PRIMARY SOURCES

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(1450-1900)

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Louis d'Héricourt's memorandum (1725-1726)

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Primary Sources on Copyright (1450-1900)

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Identifier: f_1725b

 

Commentary on Louis d’Héricourt’s memorandum

 

Frédéric Rideau*

Faculty of Law, University of Poitiers, France

 

Please cite as:

Rideau, F. (2023) ‘Commentary on Louis d’Héricourt’s Memorandum (1725-26)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

 

1. Full title  

2. Abstract

3. Parisian booksellers under pressure 

4. The author’s literary property of the 1720s and its object

5. Book trade privileges redefined

6. Writers like other artisans? Louis d’Héricourt’s memorandum and after.

 

 

1. Full title  

Memorandum by Louis d'Héricourt, addressed to Monseigneur the Keeper of the Seals

 

2. Abstract

In the 1720s, Louis d'Héricourt became the lawyer to Parisian booksellers confronted by the continuous protests by their provincial counterparts against extended privilege durations, but who also worried about any potential changes in the absolutist policy pertaining to the book trade strengthened by Louis XIV and the Colbertian administration (f_1690s). The political context of the Enlightenment and the succession of Louis XV indeed provided some uncertainty. In this perspective, the memorandum submitted by d’Héricourt to the Keeper of the Seals initiated, in unusual terms, the defence of the exclusive rights of the Parisian corporation, under the legal qualification of a literary property right based upon the “labour” of the author himself.  Such a defence, which seemed based on Lockean ideas, had also some effects on the traditional definition of book privileges. For these reasons, the Louis d’Héricourt’s memorandum is one of the most influential writings of the literary property debates of the eighteenth century.

 

3. Parisian booksellers under pressure

At the beginning of the eighteenth century, essentially linked with censorship policies, what Jean Quéniart has called the provincial “anaemia” in the book trade was still largely profitable to the Parisian booksellers. This situation had been fostered by successive royal legislation (1686, 1701, 1723 – respectively f_1686, f_1701, f_1744 –), which all remained particularly flexible pertaining to the conditions under which the duration of book trade privileges could be extended for all types of books.[1] However, this status quo, relying on the traditional nature of these royal favours, but confronted to the Enlightenment political priorities (and tensions), seemed increasingly fragile: as shown at the time by the debates surrounding the making of the Statute of Anne (see uk_1710), the encouragement of learning, in particular, was supposed to benefit from a fair and more open competition within a trade still limited by old medieval corporatist structures.[2] In France, under the “absolute” monarchy, the direct control of writings, as one knows, would persist until the French Revolution, but following decades of contests with their provincial counterparts, it appears that Louis XV’s administration became increasingly disturbed by the Parisian booksellers’ ambitions to preserve their control over the whole literary market. A good example of this royal irritation is illustrated by the preamble of a decree of April 1725 (f_1725), concerned with the “negligence”, and even the “greed”, of several booksellers, and the abusive privileges they were still obtaining to prevent further editions of the same books by trade rivals.[3] Such manipulations had some consequences on the book prices, to the detriment of the trade and the public.[4] Ultimately however, the decree did not bring any clarifications on the conditions allowing privileges on books already published to be extended, and the main regulations of February 1723 would be extended to the whole kingdom in March 1744.[5] Yet, the severe words used in this royal call to order, along these considerations to support a more open trade, constituted a further warning to many Parisian booksellers which certainly retained their attention.[6] They were therefore compelled to justify their hegemonic position through substantial theoretical bases, consistent with ancient corporative usages, but also on an argumentation which would be irrefutable for the new Enlightenment era. Thus, three decades after the path initiated by another lawyer, Aubry, for the Communauté des libraires et imprimeurs de Paris (see f_1690s), Louis d’Héricourt, avocat au Parlement de Paris since May 1712, but also an active contributor to the Journal des Sçavans,[7] chose to develop his plea upon the claim of a natural right of property.  

In doing so, he clarified the ambiguities of his predecessor, relying on the sole author as the source of his right and freedom to control the “Text of his Work”.

 

4. The author’s literary property of the 1720s and its object

Louis d’Héricourt, in a cardinal formulation which was to shape the literary property debates of the next decades, started thus his argumentation by claiming that a “Manuscript”, as long as its content is compliant with the censorship royal requirements, “is so much the property of its Author, that it is no more permissible to deprive him of it than it is to deprive him of money, goods, or even land…”[8] It is indeed the fruit of his “personal labour”, and within a society where individuals  are naturally called to unite themselves, “[having] the right to live by their labour” is an elementary “liberty” which should be secured in the most absolute way.[9] Already considered by Aubry, who defended perpetual exclusivity over the reproduction of new books, the intimate link between freedom, labour and property was henceforth confirmed and established at the heart of the Parisian lawyer’s reasoning, but here only rooted in the author’s labour rather than in the bookseller’s “industry” (or both – see f_1690s). Locke’s justifications of private appropriation – occupancy, labour – presumably fed the principles supported by Louis d’Héricourt,[10] in particular the claim that when land is cultivated, it is “Labour then which puts the greatest part of Value upon [it], without which it would scarcely be worth any thing.”[11] Blackstone, during the English literary property debates of the second half of the eighteenth century, would brilliantly summarize the analogy with a right on “literary compositions”, that it is “a Species of Property, which, being grounded on Labor and Invention, is more properly reducible to the Head of Occupancy than any other; since the Right of Occupancy itself is supposed by Mr. Locke, and many others, to be founded on the personal labor of the Occupant…[12] However, the great English philosopher was not mentioned by Louis d’Héricourt in his memorandum, who still had to reshape a thought ideally elaborated from the possession of land (and labour on it), to an unprecedented object of property, ethereal, incorporeal.

What literary property would protect was indeed very challenging to conceive, a fortiori in 1725. It had to encompass books of any kind, since it corresponded to the book trade organization on which d’Héricourt still had to rely, with privileges discretionarily granted since the sixteenth century on a case-by-case basis (see f_1515). This empiricism was nevertheless insufficient when claiming in theory a property right on all literary compositions emanating from the author’s personal labour. In this perspective, the initial use of the word “manuscript” by Louis d’Héricourt was not surprising, since its original (unique) copy constituted at the time, in a way spontaneously and according to the trade usages, the most obvious and symbolic medium through which the literary work itself was contractually transferred.[13] In other terms, booksellers knew spontaneously that when a manuscript was acquired from his author, it implied the right – along the consecutive obtention of a privilege from the king’s administration – to publish it exclusively. Since subtle considerations on the dematerialisation of the object of literary property were obviously premature, it is interesting to notice in d’Héricourt’s mémoire the synonyms alternatively used for “manuscript”. The more general word “ouvrage”, here translated as “work”,[14] but in his context more in the sense of “book” (“livre”), was thus chosen as expressing the literary work and the link to its writer: the author is the only “Maître de son ouvrage”,[15] as he is the only master of his “Manuscript”. Louis d’Héricourt went however further away from references to a corporeal medium, by adopting the phrases “Texte de cet ouvrage[16] and “Textes des Livres”, still simultaneously with “manuscrit” (or “ouvrage”) – “The Manuscripts which Booksellers purchase from Authors, as well as the Texts of Books…” –[17] or even alone:[18] formulations and terms, in fact in both cases, which seemed actually to relegate any physical medium as a means of proof in juridical transactions, that is to say the actual transfer of the literary work agreed by the author with all its implications, starting with the obtaining of a privilege. 

More sophisticated reflexions on what was a “text”, from its conception to its realisation, would have to wait the second half of the eighteenth century (and after),[19] but again, d’Héricourt certainly set the bases upon which these future debates would be held, as was his renewed, not to say revolutionary, definition of book trade privileges.

 

5. Book trade privileges redefined

Although the lawyer Aubry was understandably – under the reign of Louis XIV – particularly cautious about how to discuss, with the expected deference, “those [royal] acts of beneficence”, his definition of privileges for books newly published – “sortes particulières” (see f_1690s) – was already grounded on property claims, in hope for perpetual exclusivity. From Louis d’Héricourt’s memorandum, this conception of the royal favour was rationalized in explicit terms, with broader political implications. The obtaining of of a book trade privilege, as long as the original manuscript had been legitimately transferred, was indeed being reduced to a formality, an “authentic approval” (“approbation authentique”).[20] Of course, privileges remained necessary “to provide Safety for the Bookseller and to place him above molestation should a Work subsequently be found to contain something contrary to the ideas of the government”,[21] but as long as this requirement concerning religion was satisfied, since they only secured pre-existing property rights, it was understood that an illimited duration had to be automatically assured to their legitimate holders.[22] In a way, it echoes an approach soon adopted across the Channel by the London booksellers to explain the relationship between the Statute of Anne and the literary property at Common law, the legislation of 1710 being itself essentially conceived as an additional, but essential, protection for authors and their “purchasers”.[23] On that matter, Louis d’Héricourt distinguished the consequences of the acquisition of land, which were much easier to protect from potential “evictions”, and the effects of the acquisition of a “manuscript”, involving “risks” which are “considerable”.[24] In other words, the unusual and vulnerable nature of the “Text of a Work”, when spread to the public, implied that the true enjoyment of literary property was impossible without such a protection, from a book trade privilege, or any tutelary act from a legitimate political institution.

The absolute sovereign discretion with which the king was supposed to grant his favours was therefore circumscribed by an absolute natural property right, these rules being “founded in justice and reason”.[25] Literary property secured by privileges served the common good, insisted d’Héricourt, stimulating authors and booksellers in their work “for the glory of his Realm, and for the benefit of his People”.[26] If this transformation of the royal prerogative was still at the time politically unacceptable, the king himself, in the last decree on the duration of privileges of the Ancien Régime (see f_1777a), would nevertheless endorse Louis d’Héricourt’s redefinition, upon the peculiarity of the author’s labour.

 

6. Writers like other artisans?[27] Louis d’Héricourt’s memorandum and after.

At the edge of the Enlightenment, it can be asserted that without the specific context of the modern era and the rise of “individuation”, such an influential memorandum, with such an absolute conception of authorship, would not have been possible. Indeed, it raises the question of the emergence of “possessive individualism” and the consequences of this evolution on the literary property debates, a question also largely discussed by authors.[28] What Laurent Pfister has well synthetized as a theory “which intertwined with an emergent discourse concerning the creative individual.”[29] “Creation” was indeed initially reserved to God, and “to some exceptional artists” during the Renaissance, until the eighteenth century, when it had been “more readily extended to all men”.[30] On this modern individualistic path, with a “new significance” attributed to the “concept of originality”, Edward Young, notably, is often mentioned as an important step.[31] Such conception of authorship, and the new revendications it conveyed, has also been analysed, to summarize very roughly, as having acquired a meaning corresponding to a specific historical period and socio-political environment, or to what Foucault had initially called épistémè, at the time of Les mots et les choses (1966) and the conference he originally gave in 1969, What is an author?[32] Under a broader perspective, writers, like other artisans  living and working within a collective body, are thus producing the expected discourses of their time. Ultimately, it implies that if such of conception of authorship had emerged, with all the rights claimed with or from it, the way they were assured could be conditional, depending on these fluctuating structures, away from any “essentialist” justifications or “prophecies”.[33]

Yet, authors’ “search for autonomy and emancipation” (G. Petrone, about Plaute) [34], its sources, remains difficult to seize, as are the seeds of “modern individuation”.[35] As Roger Chartier also pointed out, Foucault’s claim that the modern “author function” could be first identified by writers’ criminal liability for their texts – a “criminal appropriation” – , rather than from any property and private revendications, is not supported by any precise dating or chronology.[36] In France, in fact, one of the very first book trade privileges, granted to an author in 1507, at a time royal favours did not serve directly censorship interests, was presumably related to personal claims over his text, and under his name.[37] Besides, following the invention of the printing press, as a new trade was rapidly expanding, the corporatist structures, organized exclusively for printers and booksellers, certainly made authors less visible, or at least invisible within this new economic environment.[38] Until, of course, Louis d’Héricourt thought necessary to give to the singularity of their “labour” a fuller legibility. Ironically, the Abbot Blondel thus regretted, at the exact same time, the persisting “oppression” against “people of letters” from these de facto “masters of literature” – the Communauté des libraires et imprimeurs de Paris –, since they never united themselves in a “company” (“un corps”) like these “base (“vils”) artisans”.[39] 

But the literary property justifications were now sufficiently established for further developments. As seen, Locke certainly offered to Louis d’Héricourt the relevant words to support a “natural” freedom he thought appropriate to use against the royal administration, through the symbol incarnated by the right of property. In doing so, more than sticking to a theory for itself, he was able to provide a powerful and convincing plea, not only for his clients, but also for future authors and even the king. By using the comparison with property on land, but essentially reduced to its effects – a book is not a land or any other goods (see supra), but the freedom to make profit from it is as incontestable than with these corporeal things – he was already announcing Diderot’s Letter.[40] His demonstration was, however, double-edged  because it could also imply that an author is not only a farmer working in his “meadow” or in his field.[41] And in August 1777, the king distinguished the author as the sole holder of a perpetual right on his work, to keep it or to sell it, even alone at home, while, to the “advantage of the public” (or for “the cause of enlightenment”…),[42] ironically again, booksellers and their Communautés could only expect to be granted, like inventors a few years before, a drastically reduced right.

 

7. References

Chartier, R., Culture écrite et société, L’ordre des livres (XIVe – XVIIIe siècle) (Paris : Albin Michel, 1996)

Hutchinson R., Locke in France: 1688–1734 (Oxford: The Voltaire Foundation 1991)

Mortier R., Clartés et ombres du siècles des Lumières (Geneva: Droz, 1969)

Pfister, L., “Author and Work in the French Print Privileges System: Some Milestones”, Ronan Deazley, Martin Kretschmer and Lionel Bently, ed., Privilege and Property, Essays on the History of Copyright (Cambridge: OpenBook Publishers, 2010)

Woodmansee, M., “The ‘romantic’ author”, I. Alexander and H. T. Gómez-Arostegui, ed., Research Hanbook on the History of Copyright Law (Edward Elgar Publishing : 2016) 

 

* My sincere thanks to Dr Elena Cooper for her precious editorial assistance on this commentary.



[1] See indeed, for a good panorama of this crystallized situation at the end of the seventeenth century, J. Quéniart, “L'anémie provinciale”, in Histoire de l'édition française, Le livre triomphant, 1660-1830, 4 vols., Roger Chartier and Henri-Jean Martin, ed. (Paris : PROMODIS, 1983-1986), 2 : 282-293.

[2] On the debate soon concerning, in France, the necessity for the nation to be “enlightened” by the truths revealed by the Reason, see notably our commentary on Condorcet’s Fragments sur la liberté de la presse (in particular n 2 – we rely on R. Mortier, Clartés et Ombres du siècle des Lumières (Geneva: Droz, 1969)).

[3] Preamble of the Decree of the conseil portant réglement sur le fait de la librairie et imprimerie, 10 April 1725, reproduced in Recueil général des anciennes lois françaises depuis l'an 420, jusqu'à la Révolution de 1789, vol. XXI, Isambert, Decrusy, Taillandier, ed. (Paris : Belin-Leprieur, Plon, 1821-1833), 287 (f_1725). On the decrees of 1777, which reorganized, with similar effects than Donaldson v. Becket (uk_1774) in terms of economic consequences, the book trade, see f_1777a.

[4] Ibid.: the king was indeed speaking of the “bon marché” of books, in particular the affordable ones which are the most useful to the public.

[5] About this statu quo, see f_1744 – the confirmation of the 1723 regulations –, although from Malesherbes’ direction of the book trade administration, between 1750 and 1763, a more liberal era would foster the multiplication of the “permissions tacites” to the benefit of the provincial booksellers, as they would recall in their memorandum in 1776 (Gaultier’s memorandum for the provincial booksellers, f_1776, see 37-8, n 16 on Lamoignon de Malesherbes).

[6] See L. Pfister in “Author and Work in the French Print Privileges System: Some Milestones”, Ronan Deazley, Martin Kretschmer and Lionel Bently, ed., Privilege and Property, Cambridge: OpenBook Publishers, 2010), 128, who sees the April 1725 decree as a trigger for d’Héricourt’s memorandum.

[7] Louis d’Héricourt (or Louis de Héricourt), born in Soissons in 1687 (he died in 1752), apparently earned his “eminent” reputation through his writings more than for his pleading skills, as pointed out Etienne Choron, for the Société historique et archéologique de Soissons: E. Choron, Notice sur la vie et les ouvrages de Louis de Héricourt - Extrait du Bulletin de la société historique et archéologique de Soissons (Laon: Imp. E. Fleury, 1863), 3 (also 8-9, where he is described as an “avocat consultant”). About his contribution to the Journal des Sçavans, see, ibid., in particular 12-20. He has also worked in 1723 to a “augmented” edition of Les loix civiles dans leur ordre naturel, le droit public et legum delectus, from Domat.

[8] Louis d’Héricourt, 2.

[9] Ibid.

[10] On the great influence Locke’s philosophy had in France, see for example R.Hutchinson, Locke in France: 1688–1734 (Oxford: The Voltaire Foundation 1991).

[11] John Locke, Two Treatises of Government (London 1690), 261, para 43. Locke even quantified the value brought by labour on original common land, indeed stating that, of “the products of the Earth useful to the Life of Man, [nine-tenths] are the effects of labour.” (ibid., 258–59, para 40).

[12] The Cases of the Appellants and Respondents in the cause of Literary Property before the House of Lords, 36 (see uk_1774b) (and taken from the Book II – Title to Things Personal, Chapter XXVI, Of Title to Things Personal by Occupancy, of the Commentaries on the Laws of England).

[13] Unfortunately, the agreements between authors and booksellers were private deeds, meaning that their availability, as primary sources, is rare, even for the eighteenth century. On these contractual relationships, see the Sieur d’Anville’s contract  (f_1759).

[14] Translated on f_1725b by Andrew Counter… The word ouvrage, because less specific than “manuscript” (the original manuscript) is therefore encompassing the latter.

[15] Lous d’Héricourt, 3 (author, as the “master of his Work”)

[16] Ibid., 6: “Text of this Work”, associated here in the same sentence with “Manuscript”.

[17] Ibid., 4.

[18] Ibid., 9: “… il ne peut être avantageux au Public, que les Textes des Livres deviennent communs, comme ils le prétendent… ” ; “Pour être convaincu que les Textes des Livres ne peuvent devenir communs…

[19] L. Pfister, 129, explains that Domat had already, in les Lois civiles dans leur ordre naturel, “drawn this distinction between the text and the manuscript upon which it is written...” and since d’Héricourt knew perfectly well the great jurisconsult’s work (see n 7), he probably was aware of these developments and distinction. But his meandering formulations in the memorandum shows that deeper theoretical and explicit discussions on the question were still left to develop, as it would be the case at the time of the 1777 decrees (see for example f_1778, and the Pluquet’s reflexions on this matter). About the evolution of these reflexions through the nineteenth century, see in particular the question of “derivative” works, notably the protection of translations, in particular the Rosa v. Girardin case, in 1845 (f_1845, Court of Appeal of Rouen).

[20] Louis d’Héricourt, 4.

[21] Ibid.

[22] Ibid., 6.

[23] See for example The Case of the Authors and Proprietors of Books (1735), British Library, BM 816.m.12.(52). See also Ronan Deazley’s commentary on the Statute of Anne (uk_1710).

[24] Louis d’Héricourt, 6.

[25] Ibid., 4.

[26] Ibid. An argumentation which will be used again during the Revolution: see in particular the Hell projet (f_1791a).

[27] To use M. Woodmansee’s formulation (“Writers, like other artisans…”), in “The ‘romantic’ author”, I. Alexander and H. T. Gómez-Arostegui, ed., Research Hanbook on the History of Copyright Law (Edward Elgar Publishing : 2016), 54.

[28] See notably M. Rose, "The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship", in B. Sherman and A. Strowel, ed., Of Authors and Origins: Essays on Copyright Law (Oxford: Oxford Clarendon Press, 1994).

[29] L. Pfister, 129.

[30] Ibid., 129-30.

[31] Ibid., 130. We also discuss his influence, but more generally this evolution of the concept of originality, in La formation du droit de la propriété littéraire en France et en Grande-Bretagne: une convergence oubliée (Aix-Marseille : Puam, 2004), 326 ff. (and 332 for Young).

[32] Before abandoning the concept… Epistémès, which cannot be however reduced to traditional historical periods, knowing that the “modern” épistémè starts grosso modo at the time of Kant (see notably Jean-Claude Vuillemin, “Réflexions sur l’épistémè foucaldienne”, in Cahiers Philosophiques 2012/3, n°130, 39-50).

[33] M. Woodmansee, 62, about Talfourd’s conception of literary creation, who evokes “[a] vision of authorship as a kind of secular prophecy…”. This perspective which also probably explains that the bond between the author and the work should be always reappraised, as shown for example with the golden era of Barthes’s intertextuality and biographematic, these “idols of a day”, to quote Regis Debray in Où de vivants piliers (Paris : La part des autres, Gallimard, 2023), 28.

[34] See for example, but for an other era, the Antiquity (and in particular the time of Plaute), Gianna Petrone, “Critères de littérarité dans les comédies de Plaute”, in La littérarité de l’Antiquité à la Renaissance, Blandine Colot, ed. (Rennes: Presses Universitaires de Rennes, 2019), 17, about translations from Greek to Latin during the archaic period, who underlines that “poets [were] translators" in “search [recherche] for autonomy and emancipation”, pointing out for Plaute, that he had, within a very strict creative frame, a “sharp conscience of his work” (“conscience bien vive”).

[35] Modern individuation which was not the result of a “conscious project”: see R. Legros (with B. Foccroule, and T. Todorov), La naissance de l’individu dans l’art (Nouveau Collège de Philosophie, Grasset, 2005), 213 (and also f_1690s).

[36] “Foucault ne propose aucune datation pour cette ‘appropriation pénale’ qui lie la fonction-auteur, non plus aux conventions juridiques qui règlent les rapports entre les individus privés, mais à l’exercice du pouvoir par une autorité qui a le droit de censurer, de juger et de punir.” In R. Chartier, Culture écrite et société. L’ordre des livres (14e-18e siècle), (Paris : Albin Michel, 1996), 50, analysing Michel Foucault’s original version of “Qu’est-ce qu’un auteur ?”, Bulletin de la Société française de philosophie, 63th year, n°3, 1969, 73-104 : “Ils sont d'abord objets d'appropriation ; la forme de propriété dont ils releÌ€vent est d'un type assez particulier ; elle a été codifiée voilaÌ€ un certain nombre d'années maintenant. Il faut remarquer que cette propriété a été historiquement seconde, par rapport aÌ€ ce qu'on pourrait appeler l'appropriation pénale. Les textes, les livres, les discours ont commencé aÌ€ avoir réellement des auteurs (autres que des personnages mythiques, autres que de grandes figures sacralisées et sacralisantes) dans la mesure ouÌ€ l'auteur pouvait eÌ‚tre puni, c'est-aÌ€-dire dans la mesure ouÌ€ les discours pouvaient eÌ‚tre transgressifs. ” See also, about the use of the author’s name during the sixteenth century in censorship legislation, f_1547. On the function of scientific and literary texts in the medieval time, see again R. Chartier, ibid., 50 ff.

[37] Here a literary work from Eloy d’Amerval, eighty years before Marion’s plea for the author’s right to communicate his work freely to the public (see f_1586).

[38] They were in fact rapidly dissuaded by the booksellers and printers from obtaining privileges as authors (see f_1507 and f_1515).

[39] Blondel, Mémoire sur les vexations qu'exercent les Libraires & Imprimeurs de Paris (f_1725a), 12. Andrew Counter has translated “vils artisans” as “base artisans”, which is also possible, although ‘vils” (“vile”) is a harsher term, as it still illustrates the contemptuous tone used by Blondel against the Parisian booksellers.

[40] Diderot refers in fact explicitly to the Parisian lawyer in his Letter on the book trade (see f_1763, n 31) and our commentary. See also, for authors defending directly their own right to exploit freely their work, and relying on literary property from their own labour, Luneau de Boisjermain’s fight against the Parisian booksellers but also the Avis aux gens de Lettres, from Fenouillot de Falbaire (f_1770 – and also discussed in f_1777a).

[41] See Diderot’s letter again (in particular 16).

[42] K. Bowrey, 49, but who uses it about the “author’s property right” (“the author’s property right is instrumental to the cause of enlightenment.”), in “Law, aesthetic and copyright historiography”, I. Alexander and H. T. Gómez-Arostegui, ed., Research Hanbook on the History of Copyright Law (Edward Elgar Publishing : 2016), 49.



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