# Primary Sources on Copyright - Record Viewer
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 1


634


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CHAMBER OF DEPUTIES

PRESIDED BY M. DUFAURE, VICE PRESIDENT

Session of Saturday 13 March

      M. DE LAMARTINE. I have the honour of presenting the report on the bill concerning
literary property.
      And here is the text.

      M. DE LAMARTINE. Sirs, society, in constituting all property, has three objectives in
view: remunerating work, perpetuating the family, increasing public wealth. Justice,
foresightedness and interest are three thoughts found at the bottom of all things possessed. Are
justice, foresightedness and interest also to be found in the constitution of literary and artistic
property? Such is the first and grave question that your commission had to examine in detail.
Here, as throughout the course of work to which it applied itself, it was not enlightened by pre-
existing legislations; all remained to be discovered and created; antiquity had not spoken; the
modern legislations only explained themselves in a confused, arbitrary and often contradictory
language; a draft bill of 19 January 1791, a decree from the convention of 19 July 1793, a decree
on the book trade of 5 February 1810, a fine bill by M. de Salvandy and a discussion of the
Chamber of Peers were the only milestones plotting our course.
      The only code that your commission had to examine, was that of natural equity; it had, as in
all constituent questions, to go back to the elementary truths from which other practical truths
would follow, and to draw out so to speak one by one from the metaphysical and ideal order all the
principles and all the applications of the code of thought that it was instructed to present to you.
Not satisfied by these insights that emerge from a theoretical discussion, it invested itself with all
the existing documents and undertook the voluntary and unofficial investigation of literature, of
the printing industry, of the book trade and of art. Men of letters isolated or associated by bonds of
mutual assistance, members of our knowledgeable bodies, painters, sculptors, musicians, at the
forefront of their art, delegates of this great industry of the French book trade that has in some sorts
placed its glory in the glory of the great writers that it has spread, and finally, in a more elevated
and more saintly interest, the venerable head of the clergy of Paris himself, have consented to
having themselves heard by your commission, and to bring to you, each in the order of his
experience, of his needs or of his studies, the notions that might enlighten or complete the law.
Here is in a few words by what series of reasoning, of inductions and of facts, we have arrived at
the solutions that we have the honour of presenting for your deliberation.
      There are men that work with their hands; there are men that work with their mind. The
results of this work are different, the title of worker is the same; some struggle with the earth and
the seasons, they harvest the visible and exchangeable fruits of their sweat. The others struggle
with ideas, prejudices, ignorance; they also water their pages with the sweat of their intelligence,
often with their tears, at times with their blood, and harvest at the mercy of time misery or public
favour, martyrdom or glory. The results of material labour, more incontestable and more palpable,
first struck the thoughts of the legislator. He said to the labourer that had cleared the field: This
field will be yours, and, after you, your children’s. The recompense of your labour will follow you
in all the generations that come after you. And so territorial property was instituted, foundation of
the family, and through the family, foundation of all permanent society. As the social state was
perfected, it recognised other types of property; and property and society so identified themselves
in each other, that in travelling the globe, the philosopher recognises by certain signs that the
absence, the imperfection or the decadence of property in a people, are the exact measure of the
absence, the imperfection or the decadence of the society everywhere.
      But the thoughts of the modern legislator broadened. He did not only see labour in the
material fruits of the earth; he recognised it in all that implied labour and that constituted an object
of exchange or of influence for the State. Personal property was thus gradually developed.
      By virtue of a natural and just induction, the day had to arrive when the work of intelligence
would be recognised as useful labour, and the fruits of this labour as property. But by a generosity
worthy of its nature, the thought that had created everything forgot itself; it only asked of men the
right to enchant them or serve them; it only asked of glory the fortune of a name in the future,
leaving in destitution or in obscurity the family of the philosopher or the poet whose works make
up the intellectual wealth of a nation. It is true that at that time the printing press was not invented,
and that this intellectual wealth, subject to squandering by a few rare copyists, did not yet
constitute, as it has since, an immense industry, a visible capital, a material wealth that could be
seized, established [consacré] and regulated by the law. This phenomenon of the printing press
which renders thought palpable as in the characters that engrave it, and commercial as in the copy
that is sold, had to sooner or later call for a legislation to certify and to morally and equitably
distribute the products. This thought of the legislator removes nothing of the intellectuality and the
dignity of the work of the author. It does not depreciate the book in its innumerable quality of free
and spontaneous service rendered to the human race without any view of venal reward. It leaves
this remuneration to time and to the memory of men. It does not affect the idea, which never falls
into the inferior domain of a pecuniary law. It only affects the book that has become commercial
object through printing. The idea comes from God, serves man and returns to God, leaving a
luminous furrow on the brow of he upon whom genius has descended, and on the name of his sons;
the book falls into commercial circulation, and becomes a value producer of capital and of revenue
as all other value, and susceptible for this reason alone to be constituted as property.
      Is it just, is it useful, is it possible to establish [consacrer]

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the property of their works into the hands of writers and of their families? Here are the three
questions that we had to ask ourselves about the principle itself of the law, formulated in its first
articles. Were not these questions answered in advance: What is justice, if it is not the proportion
between cause and effect, between work and recompense? One man spends a portion of his
strength, some easy hours of his life, aided by a capital passed on by his forefathers, to make a
field fertile or to exercise a lucrative industry; he piles up product upon product, riches upon
riches, and enjoys them himself in the affluence or in the pleasures of his life, you assure him its
perpetual possession, and after him to all those designated by blood or by testament. Another man
spends his whole life, consumes his moral strength, enervates his physical strength through the
neglecting of his self and his family so as to enrich humanity after him either with a masterpiece of
the human mind, or with one of those ideas that transforms the world: he dies with the effort, but
he succeeds. His masterpiece is born, his idea is hatched. The intellectual world takes hold of it.
Industry and commerce exploit it. It becomes a belated wealth, often posthumous: it throws
millions into work and into circulation; it is exported as a natural product of the earth. Everyone
would have a right to it, except he who created it and the widow and the children of this man, who
would beg in indignity next to public wealth and private fortunes, engendered by the unrewarding
work of their father! This cannot be upheld before our conscience, within which God himself
inscribed the ineffaceable code of equity.
      Is this useful? It would suffice to answer that it is just; for the foremost utility for a society is
justice. But those who ask whether it is useful to remunerate in the future the work of intelligence
have never thought back to the nature and to the results of this work. To its nature? They would
have observed that it is work that acts without capital, that creates it without spending it, that
produces without any other assistance than that of genius and of will. To its results? They would
have seen that it is the kind of work that most influences the destinies of mankind, for it is the one
that acts on the thought itself of humanity, and that governs it. That one covers the world and time
in thought, the Bible, Vedas, Confucius, the Gospel, one finds everywhere a holy book in the hand
of the legislator at the birth of a people. All civilisation is the child of a book. The work that
creates, that destroys, that transforms the world, is it a work indifferent to the world?
      Finally, is this possible? This potential and fugitive wealth that results from the materialised
propagation of the idea, by printing and by the book, is it of a nature to be seized, fixed, and
regulated in the form of property? The facts have answered this question for us. This property
exists, is sold, is bought, and is defended like all others. We only had to study its processes and
regularise its conditions to have it enter completely into the domain of things possessed and
secured [garanties] to their possessors. This is what we have done.
      But a prejudicial question took precedence and dominated the provisions to be made. Would
we constitute the property of works of intelligence perpetually or for a certain time only? We did
not ask ourselves this question, and we will tell you why: we were a commission of legislators and
not an academy of philosophers. As philosophers, going back to the metaphysics of this question,
and without doubt finding in nature and in the natural rights of intellectual labour, titles as evident,
as sacred and as indefeasible as those of the labour of hands, we would perhaps have been led to
theoretically proclaim the perpetuity of possession of the fruits of this labour; as legislators, our
mission was another; we did not want to exceed it. The legislator rarely proclaims absolute
principles, especially when they are new truths. He proclaims applications, relative, practical and
proportioned to the received ideas, the mores and the customs of the time and of the thing for
which he writes the code. We have considered that the ideas regarding literary property were still
not sufficiently rationalised, that its mores were not sufficiently set, and that its constitution was
not sufficiently universally European and international; that finally its uses were not sufficiently
taken from the common law of the other orders of things possessed that in constituting secured
rights, we might at the same time constitute from today the transmissibility without limits across
time. In investing this law with the conditions of a complete possession, we have therefore
thought it necessary to limit it in duration. We have placed no limit on its rights; we have
established a limit in time. The day when the legislator, enlightened by the test that it will itself
make, judges that it can enter into a more extended exercise of its natural rights, he will only have
to remove this limit; he will only have to say always where our law has said fifty years, and
intelligence will be emancipated.
      Why have we said fifty years and not always? This is one of the points that was the most
seriously debated by your commission. The Government’s bill only stated thirty years, but it
stated it with regret.
      Here your commission separated into two almost arbitrary opinions, but that nevertheless
sought in reasoning the instinctive motives, so to speak, for their preference for the concession of
thirty years or for the concession of fifty years. Some said: The property of great works of the
mind is the patrimony of society before being the private and useful domain of any family. A
longer possession granted to the family will make the book more expensive and will hamper its
reproduction. What does society want? Not to deprive, but to enjoy. In leaving thirty years for
the author’s family, it does not deprive his widow, whose life rarely extends beyond this term, and
it enters earlier into the complete enjoyment of the intellectual wealth that remains its acquisition.
The others replied: The material possession of an author’s book by his family removes nothing
from the intellectual property of the book acquired by society the very day of its publication.
      If the book is good and useful, it has a very great number of buyers; it is published under all
formats in an ever-expanding number of copies; the low remuneration of the author’s right paid
once and for all to the author himself, or paid successively to the family for the right of
publication, is drowned, or becomes imperceptible in the venal cost of the book, and in no way
affects its circulation. Often, on the contrary, the family’s interest in glory or in money instigates
undertakings or new editions that would never have been made without these circumstances.
Moreover, if it is not the family that benefits from the author’s book that it inherits, it will always
be someone: it will be the editor. The editor will sell the book at the highest possible price. What
interest does society have in that the benefits made from the book belong entirely to the editors,
instead of being shared between the editors and the heirs of the writer?
      It has none, or rather it has a very real interest in that the wealth, produced by the sale of a
useful book, returns and adheres the longest possible to those who have created it; it has another
interest which is that the longer the private property of the book remains in the hands of interested
and vigilant possessors, the longer the counterfeits of this book abroad will be forbidden and
averted, so that the industrial wealth from the exploitation of the book

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remains the longest possible within the nation; but another reason has dominated all the others: of
what, one has asked, is the moral unity, the abstract being of the writer composed? Of three beings:
the author himself, his wife and his children; the father, the wife, the son, it is but one being; this
being that one names the first-degree family. Because you want to constitute literary property for a
certain number of years, take, not this term of thirty years after the death of the author, term past
which his wife still lives and his children are only just entering mid-life, but take half a century,
this term of fifty years that embraces in the probable mean of the eventualities of life and of death
the entire circle of the three existences covered by the three beings who represent or who
immediately follow the author himself; do not break this sole moral being into two or three parts,
of which one will have enjoyed all the ease of property under the auspices of father, and of which
the others will languish in an indignity all the more cruel in that they will have known better days.
      The term of thirty years would bring out at every instance these scandals of a public domain
enriching itself with the despoiled works of genius across from the wife and sons of the man of
genius, living in misery and destitution. Lastly do not forget, one adds, that what you write in the
law will not be realised in effect. If you write thirty years, the family will only really enjoy twenty
years; if you write fifty, the family will only have forty. Thus rules the industry. When it is
warned by the law of the fatal term when the property of a work will fall into the public domain, it
stops and it waits. Eight or ten years before the expiry date of the families’ property, there is no
more property. The editor no longer presents himself; he defers to free exploitation: the
intellectual domain is struck by sterility.
      These motives have prevailed, and your commission has amended the Government’s bill in
the direction of this arbitrariness, more liberal, more generous, more equitable and more in
accordance with the true processes of speculation.
      The principle and the limits of literary property having been fixed, it remained to determine
its mode of temporary transmissibility.
      The bill and the commission have been agreed in this thought that the property of the writer
on his work during his lifetime was something immaterial, indivisible, continuous and exempt
from seizure in the person who refused any alteration of his free and full exercise on this work.
But in the case of the death of one of the spouses other than the author, a question presented itself.
What would be the fate of literary property, if the law made it a communal good subject to the
rules that the Civil Code imposes on this type of common goods between spouses? The heirs of
the wife would present themselves, instantly seize their share, and thus deprive the author before
his death of his plenitude of exercise, of his intellectual domination over his work? The nature
itself of this property, entirely personal, entirely moral, entirely indivisible in thought was violated.
If, on the contrary, the law declared that literary property was not a communal good, what would
happen? That the wife, whose moral assistance and often financial assistance had greatly
contributed to the creation of the literary or artistic work through her devotion or through her
capital, would find herself, in her person and in those of her heirs, deprived of her share of the
benefits or of the rights that she had during a long and intimate collaboration drowned in the
fortune of the author. On the one hand, iniquity; on the other, blatant despoilment. A choice had
to be made. The commission did not want to make it: it has, like the Government, by means of a
sole derogation to the rules of communal estate in the Civil Code prescribed: that literary property
will be considered as a communal good with regard to the surviving spouse of the author, that is to
say only after the death of the author, thus leaving thought all its immunity, and justice all its
effect. Rather than mutilate a right or a faculty to make it fit into a framework that was not
prepared for it, it has preferred to create a new framework, within which the faculty remained
intact and within which the right was respected.
      The articles 4, 5, 6, 7, have as objective to regulate the mode of enjoyment and to fix the date
of the property of anonymous or pseudonymous works, to integrate into the guarantees of law
speeches, sermons, public lectures, as well as notes, commentaries, journal articles, and all those
laborious exercises of science, of criticism, or of taste, on works fallen into the public domain,
which, in giving a character and a special price to the editions, make them a property as inviolable
as any other. With regards to political speeches, publicity being their nature, the law delivers them
to propagation without limit, except in the case where, after having accomplished this political
aim, they change nature through their collection in anthologies.
      Some persons were of the opinion to add letters and correspondence. We did not want to.
We have considered that in thus determining in advance the property of the correspondence of
authors living or dead, we would run the risk of authorising a right of publication that public
morality reproves, or of forbidding a legitimate usage that decorum or necessity sometimes
demand. We did not want to forbid it or to permit it. We have placed letters in a category apart;
these are confidential manifestations in which the man and no longer the writer, devotes himself to
confidence and not to publicity, without any view of gain. This does not constitute, in our eyes, a
property whose condition can be regulated by a fiscal law; but a personality governed and
prohibited by the written laws regarding defamation, the abuse of confidence, and by the unwritten
laws of morality, of tact and of honour. One does not write the legislation of public conscience;
one reads it in the opinions and in the mores, dishonour is the penalty.
      Article 6 restricts the duration of the property of the State on the works published by its order
and at its expense to ten years. If we did not give these works of munificence and of utility at the
instance of their publication to the public domain, for which alone they are undertaken, it is solely
in order to respect and to preserve for a certain time the rights of the printer-editors whose
collaboration the State has drawn upon.
      We have retained thirty years of exclusive property for the academies and for the learned
bodies, even though their collections are printed at the State’s expense, due to this consideration:
that the members of these academies give their writings or manuscripts to these collections without
remuneration while nevertheless reserving the property over their own works, and that if these
collections fell by law into the public domain before the period of fifty years allocated to private
properties, these authors would find themselves deprived by the very fact of their generous
contribution to the work of their learned body or of their academy.
      We have fixed the same term for the property of academies on their dictionaries, due to the
exceptional and very-costly conditions that the incessant printing of this nature of works imposes
upon the printers with whom the learned bodies have dealt.
      The Government’s bill was silent concerning the diocesan bishops’ right of property or of
supervision on the Church, hour and prayer books for the use of their dioceses. The ancien régime
conferred on the spiritual heads a kind of perpetual property over the liturgical works by virtue of
which they alone and arbitrarily administered



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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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through works, security, a modest and too short future. The law can only do this, God alone grants
genius, genius only gives glory, work alone gives fortune.
      All of Europe, at this moment, is inspired by the same thought; it belonged to France to precede
Europe. Its great place in the world was drawn for it by the hand of its artists, by the quill of its
writers, greater and more uncontested than by the very sword of its soldiers. Could it leave in neglect
and in despoilment these powers of thought that have conquered so many empires of the human mind
for it? Ingratitude might benefit glory, for it renders it more touching, but it never enriches nations.
What do we not owe to these men whose heritage we have allowed for so long to be squandered? Five
or six immortal names are all a nationality in the past. Poets, philosophers, orators, historians, artists,
remain in memory the dazzling summary of several centuries and of an entire people.
      Montaigne plays as a sceptic with ideas, and puts them back into circulation in striking them
with a modern style. Pascal delves into thought not only unto doubt, but unto God. Bossuet pours out
the human word from a height from which it had not yet come down since Sinai. Racine, Moliere,
Corneille and Voltaire find and note all the cris de cœur of man. Montesquieu scrutinises the
institutions of empires, invents the criticism of societies and formulates politics. Rousseau impassions
it, Fenelon sacrifices it, Mirabeau embodies it and places it on the rostrum. Since then rational
governments are discovered, public reason has its legal organ, and liberty marches in step with ideas in
the light of discussion. Mores, civilisation, wealth, influence, government, France owes all to these
men: our children will perhaps owe everything to those that will come after them. The eternal and
inexhaustible patrimony of France is its intelligence. In handing over the generous part to humanity,
in reserving for itself this glorious part that makes its character amongst all peoples, had not the
moment come to constitute as personal property this useful part that makes up the dignity of letters the
independence of the writer, the patrimony of the family and the remuneration of the State?
      Allow me to add that the serious and legal constitution of literary, artistic and industrial property
is an act eminently in accordance with these democratic principles that are the necessity and the toil of
our times. This nature of property carries with it all that is missing from democracies. It is brilliance
without privilege; it is respect without constraint; it is grandeur for some without abasement for others.
We have abolished nobility; but we have not abolished glory. The dazzling gift of nature is accessible
to all classes like the other gifts of God. Genius that is born everywhere is the great leveller of the
world; but it is a leveller that elevates the general level of peoples. Literary property is above all the
fortune of democracy; glory is the nobility of equality!

Bill amended by the commission

TITLE I
Of the rights of authors on their writings

      Article 1. The exclusive right to publish a work or to authorise its publication by typography,
engraving, lithography or any other means, is secured to the author throughout his lifetime, and to his
representatives or legal successors during fifty years starting from the date of his death.
      Article 2. The author can transfer all or part of his exclusive right, not only for all or part of the
period of his lifetime, but also for all or part of the period of fifty years that will follow his death.
      If the transfer has not been expressly made, either for the totality, or for part of the rights secured
to the author, it is presumed to be made for one edition only.
      The number of copies of this edition will be fixed, in case of dispute, in accordance with the
common practices adopted for works of the same nature.
      Article 3. After the death of the author, the exclusive right for all of the time period he will not
have used will be transferred, following the rules of civil law, to the heirs that he leaves at the instance
of the opening of his succession.
      The exclusive right will be considered, with regard to the author’s surviving spouse, as a
communal good, unless contrary matrimonial conventions exist.
      Article 4. The proprietor by succession or by any other title, of a posthumous work, will enjoy
the exclusive right to publish it or to authorise its publication for a period of fifty years, starting from
the first edition.
      This right will be transferable to the heirs or legal successors of the aforementioned proprietor,
in the limit of the period of thirty years here above determined.
      Article 5. The editor of an anonymous or pseudonymous work will enjoy the exclusive right for
a period of fifty years, starting from the date of the first publication.
      If, before the expiration of this term, the author proves his identity, he will enter into the rights
that are secured to him by the articles 1 and 2.
      If this identity is proved after the death of the author, and before fifty years have passed, starting
from the first publication, the heirs or legal successors of the author will enjoy the exclusive right until
the completion of the aforementioned period of fifty years.
      Article 6. The exclusive right of the State over published works by its order and at its expense
will last ten years, starting from the date when the last part of the work would have been published.
      The right of academies and other knowledgeable bodies on the writings published in their name
and by their care will last thirty years, starting from the publication of the last volume of the work, and
starting from each volume for the anthologies of reports on diverse subjects or writings that are to
make up collections.
      The exclusive right of academies over the dictionaries composed by them will last thirty years,
starting from the last entry that they would have published.
      Article 7. The rights specified in the articles 1, 2, 3 and 4 are secured for the publication of
public lectures, sermons and other speeches pronounced publicly, which can not be published
separately, nor in the body of a work, without the consent of the authors or their legal successors.
      Regarding pleas and speeches pronounced in the two chambers, this consent will only be
necessary for their publication in an author’s anthology.

TITLE II.
Of dramatic works.

      Article 8. The dramatic works of living authors can not be performed on any stage, without the
consent of these authors.
      Article 9. After the death of the author and for lack of any agreements made, either with him, or
with his heirs or legal successors, the right to perform his work will belong to any theatrical company
duly authorised, provided it pays the heirs or legal successors of the author a remuneration equal to
that which the author received at the time of his death. The right to this remuneration will last fifty
years, starting from the death of the author.
      Article 10. Posthumous dramatic works, or without an author’s name, can only be performed
with the authorisation of the persons who would be their proprietors through succession or by any
other title.
      Their right will last fifty years, starting from the first performance.

[Middle column:]

      Article 11. Regarding the printing of dramatic works, the author’s rights and those of his heirs
or legal successors will be settled in accordance with title I of the present law.

TITLE III.
Of musical works.

      Article 12. The authors of musical works, their heirs, legal successors or surviving spouse, will
enjoy, for the publication of their works, by any means of reproduction, the exclusive right established
by title I of the present law.
      They will enjoy, for those of their works that will be performed in theatres or in public concerts,
the rights established by title II.

TITLE IV.
The products of the art of drawing.

       Article 13. The authors of drawings, paintings, sculptures, medallions, geographic, topographic
and hydrographic maps, plans and other architectural drawings, will alone have the right to reproduce
them or to authorise their reproduction by means of engraving, lithography, printing, casting or by any
other means.
      This right is secured as much to the aforementioned authors as to their legal successors, in
accordance with the rules established in title I of the present law.
      Article 14. The authors of works of art, mentioned in the preceding article, can transfer the
exclusive right to reproduce them or to authorise their reproduction, while nevertheless retaining the
property of the original work themselves. But, in case of the sale of the aforementioned work, the
exclusive right to reproduce it, or to authorise its reproduction by printing, engraving, casting or by
any other means, is transferred to the acquirer, apart from a contrary stipulation.

TITLE V
General provisions

      Article 15. All the rights that the present law grants to the inhabitants of the kingdom
[régnicoles] will be secured to the authors of works of literature, of science and of art published for the
first time abroad when in virtue of treaties the nation to which they belong will have secured
reciprocity to the authors of works published for the first time in France.
      Article 16. In the case where the rights that make up the subject of the present law are part of a
succession in escheat, a royal ordinance may, if they are not duly claimed by creditors, attribute them
to spouses or to relatives of the author, for a period that will not exceed fifty years, or make over the
aforementioned rights to the public domain.
      Article 17. The authors, theirs heirs or donees, whose exclusive right resulting from anterior
laws will not be exhausted at the instance of the promulgation of the present law, will enjoy the
advantages that it ensures as concerns the publication, the reproduction and the performance of works,
provided that they have not alienated in totality the exclusive right that was secured to them.
      In the case of the total alienation of the aforementioned right, the duration will be prolonged in
benefit of their legal successors.
      Article 18. The deposit prescribed by the article 14 of the law of 21 October 1814 is fixed at
five copies, as much for printed writings as for engravings, lithographs, maps, musical works with or
without lyrics and other works whose reproduction occurs by processes of typography, of lithography,
of engraving or by any other means.
      One of these copies will remain in the Ministry of Interior.
      Two copies will be deposited in the royal library and the two other copies will be placed in
favour of public establishments, in accordance with what will be prescribed by a ruling of the public
administration which will determine, amongst other things, the conditions of the deposit, as regards the
state of the copies, and will set the case where it might be necessary, in the interest of commerce, to
reduce to three the number of copies deposited.
      The deposit receipt, which will be delivered in accordance with the regulations, or a certified
copy of this receipt, will constitute the author’s or the editor’s title for admittance in court to prosecute
the counterfeiters.

TITLE VI.
Penal provisions

       Article 19. Whoever, in prejudice of the rights secured by the present law to authors and to their
representatives, would have published, printed, engraved or reproduced, in entirety or in part, works
and writings of any kind, drawings, paintings, sculptures, musical works or other productions of the
mind or of the arts, already published or still unpublished, will be liable to the penalties applied to the
offence of counterfeiting.
      Article 20. All counterfeiters will be punished by a fine of 300 to 2,000 francs, and will
furthermore be condemned to pay to the proprietor damages equal at least to the value of the original
edition from which the counterfeit was made.
      If it is a still unpublished work in question, the damages will be determined from the selling
price of books of the same nature.
      In the case of a repeat offence, the fine will be 600 to 4,000 francs; the counterfeiter will
furthermore be punished by an imprisonment that will not exceed one year, and his licence may be
withdrawn from him.
      Article 21. Whoever will have knowingly introduced onto French territory, or sold copies of
editions counterfeited abroad, of works published for the first time in France, will be punished by
penalties recorded in the preceding article.
      Whoever would have knowingly sold a counterfeit work will be punished by a fine of 50 francs
to 1,000 francs, and condemned to pay damages towards the civil party that are determined by the
Courts, as it is recorded in article 18.
      In the case of a repeat offence, the fine will be 100 francs to 2,000 francs, and the delinquent will
be furthermore punished by an imprisonment that will not exceed three months.
      Article 22. In the cases anticipated by the preceding articles, the counterfeit copies and the
plates, casts and matrixes will be confiscated.
      The civil party may request that these objects be destroyed in his presence or in that of his agent,
or that they be attributed to him in deduction of his indemnity.
      Article 23. The breaches of the provisions of the articles 8, 9 and 10 of the present law will be
punished by the penalties recorded in the article 428 of the Penal Code.
      The articles 425, 426, 427 and 429 of the same Code are repealed; they will be replaced by the
articles 19, 20, 21 and 22 of the present law.
      Article 24. The breaches of the present law will be automatically recorded by the Public
Ministry, by the auxiliary officials of the King’s prosecutor, and, furthermore, by the customs officials
for the objects coming from abroad; all of which without prejudice to the legal proceedings instituted
by request of the civil party.
      Article 25. All the proceedings of search or seizure, performed as a matter of routine or on the
complaint of the party claiming to be injured, must, within forty-eight hours, be conveyed to the
King’s prosecutor.

[...]



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[...]

      M. RENOUARD. Sirs, the law that we are considering is destined to govern numerous private
interests; it resolves an order of questions in which society and civilisation are invested; it is also a law
of industry and public economy. On each of these accounts it is worthy of the most serious attention.
      My desire is not to enlarge the circle of discussion. On the contrary, when each step might place
us face to face with the most elevated problems of social philosophy, specifying the questions is no less
useful than expanding them.



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I will therefore try to limit myself to some fundamental and practical points.
      I was surprised to read, in the eloquent report of your commission, that all is here to be
discovered and created. Having long been examined by very-great minds, this matter is today
regulated by the legislation of all civilised peoples. The task that remains [for us], and it is still a
rather immense task, is to choose, amongst the ancient and numerous materials that the experience of
several centuries has amassed, those that could serve to edify a law, of which one of the principal
merits should consist of not being entirely new, and to put this part of our law in the most complete
harmony with our general legislation and the needs of the present society.
      On this subject we have, in France, a legislation that must be improved, but that it would be
unjust to treat disdainfully; for it rests on principles that are true and necessary to maintain. I
recognise, without any hesitation, that the Government has acted very wisely in proposing this new
law, whose first bill is due to a commission formed in 1825, to the Chambers; but I would have wished
that this law, better studied in its details, had not left many difficult questions without solutions. Our
scattered laws were in need of revision and codification, above all of completion; they present some
inconsistencies and numerous lacunae; but they rest upon the true fundaments of law. Now, it is these
fundaments that the theories of your commission wish to shake, these truths that it wishes to
problematise: what it neglects are the difficulties of execution and of detail that were necessary to
address.
      Let us not exaggerate. Your illustrious rapporteur over-amplifies our task by saying that we
have to write the code of thought. We are writing but one of the chapters: that which settles the rights
of each over material things, on the industrial, transmissible and venal productions that are born from
its publication. There is no offence against the dignity of the letters, the sciences or the arts to say that
we are here creating a law of industry, and nothing else.
      Indubitably, to write the industrial rights, deriving from works of the mind, one must go back to
the creation of these works, and question their noble nature; one must treat with recognition and
respect this accumulation of wealth, no less social than individual, with which the works of the mind
endow all humanity; but the conclusions that one inevitably ends up with, no matter what path one
takes, concentrate on these questions: Who will produce the material instruments of thought? Who
will have the right to the pecuniary profits of this production?
      The works of the mind are of the public domain or of the private domain: of the private domain
when the right to manufacture them and to sell them is reserved to certain persons invested with an
exclusive right to this effect; of the public domain, when any individual, member of the public, can
reproduce them and sell them. The selling price of works of the public domain is composed of two
elements: the expenses of production; the profits and risks of the entrepreneurs. In the price of works
of the private domain a third element enters in addition to the two others: the profit of the privileged
proprietor, author, editor, or other.
      The report of your commission was mistaken when it identified this latter profit with that of the
editor; for they are independent of each other, and the profit of the editor always enters into the
constitution of the price, whether the book belongs to the private domain, or whether it finds itself
incorporated within the public domain. To believe that an editor would be content with a lesser profit
on a book of the private domain, already laden with an exclusive right and protected by a privilege,
than on a book of the public domain, whose price is levelled by the competition, is to create for oneself
an illusion that the most constant experience has always refuted.
      The fundamental and incontestable fact from which one must depart is that the works of the
private domain are necessarily more expensive than the works of the public domain, and that this
excess cost consists precisely of the portion of cost that the exclusive right represents.
      This being said, the question to consider is reduced to knowing up to what point, and within
what limits it is just or unjust, useful or detrimental, to increase the price of works of the mind, so that
this increase benefits a private domain.
      In the industrial ancien regime, the question was more complicated. Two privileges, that is to
say two increases, were claimed: one by the authors, as the just price of their work; the other by the
manufacturers or merchants, as a protective right necessary for the exercise of their commerce.
      Our modern legislation has suppressed the commercial privilege and has adopted as principle
free competition. It has retained, and it was right to retain, the privilege of the author, the principal
question that we are faced with today consists of knowing up to what limit we will extend the duration
of this latter privilege.
      By the law of 24 July 1793, the exclusive right lasts during the entire lifetime of the authors, and
ten years after their death.
      By the decree of 5 February 1810, the period of the exclusive right that follows the death of the
author was increased by the entire lifetime of the widow if matrimonial agreements give her the right
to it, and extended to twenty years after the death, either of the author, or of the widow, if the author
has left children.
      The inequality of duration that results from the decree of 1810 is subject to difficulties of
execution, and leaves incertitude as to the moment when the rights of the public begin. The system of
the law of 1793, that of a fixed and uniform period is greatly preferable. The Government’s bill
returns to this; but, instead of limiting the right to ten years, it extends it to thirty years. This figure
appears more than elevated enough to me: it has been adopted by the Chamber of Peers after thorough
discussion. I believe that we would do well to stick to it: my sole worry is that it is too much to grant.
      Your commission proposes to extend it up to a period of fifty years. And it is with regret that it
stops at this limit. It is for them a costly concession. In its eyes, the only just solution would be an
exclusive perpetual right. Intelligence will only be emancipated the day that one replaces these words:
fifty years by the word always.
      This claim is not new. It is the favourite argument repeatedly upheld by numerous writers; not
only by illustrious writers who had virtues to speak of the future, but also by authors (I am only
speaking of those deceased) much less concerned than they imagined by the question, although they
had the candour to preoccupy themselves with their furthest descendants.
      If the necessity of limiting the exclusive right to a temporary duration has the misfortune of
having against it the majority of writers, its compensation is having for it all the legislators of all the
nations: France, England, Germany, Spain, Russia, America. The opposite attempt was made in
France in 1777 when the privilege of writers overcame and had to overcome the privilege of
booksellers, and in Holland, from 1796 to 1811 and from 1814 to 1817; but in Holland, as in France,
one did not delay in freeing oneself from the ties of the system of perpetuity.
      Your commission does not put into practice the perpetuity of the exclusive right, but it protests
in its favour. If the perpetual right exists, it is wrong to abandon it; if it does not exist,

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it is wrong to shake by protestations the foundations of the law that it itself proposes to us.
      If the truth of law is for perpetuity, our present laws, the laws that govern all civilised peoples,
are iniquitous and illegitimate acts: the bill of your commission is a pact with iniquity; it postpones the
despoilment of families by a few years; but come the term of half a century, it invades their legitimate
patrimony and expropriates them without any compensation.
      When a theory belies practical universal reason, it is not the common sense of all peoples that
one should doubt, but the truth of this theory.
      I would be abusing the attention and the instances of the Chamber if I limited myself to
demonstrating how it is a confusion of words that has engendered a confusion of ideas. Instead of
observing, in the transmission of thought, that which is, that is to say the delivery of a service to
society, a service which gives the right to remuneration from it, one has taken metaphors for
arguments, and one has thought to reason by assimilating the exploitation of a book to the possession
or the clearing of a field, to the maintenance or the renting of a house or of a piece of land. I do not
here dare enter into the development of this truth, as evident as it is to my eyes: I limit myself to
summarising it in saying that the reproduction of thought is not by its nature either an appreciable
thing, or a good whose social interest demands its concentration into the hands of exclusive and
determined proprietors.
      What is reassuring for the conscience of the Chamber is that everyone, by conviction or quite
grudgingly, agrees to offer it only a temporary right.
      Everyone also recognises that the duration of this right must embrace two periods.
      The first period is that which comprises the entire duration of the lifetime of the author. I do not
think that, for this period, anyone contests the legitimacy of the exclusive right that our current
legislation establishes. The author has a right to this, not only as just remuneration of his work, but
also because his responsibility and his conscience are concerned that he remains the absolute master of
his intellectual communications with the public.
      Will the second period be thirty years, as the Government and the Chamber of Peers propose?
Will it be fifty years, as your commission proposes, in taking up an amendment that the Chamber of
Peers rejected? In other words: is it sufficient for the just remuneration of the author that his works be,
during thirty years, rendered more expensive for the benefit of his family or of his concessionaires?
Or must the circulation of his works, during fifty years, be burdened by this increase?
      I openly recognise two things: the one, that the author should be able to alienate the exploitation
of his work for a period even posterior to his death; the other, that the family of the author should, if
the aforementioned has not thought relevant to alienate his work, profit from his works. Your
illustrious rapporteur has provided, in support of these propositions, and notably of the latter,
admirable arguments [développements] that I do not wish to weaken by reproducing them.
      But the public also has its interests and its rights: its interest in the cheap cost of the work is
evident and does not need to be demonstrated; its right is no more contestable.
      In fact, if the public owes the author, does the author owe nothing to the public? In return for the
communication of his ideas, has not the author received in exchange influence, honour and profit from
the public? If the author reaps glory, it is he himself who merits it, but it is the public that grants it to
him and reflects brilliance on his name and on his children. This debt of recognition is certainly
something, and the noblest minds of all the ages have never refused the burden; but this debt is not the
only one. These ideas that genius has elaborated and dressed in the most admirable forms, were
received from the public, and it is just that the public domain retrieves them sooner or later, and
transfers them down even to the pauper who cannot pay for an expensive book. Without the Bible and
Homer, without Racine and Chateaubriand, would we have M. de la Lamartine?
      When the author no longer exists, must it be that the passion, the capriciousness, the parochial
attitude of the heirs be allowed to stifle his works? That a clique, that an influential faction have the
possibility to buy them so as to destroy them? My honourable friend, M. Berville, has indicated to you
examples of which one could multiply the citations, and that prove that it is not a vain hypothesis.
Must it be that the greed of an heir or the speculation of an assignee elevates them to such a high price
that the circulation would be notably slowed down? Is it not to authorise the revolt against the will of
the author, against his glory, against that which a writer, a man of honour [homme de cœur], holds as
dearest, the success and the propagation of his ideas? The more we extend the term, the more the
objection acquires strength. The cult of a widow or a son for the memory of a husband or a father
protects the thought of the author during the period that closely follows his death. But after fifty years,
when the distance of time will have lessened affections, when speculation will have attracted into
foreign hands properties that are truly useful, we will not then fail to feel how burdensome the
obstacles of a privilege are, and all the escorting accusations of plagiarism that secure and accompany
it.
      An exclusive right, that is to say an increase in price during thirty years following the author, is a
heavy enough burden for the public and a sufficient advantage for the families. Of all the existing
laws today, only one prolongs the exclusive right to this term: it is the Prussian law of 11 June 1837; a
law which is very well constructed, and from which, to mention in passing, it is regrettable that one
has not drawn more from in the drafting of this bill. Perhaps one has not even tried enough to manage
to organise a better system, often proposed, never attempted, which, during the period following the
death of the author, would combine the rights of the public with those of the family, allowing every
person, in exchange for a certain price, to reproduce the work.
      Your commission proposes that you establish the bases of an international law. It is a noble and
useful thought; we should consider whether we should limit ourselves to the cases in which works,
already published abroad, were to be published anew in France. But whether one restricts or one
extends the limits of international law, the fact remains that, to found it on whatever bases that might
be, one should keep our legislation in harmony with that of the other peoples who have modelled
themselves on our legislation and that of England. To extend the second period of the exclusive right
up to fifty years, when, in the foreign law that most favours this right, it only reaches a maximum of
thirty years, is to greatly increase the difficulties, already so great, of establishing an international law.
      The rights to be granted in France to foreign authors will provoke grave difficulties in the
discussion of the articles.
      It will also be then that I will indicate, in the interest of the public, the necessity of maintaining
the guarantees that the decree of 1st Germinal Year 13 made concerning posthumous works;
guarantees that I believe the bill has wrongly repealed.
      The bill says very little regarding the difficulties which

[Right column:]

daily arise between the proprietors of the exclusive right and the assignees. Here exist lacunae that
one must attempt to fill.
      I would also have wished that the foresight of the law were brought to bear on the cases, so
frequent nowadays, of the collaboration of several authors on the same work. As the need to produce
quickly and to attract repute at short intervals has increased, as the calculations of pecuniary
exploitation have prevailed even more over literary pride, the associations of authors have multiplied.
Serious difficulties of law are born of these works created in common. The bill does not say a word
about this.
      Two titles of the bill grant a right of the same extent and of the same duration to the arts of
drawing and to musical productions as to literary works. With this legislation, many years must still
pass before the possibility of drawing a head from a painting of David to give it as a model to school
children will belong to everyone. One was even concerned with tracing no rule for delineating the
vague borders that separate artistic production from either industrial or mechanical production. It is
here, however, experience has demonstrated, that which, in all this matter, opens the most fertile
source of judicial disputes. Our collections of jurisprudence are filled with legal proceedings sustained
or provoked by a sole branch of industry, that of the manufacturers of bronze. The bill of your
commission gives to the proprietor of the model of a clock or a vase an exclusive privilege that lasts
all his life and fifty years after his death. This exaggeration seems to me to surpass all bounds.
      The bill of the Government had, on one point, touched upon an analogous matter. There exists a
law of 18 March 1806 that grants to the proprietor of a manufacturer’s drawing the possibility to
reserve the exclusive property for himself during one, three or five years, or perpetually. The
Government, without regulating all this matter, proposed through its Article 14 to limit this privilege
to a maximum of five years. The commission has excised this article; it has found here this perpetual
property that is, in its opinion, the emancipation of intelligence. It was careful not to remove it. It has
allowed perpetual property to subsist for the drawing of a fabric or the pattern of a curtain, which the
English legislation thought sufficient to protect by a privilege that was first of two months and that
was extended to three months!...

      M. DE LAMARTINE, rapporteur. That is false.

      M. RENOUARD. Then the commission has restored this article?

      M. LE RAPPORTEUR. We have removed it owing to this consideration that, as you state, the
limit being very diffuse between the art and the trade, there was here a question of industrial property
that it was not for a commission on literary property to consider.
      M. the Minister of Commerce having been willing to be heard by your commission, he tells us
that he has been apprised of a bill relating to industrial property, in which the majority of the solutions
that you propose will be considered.

      M. RENOUARD. I understand that one separates questions relating to the property of
manufacturer’s drawings from the law that is the subject of our deliberations; but, when we come to
the discussion of the articles, I hope to be able to easily establish that there is no disadvantage in
placing in the current law an article that departs from this law of 1806. The Government proposed it,
and there is even less disadvantage in doing so given that in the bill in hand, all that relates to the
property of the art of drawing is regulated, even for the applications that are made of it by industrial
manufacture.
      The industrial proprietors that lay claims, these manufacturers of bronze that I spoke of earlier,
these proprietors do not base themselves on any other text than on the law of 1793. I understand that it
would be good to separate this law in two; but since the opportunity presents itself, since we are able,
by a simple article, to dispose of this perpetual property of drawings of fabrics or of manufacture, why
not do it as of now? Why maintain this unjustifiable anomaly in our legislation? The most sublime
discovery will be remunerated by a patent of fifteen years; and I do not ask that one remunerate it
more: thirty years or fifty years after the death of the most illustrious writer, the right to reproduce his
work will belong freely to the public; and the drawing of the carpet on which we walk, the edge of the
fabric on which we sit, would confer an exclusive right, for perpetuity, for all the ensuing centuries! I
do not understand the law of 1806; but without the explanation that was just given, and to which I
cannot yield, I understand even less that one refuses to amend this law.
      I will not prolong these observations; I suppress many details into which I could delve, and I
conclude by a single consideration.
      When free competition was introduced into our general legislation on the remnants of old
privileges, a new industrial law was established. Today we are quietly preyed upon by a reaction that
endeavours to find new means of killing competition. It is here is one of those general plans that no
individual thought has either expressly premeditated, or clearly conceived; all the more formidable in
that those who serve them are rarely conscious of their work.
      Today, under the patronage of the most elevated and sincere sentiments, the most civilising
thoughts, under the auspices of glory, nobility of equality, privilege advances to lay its hand on the
books and on the productions of the arts. Each bringing forth of genius, each work of the mind, to
whatever degree of inferiority it might be placed, will have for a long time and forever, if possible, its
exclusive owner [exploitant]. No longer ask that the price of books diminish with the expansion of the
Enlightenment, and that competition make them decrease so as to be affordable by the poor.
Henceforth every creation, great or small, of intelligence, will have its special farmer who will not
allow the price to devalue and who will ward off laymen should they desire them inexpensively. The
love of money, which has already invaded literature enough, will intensify, and will completely
degrade it. We will enrich the families of authors; but we will diminish their glory. I am wrong to say
that the families of authors will be enriched: speculation will soon have absorbed these farms of
intelligence by the attraction of its capital. The old privileges of the book trade, against whose
prolongation the parlements in the 16th century pronounced memorable judgements, will be reborn, in
new forms, better secured by the more efficiently repressive force of our modern societies, and armed
with a longer duration. They will construct fortunes without work, to the detriment of civilisation;
they will abandon the fate of books to all the rich passions which, if it is in their interest, will purchase
them to destroy them.
      If the amendment of the commission that extends the duration of the privileges to fifty years is
adopted, I will vote against the bill.




Translation by: Silje Normand (pp.1-3, 6-7)

    

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