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 of 70 total




634


[Left column:]

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

[Right column:]

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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