Primary Sources on Copyright (1450-1900)
Commentary on Condorcet's Fragments on the Freedom of the Press
Faculty of Law, University of Poitiers, France
Please cite as:
Rideau, F. (2008) ‘Commentary on Condorcet's Fragments on the Freedom of the Press (1776)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
1. Full title
3. The critics of the censorship system
4. The injustice and dispensability of book trade privileges
5. Condorcet's influence on subsequent copyright discourse
1. Full title
Condorcet's Fragments on the Freedom of the Press (1776)
Although Diderot and Condorcet probably held much the same views on the need for, and desirability of, the Enlightenment message being accessible to the whole French nation, the Marquis's proposed means for achieving this goal entailed a rather different concept of authorship. For Condorcet, the notion of an "absolute author", whose work was the source of a natural property right, was theoretically and politically unacceptable. Consequently - as far as the provincial booksellers, in particular, were concerned - to avoid any harmful monopolies which could undermine the encouragement of learning, book trade privileges had to be invested with an ordinary definition: namely, that of favours formally granted by the king, in order to guarantee the reward that society owed to the authors of useful writings (see Gaultier's memorandum, f_1776). But Condorcet went even further still, since he did not consider the unjust principle of an exclusive right, even if it was a limited one, to be the most efficient way of helping authors to make a living from their writings. Although the editorial history of Condorcet's Fragments still remains a complicated question, the radical and liberal views expressed in this document have been recognized as having a very strong influence on the revolutionary debates on intellectual property.
3. The critics of the censorship system
Probably in 1776, the Marquis de Condorcet (1743-94) wrote his Fragments sur la liberté de la presse, a sharp attack against the corporatist system and its privileges, and, more generally, against the system of royal censorship. Indeed, the largest part of this work was not concerned with the question of literary property as such, in contrast to Diderot's Letter on the book trade (see f_1763), but, rather, with the question of pre-publication censorship. Very few of the arguments presented and developed in this document are actually related to the question of the nature of the author's right. In reality, only three pages (just before the conclusion) dealt specifically with privileges in the realm of literary property, for it was effectively on these that the government policy of suppressing the freedom of the press rested. Little is known about the fate of the original manuscript of the Fragments and how they came to be disseminated. Condorcet's memorandum was not published until the nineteenth century, namely in the posthumous edition of his Complete Works, from which our version of the text is taken. We do, however, know for sure that the Fragments were written in the same year that the lawyer Gaultier published his memorandum defending the booksellers of Lyon and Rouen (f_1776). It is also significant that in February of this very same year Condorcet's friend and mentor Turgot, the famous royal minister of finances (contrôleur général), attempted to reform and suppress the guilds system, with the notable exception of the printing trade guilds.
Condorcet argued that the freedom of publication - that is to say without any prior conditions being applied to the work - had to be established in the interest of the public. Censorship, indeed, "by raising the price of books, places them out of reach for a very large number of people and prevents the Enlightenment from spreading". The way in which the message of the Enlightenment should best be disseminated was indeed the subject of an important debate in the years 1760-79, with philosophers from Diderot to Voltaire putting forward a wide range of conflicting opinions that could sometimes even vary significantly for one and the same author. As for Condorcet, he unambiguously rejected any arguments about the purported stupidity of the common folk and their inability to be instructed and educated. The Marquis was in fact one of the staunchest champions of the people's access to the ideas of the Enlightenment. He also made sure to emphasize strategically in the Fragments that the royal power itself could only benefit from a "certain freedom" (certaine liberté) in literary matters, and that a "moderate monarchy" (monarchie tempérée) would be impossible without it. Apart from the bias inherent in the censorship system, as well as the fact that foreign countries would in any case take advantage of the trade in forbidden books (an argument already used by Malesherbes), Condorcet pointed out that if it imposed too many prohibitions the government would not be able to keep track of changes in public opinion. Three years after the Fragments, Condorcet would continue his analysis further in writing his Dissertation philosophique et politique, which is a kind of draft of his great Tableau historique des progrès de l'esprit humain of 1794. It was in this last work of his that Condorcet envisaged a time "when the people would benefit from the Enlightenment, not only by the services that they receive from enlightened men, but because they have been able to create from this a kind of heritage". The distinction between "the gross portion and the enlightened portion of mankind" would finally be abolished thanks to the publication of books and general instruction for everyone. From then on, inspired by the famous Marquis, states Mortier, "the rational humanism of the eighteenth-century thinkers would participate vigorously in the historical process; leaving behind the pure intellectualism and spatial confines of the French mind, it takes on a social dimension and a universal extension".
It is in this context and in relation to his ambitious Enlightenment project that we should place Condorcet's discussion of book trade privileges.
4. The injustice and dispensability of book trade privileges
Following a reasoning already elaborated in much greater detail by the provincial booksellers, Condorcet argues that the privilege in the literary field did not in any case constitute the "authentic approbation" (approbation authentique) of a pre-existing natural law property, to use the famous definition by Louis d'Héricourt. Moreover, a property which as such was nothing but a privilege deriving from society alone would run counter to the public interest. By definition it was a monopoly that constituted "an obstruction imposed on freedom", as was likewise the case with the political control of publications. In fact, because he enlightens the people "a man of genius does not compose books for money". Of course, as Condorcet pointed out, if this great writer could not live decently from the fruits of his literary labour, he would "be forced to take up [another] livelihood", and this would be the public's loss. Therefore, it was essential that, although pursuing glory above all, he should also be able to make a living as a writer. This very common argument in literary property debates in the second half of the eighteenth century, as well as afterwards, was also invoked beyond the borders of France. Furthermore, this hierarchy of the aims of the literary profession had, with slight variations, been generally supported by the provincial booksellers and their lawyers, and ultimately by all those who protested against monopolies in trade: "the man of genius who enters into the difficult and honourable career of Literature can have these three objectives in view: to enlighten his fellow men, to acquire immortal fame, and even to obtain a certain salary from his works". As for the way in which this "certain salary" (quelque salaire) was to be obtained, their opinions differed. For the booksellers of Lyon and Rouen, it was sufficient to come back and implement the original criteria of the royal favours, that is, to establish the duration of the privilege in accordance to the bookseller's need to "reimburse" (rembourser) himself for his general expenses. But for Condorcet, who, thanks to his salary as Inspector General of the Monnaie, did not depend on writing for his sustenance, the privileges, even when granted on reasonable grounds, did not seem to be truly indispensable: if instead there was a complete freedom of publication and the first edition could accordingly be produced quickly, then a "subscription could easily replace, if not more, all the advantages [associated with privileges]".
In short, the privilege as such, and not just the way its duration could be extended, could eventually represent a threat to public interest. Exclusivity itself, as a system of remunerating the author by artificially raising the price of books, was called into question. Thus, Condorcet adopted a stance which was the diametrical opposite of Diderot's attempt to vindicate the author as a proprietor, even though, as mentioned earlier, the two thinkers held a number of opinions in common, especially with regard to the desirability of the whole nation having access to the ideas of the Enlightenment.
In fact, this latter goal even seemed to have implications on how Condorcet was ready to evaluate more technical distinctions relating to what had to be, in particular for the lawyers supporting the Parisian booksellers (as for instance Linguet, in 1774 or 1777), the object of literary property. He indeed recognized in the Fragments that the exclusivity granted by privileges was directed at the "expressions" and "phrases" used in a work, and not at the "ideas" themselves. By this classical distinction between the idea and its expression, it also became possible to protect the "author's reputation". A reputation which, however, seemed to depend more on the ideas the author's name was associated with, rather than on the choice of the "pleasant expressions" (tournures agréables) used to materialize the author's work. In fact, this emphasis on personal style, or form, had mainly the effect of rendering the book more expensive. In other words, the personal literary process was regarded by Condorcet as far less important than the communication of useful truths and discoveries, in which the whole nation could potentially share. This amounted to a further comparison between author and inventor, between a literary work and an invention, on the basis that both were useful for society, but again mainly through the ideas they offered to the public. It probably explains that Condorcet, going further than the provincial booksellers argumentation – who also relied on this comparison (see f_1776 and Gaultier’s memorandum) – seemed to understand limited privileges over inventions as being even more legitimate than in the literary field. Bearing this in mind, the impossibility of defining the author's labour in terms of property is not surprising. To maintain the contrary would have amounted to either admitting that such a right could only refer to the "accessory" of that which ultimately characterized the author (his "expressions", his "phrases"), or to accepting that ideas and truths of value for the whole nation were no longer to circulate freely.
Condorcet's radically liberal views on exclusivity have are therefore seen as having exerted great influence on the subsequent revolutionary debates on literary property.
5. Condorcet's influence on subsequent copyright discourse
The Fragments have been seen as embodying - thanks to the bias of the revolutionary project of Sieyès, although the latter was of course specifically geared towards the revolutionary circumstances - a veritable liberal, social contract, current in the public interest to the detriment of the notion of an "absolute author". According to a specialist as eminent in her field as Carla Hesse, it is very likely that Condorcet even "played a crucial role in drafting the National Assembly's first legislation to regulate the printing word". The notion that "ideas were social rather than individual in origin" is thus supposed to remain strong throughout the revolutionary period, which led to some obvious consequences, such as the limitation in duration of the exclusive right enshrined by the deputies. In addition, Sieyès's project was indeed, chronologically, the first legislative effort aiming to regulate the book market; symbolically it served as the corner-stone in relation to which subsequent debates would be constructed (and interpreted) until the passing of the 1793 act. Yet before discussing this point in more depth (see notably the commentaries for f_1777a and f_1790), it should be pointed out that Condorcet's memorandum was situated within a more global liberal current that was also echoed by the provincial booksellers' argumentation, in particular, with regard to the nature of privileges. The defense of their commercial interests (in particular in the already mentioned Gaultier's memorandum in 1776), was in this respect quite remarkable in their determination to constrain monopolies, which had to remain exclusively grounded on privileges and limited for the sake of public interest. A definition which, in fact, was traditionally linked to the first privileges granted in the sixteenth century, but which had not actually been fully sustained by the royal administration itself in its book trade regulations of 1777.
Hesse C., ‘Enlightenment Epistemology and the Laws of Authorship in Revolutionary France: 1777-1793', Representations 30 (1990): 109-37
Malesherbes, Mémoires sur la librairie, Mémoire sur la liberté de la presse (Paris: Imprimerie Nationale repr., 1994)
Mortier R., Clartés et Ombres du siècle des Lumières (Geneva: Droz, 1969)
 Condorcet, 306 (f_1776a) ["...en augmentant le prix des livres, les met hors de la portée d'un très grand nombre d'hommes et empêche les lumières de se répandre"].
 On this issue we refer notably to the work of Roland Mortier, Clartés et Ombres du siècle des Lumières (Geneva: Droz, 1969), in particular, to the article "Esotérisme et Lumière, Un dilemme de la pensée du XVIIIe siècle", 60-103. Regarding the enlightenment of the masses, Voltaire's position, say, was "comparable neither to the scepticism of Fontenelle, nor to the enthusiasm of the encyclopaedists." Mortier specifies further: "[Being] a thinker who was fundamentally pragmatic, who reacted in accordance to the historical environment and economic development [in France], Voltaire refused to take a one-sided attitude ["...assimilable ni au scepticisme de Fontenelle, ni à l'enthousiasme des encyclopédistes. Penseur foncièrement pragmatique, qui réagit en fonction du milieu historique et de l'évolution économique, Voltaire se refuse aux attitudes entières]" (ibid., 78). Similarly, Voltaire, amongst others, would react violently against the public that associated itself with the "juridical assassination" (assassinat juridique) of the chevalier de la Barre and his friend d'Etallonde: "It is at this point", states Mortier, "that carried away by revenge and deception, Voltaire comes to refuse to the larger public the benefits of 'enlightenment', at least for the time being" ["C'est alors qu'emporté par la rancœur et la déception, Voltaire en vient à refuser au grand public le bénéfice des ‘lumières', du moins dans l'immédiat"] (ibid., 75). While La Chalotais rejected the idea of an education system for the "inferior" classes of society, supported in this by Voltaire, Diderot, however, in his Plan d'une Université pour le Gouvernement de Russie, supported strongly the idea of an open university, to educate and civilize the whole nation, for he was convinced that "education gives man his dignity... A university is a school whose door is open indiscriminately to all the children of a nation... " (quoted by Mortier, 84). ["L'instruction donne à l'homme de la dignité... Une université est une école dont la porte [est ouverte] indistinctement à tous les enfants d'une nation..."]
 Cf. Malesherbes, Mémoires sur la librairie, Mémoire sur la liberté de la presse (Paris: 'Imprimerie Nationale repr., 1994). The director of the book trade administration, however, remained much more reticent on the question of suppressing pre-publication censorship, at least until 1788.
 Passages cited and analyzed by Mortier, 100-01. ["où le peuple profite des lumières, non seulement par les services qu'il reçoit des hommes éclairés, mais parce qu'il a su s'en faire une sorte de patrimoine / la portion grossière et la portion éclairée du genre humain"]
 ibid. [l'humanisme rationaliste des penseurs du XVIIIe siècle s'intègre vigoureusement dans l'histoire; sortant de l'intellectualisme pur et des cadres spaciaux de l'esprit français, il prend une dimension sociale et une extension universelle"]
 On this expression, and Louis d'Héricourt, the lawyer of the Parisian booksellers in the 1720s,and the first jurist to state clearly that literary property originated in the author's creative labour, see the commentary for f_1725b.
 Condorcet, 309 ["une gêne imposée à la liberté"].
 ibid., 310 ["un homme de génie ne fait pas de livres pour de l'argent"].
 ibid., 310 ["s'il n'est pas riche et que ses livres ne lui rapportent rien, il sera obligé d'avoir une occupation pour vivre, et le public y perdra"].
 The argument would be used for example by the judge Yates in Millar v. Taylor (see uk_1769).
 Mss. Fr. 22073, n°144, fol. 329 (see f_1776). Emphasis added. ["l'homme de génie qui entre dans la carrière pénible et honorable de la Littérature, peut avoir ces trois objets en vue; d'éclairer ses semblables, d'éterniser sa réputation, et même de retirer quelque salaire de ses travaux"]
 Which implied, presumably, the payment of the author on handing over the manuscript. On the first rationales for granting privileges, see the commentaries for f_1507 and f_1515, and on the contractual relationship between booksellers and authors, see in particular f_1759.
 Condorcet, 310 ["souscription peut en remplacer, et au delà, tous les avantages"].
 C. Hesse, ‘Enlightenment Epistemology and the Laws of Authorship in Revolutionary France:1777-1793', Representations 30 (1990): 109-37 (118).
 ibid. Against the "absolute author" as a proprietor, a writer could nevertheless be remunerated by society, in the form of a contractual reward for his useful publication (on this, see again our commentary on Gaultier's memorandum, f_1776).