction has been exhausted? If the
painting has received its legal term? If the statue has been subjected to this quarantine of publicity that
you want to impose upon it? Will the heirs of the artist be men of genius and taste as well? Will the
reproduction of the painting be better secured in their hands, at times ignorant, often indigent, than in
the hands of the acquirers, speculators or rich? A hundred times less. Renounce therefore, for the
artists, to a claim that satisfies a legitimate pride and an apparent interest for a few days, but which, in
reality, intimidates the acquirer, diminishes the value of their productions, paralyses art, deprives
society and discredits the law.
      In this hesitation produced by such opposite appearances, we sought whether there would not be
means of eluding the question. We said: Give the right to both the acquirer and the author. We
realised that it was to destroy the engraving. For the engraver, whose work requires years, needs
security and guarantees as well. Where will be the security, if, while he spends a part of his life for the
reproduction of a masterpiece, whose sale should compensate him, this same masterpiece is,
unbeknownst to him, engraved by another engraver? We said: Erase the word exclusive, and declare
that there is no right, and that the painting takes with it the reproduction as the material object takes
with it its shadow or its image. We recognised that it was to remove an immense and legitimate
remuneration from the author of the work, and to kill the reproduction by unconditional competition.
We maintained the article presented by the Government, voted by the Chamber of Peers, validated by
the Commission of 1826. The right of artists, to be exercised, will need to be written. We did not
consent to giving them a privilege, which, in inflicting the sold object

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with an onerous servitude, would even refuse to declare it in the contract itself.
      In case of escheat we have attributed to the State the right to make over its rights to the spouses
of the author. This was in accordance with practice in all cases of civil death.
      We have also prescribed that the unexpected profit of the years added to the property by the new
law would benefit the heirs or the legal successors of the author. This advantage of the law, so that it
would have no retroactive effect, could not also be attributed to still living authors who would have
alienated their property before the promulgation of the law; in this case there would be alteration of
conditions and prejudice to the editors. Instead of finding themselves, at the expiration of their
privileged property, facing competition and competitors themselves, they would find themselves
facing another privileged right that would have blocked their industry. This required an exception, we
have made it. The liberality of the legislator can concede favours, but on the condition that they are
still just.
      The title VI is but the penal sanction of the provisions of the preceding titles. Any non-secured
right is a fictive right; there must be force behind the law. This force is punishment. The commission
was unanimous in the thought of arming literary property with moral force and penal force sufficient
for it to be efficiently protected against inside counterfeiting. The articles 19, 20, 21, 22, and the third
paragraph of the article 23 of the bill have as objective to determine this penalty. The fine of 300 to
2,000 francs incurred by any counterfeiter, the damages equal at least to the value of the original
edition from which the counterfeit has been made; an increased fine and imprisonment in case of a
repeat offence, were retained or inserted into the bill. If too strong punishment discourages the judge’s
justice, too weak punishment discourages the industry and discredits the property. Caught between
these two pitfalls, we desired that an offence, all the more culpable in that it is always premeditated;
all the more necessary to strike at when it shows itself in that it is always committed in the dark, be
affected not only by the dishonour that it defies, but also by the compensation that its has too long
escaped. The law has made itself in advance the arbiter of damages. It fixes them at the value of the
edition that one has wanted to counterfeit and that one has counterfeited. It is the Lex talionis most
justified by the intention of the counterfeiter and by the damages to the editor. It is the exact measure
of the compensation placed in the judge’s scale against the exact measure of the offence. The chamber
will decide if a provision so just should not be a legal provision? If there is danger in writing into the
law that which is arbitrary, there is never any danger in writing that which is just. The law of 1793
arbitrated in advance the presumed damages of a counterfeit to the value of 3,000 copies. It was less
just and more severe.

Foreign counterfeiting

      But while we were making the code of literary property for France, the urgency of an
international code for this nature of property came to light from everywhere, from the complaints of
our literary industry, from the catastrophes of our book trade, and from the unanimous cry of
reprobation that rises in all of Europe against this squandering of national properties, of industrial
properties and of private properties, that the silence of public law no doubt authorised, and which,
though being a right of all against all, is no less a scandal of civilisation. No sooner is a book printed
in London, in Vienna, in Paris, that foreign counterfeiters seize hold of it, and that, without having to
suffer either the regulations of taxes or of national work, or the advances of the original editors, or the
right of the author, they reprint them in all formats, substituting themselves for the rights onerously
acquired by the editors, and inundating Europe and America with this contraband of thought, all the
more advantageous for them in that this equivocal commerce is far from hazardous and that it only
acts on books whose success is already made and whose sale is consequently certain. It is through this
that the literary industry of great nations leaks from all sides, and that their book trade, despoiled in its
natural home, becomes the privilege and the monopoly of a cosmopolitan industry that exploits to its
advantage a banal property that the negligence and the injustice of great States has too long delivered
to them.
      As for France, the despoilment of this industry amounts to no less than 8 to 10 millions per year.
This infringement, no less harmful to literature than deadly to commerce, has struck all the
governments at the same time. The smallest were the first to sense the evil. They understood that a
property that ceased at the frontier, when this frontier was close, existed only in name. What could be
the remuneration of an author or a bookseller, in Rome, in Florence, in Parma, when one could reprint
without fraud in Naples, in Turin, in Modena, in Milan? It was the same in Germany. The small
States could no longer write, the large States could still do so; it did not take long before their industry,
at first protected by a greater mass of national consumers, was stolen from them. Things are at that
point. Everyone is complaining; everyone demands an international law, necessary to institute for all;
one has started from neighbour to neighbour. The States of Italy, with the exception of Naples, first
founded the perpetuity of literary property in favour of authors and their heirs, they have furthermore
proclaimed the internationality of the property of books. The counterfeiter of the work published in
one of these peoples will be prosecuted and punished everywhere [chez tous]. Germany has followed
the same route. Counterfeiting within Germany is prohibited.
      England, Russia, Austria, France, moved by ideas of general equity, more than by more or less
equal interests, appear disposed to write everywhere this public right of an additional property. The
English Bill of 31 July 1838 has already formally written it. We have, we, eminent literary nation, two
means of hastening this entente of governments which, to be efficient, must be or become unanimous.
Rivalry or initiative; counterfeiting authorised in our country, nations that counterfeit us, or the moral
and generous proclamation of the respect of the property of others in our country, even before this
principle be proclaimed to our benefit in all nations.
      Natural equity, which it is always glorious to be the precursors of, and the most enlightened
interests on that which concerns them, the writers, the printers, the booksellers were here agreed, and
requested from us with insistence and with unanimity the proclamation, even rash and gratuitous, of a
great principle of morality elevated above national rivalries.
      Your commission paid tribute to this sentiment and shared it. Nevertheless, it did not think
necessary to disarm the Government of this value of reciprocity that could weigh in future
negotiations. The free proclamation of a great principle of international property seemed to it all the
more certain in that France, in requesting it of all Europe, would have advantages to offer to the
governments that desired to acquire it.
      It is by this small number of prudent provisions, improved even more by the discussion of the
Chamber, that you will express your solicitude for the various domains of thought. These noble
workers of the mind, who always complained about the ingratitude of the law, henceforth will only
have to complain about themselves. You will have given them all that a same legislation can give,
justice, remuneration

    


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