Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: f_1790

Commentary on Sieyès' report and projet de décret (1790)

Frédéric Rideau*

Faculty of Law, University of Poitiers, France

Please cite as:

Rideau F. (2022) 'Commentary on Sieyès' report and projet de décret (1790).' Primary Sources on Copyright (1450-1900). Edited by L. Bently and M. Kretschmer, www.copyrighthistory.org.

1. Full Title

2. Abstract

3. Freedom of the press under pressure

4. Some significative steps into the definition of freedom of the press (1776-1791)

5. An incidental and provisional recognition of literary property 

6. The fate(s) of the Sieyès projet

7. References 

1. Full Title

Report of M. the Abbé Sieyès on the freedom of the press, and the bill against offences which can be committed by means of printing, and by the publication of writings and engravings

2. Abstract

 A draft law (a bill) on the regulation of the freedom of the press was presented to the National Assembly in January 1790 by the Abbé Sieyès, the famous statesman and deputy of the Third Estate. As we shall see, in a context of uncertainty and urgency, securing this natural freedom, while preventing its potential abuses, and ultimately promoting useful ideas – for the free individuals but also the free citizens –was a most precious, but difficult, goal to achieve. And this bill, probably linked with Condorcet’s Fragments sur la liberté de la presse in 1776 (f_1776a), certainly succeeded in setting enduring principles in relation to “the offences which can be committed by means of printing”. It is not surprising, in this perspective, that this piece of legislation, subordinated to the implementation of article 11 of the Declaration of the Rights of Man and of the Citizen (1789), and which was moreover officially intended to be in force for a period of just two years, included only incidental mention of literary property. Nevertheless, as we will conclude, this source is still and often interpreted as reflecting a truly “utilitarian” current within the French copyright or droit d’auteur.

3. Freedom of the press under pressure 

Even before the Revolution strictly started on a political and a juridical point of view from June 1789, and as soon as the États Généraux (Estates General)[1] had been summoned by the king, at the end of 1788, the circulation of printed political works, brochures and other pamphlets exploded, one of the most famous being the famous Qu’est-ce que le Tiers-État ? published anonymously by Emmanuel-Joseph Sieyès (l’abbé Sieyès) at the beginning of 1789.[2] Officially, the censorship regulations of the Ancien Régime were remaining fully in force, but it did not prevent some of the main political characters of the Revolution, also often journalists, to request, in the context of this historical royal consultation, the freeing of the Press. Thus, Jacques Pierre Brissot, one of the main leaders of what will be referred to by Lamartine as the “Girondins”, in his prospectus announcing the Patriote français and a few weeks before the opening of the Estates General, called for a “Constitution which must, everlastingly, secure freedom.”[3] Mirabeau, whose first journalistic attempt – a brochure called États généraux – had been forbidden by the king’s censorship, claimed in a new paper published in May that he saw himself as a “prosecutor” for the people, his own legitimacy being founded on and by the nation. As such, nothing could prevent him from informing the citizens without committing a “crime of national lese-majesty” (“crime de lèze-majesté nationale”).[4] The Revolution had already begun in his mind, and henceforth, the priority would be to assure the fullest freedom of expression, notably through the great majority of the Tiers État deputies. It remained to find the right legal formulation of these principles.

It is well known that Sieyès was one of the main redactors of the Declaration of the Rights of Man and of the Citizen of August 1789. He was indeed a member of the Committee on the Constitution and had been charged officially with the elaboration of its principles from the middle of July. This “exposition raisonnée” was presented to the Committee on 20 July, and immediately printed. Against a backdrop of Lockean influence, this preliminary work, through the concrete implementation of a viable mutual contract, meant finding the right balance between the naturally free individual and a new political organization based on equal citizens (“freedom of all”), with a particular concern regarding the “enemies of freedom.”[5] Because “centuries of misfortune” had so much affected the people, the Revolution, in securing for the first time their rights, had to take in account that freedom could not be used and reverted against these natural goals, even at the cost of a distinction between “active” and “passive” citizens.[6] It was nevertheless clear that an individual “entering society does not sacrifice a part of his freedom”, and that the Social State (“État social”) can only “promote and extend” its use; but to harm someone’s freedom has never been a right, and it would be a mistake to think that such a principle would be lost within a human association.[7] In other words, freedom is therefore entrusted to this État social, which also meant, somehow in an utilitarian perspective but in fact simply by not reproducing potential inequalities existing in a state of nature (or under the rule of a tyrant) preventing its abuses. This balance between human rights and citizens’ responsibilities and obligations is thus well illustrated by this Sieyès’ initial “déclaration des droits” containing 42 articles and submitted to the Committee for further discussions.[8]

Following the latter, these principles succeeded in the suppression of all privileges, from 4 to 11 August and, in relation to freedom of expression, in article 11 of the final Declaration: “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.”[9] Freedom, and freedom of printing and expression were supposed to be fully assured as inalienable natural rights, but since these abuses were not defined, this inevitable question, on which the young Revolution clearly rested on, soon emerged. Even though the “particular interest” could not be “sacrificed” to the “general interest”, for Sieyès, enemies of the new regime were indeed certainly never far and potentially numerous.[10] These political ambiguities, stemming from goals uneasy to reconcile, explain the sense of urgency, that in a way culminated later through the Terreur paranoia, from which the Girondins would themselves fall.[11] In relation to reproduction rights and the literary market organisation, the situation was obviously made more complex by the formal suppression of all privileges. But because of this wavering juridical period, some book privileges continued to be issued by the king, at least, it seems, up to the summer of 1790, knowing that the Parisian book trade corporation had itself a few months left to live, until the passing of the Décret d’Allarde, in March 1791.[12]

Political pragmatism and responsiveness were thus necessary, as shown in the discussions before the National Assembly on the freedom of the press from 12 January 1790, and the prompt proposition for a legislation by Sieyès a few days after. In fact, the deputies were discussing that day the “territorial division” when the question emerged abruptly, as soon as the reunion of the regions of the Basques and of the Bearn had been decided.[13] Indeed, the complaint of the deputy Desmeuniers that an erroneous status – president of the National Assembly – had been attributed to his person in libels from Lille, provoked a bitter reaction from his colleague Charles de Lameth: the actual and chaotic situation of the printing and publishing market through these libelous papers and pamphlets had obvious repercussions on the “public order”, although he admitted that he did not have himself in hands a solution – a projet of decree – to “reconcile the freedom of thinking with the national freedom”.[14] Moreover, the stability of the book trade was also important, since to survive, Lameth was also pointing out, many booksellers or printers had no choice but to produce these seditious or libelous papers to the detriment of “good books”.[15] If it was not surprising that these types of traditional publishing activities were at the time largely superseded by more or less ephemerous printed political news and polemics, the number of 20000 copies in relation to libelous matter circulating every week from a single Parisian bookseller, even if difficult to ascertain and even contested, was certainly an impressive figure brought out by Charles de Lameth.[16] In a way, there was some irony that even some Parisian protagonists of the trade had now themselves to produce such clandestine or illegal material, or pretend to do so, like their provincial counterparts during the Ancien Régime. The deputy Jacques-André d’Emeri concluded therefore that for the “public safety” (“salut public”) to be assured, it was necessary to take “efficient measures,” and to propose “immediately” a law “on the freedom of the press.”[17] Louis Marie d’Estourmel supported the motion by adding that in fact, among the grievances of the electors of his province (the Cambresis), was expressed the need that authors, booksellers and printers should be held accountable for this dangerous proliferation.[18] The National Assembly then formally decided that the Committee on the Constitution would quickly prepare and propose such a projet de réglement sur la liberté de la presse.

Not surprisingly, during these debates, apart from the traditional identifications that any published matter should include (from the sixteenth century) – name of the author, publisher, printer etc. – there had been no mention of literary property or author’s rights. De facto however, as we shall see infra, authors as (modest) proprietors would be introduced in the Sieyès proposal, a bill that should be first understood as an important step in defining some principles upon which article 11 (and 10) of the Declaration of August 1789 could be collectively implemented.

4. Some significative steps into the definition of freedom of the press (1776-1791) 

Since that what was primarily at stake is essentially a political debate on what is or should be concretely the freedom of the press, it is not surprising that Condorcet, as an optimistic indefatigable promotor of a rational learning for the whole nation, could have been associated with Sieyès to the preparation of the bill. And they would in fact collaborate again in 1793 by founding the Journal d’instruction sociale, with Jules-Michel Duhamel.[19] Carla Hesse, in an influential article on the Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, also mentions that in an essay intitled De la liberté indéfinie de la presse, François Lanthenas wrote in 1791 that “[a] proposal of the Committee on the Constitution of the National Assembly to regulate the press, proposal attributed to MM. Condorcet and Sieyès, appeared a few months after this glorious revolution.”[20] Although the “proposal was publicly attributed to Condorcet as well as Sieyès”, the projet, after the Committee on the Constitution had been charged urgently from the 12 January to its preparation, was submitted to the National Assembly by Sieyès himself during the session of 20 January.[21] Nevertheless, a “good evidence” to support this joint attribution is supposed to stem from a close comparison between Condorcet’s Fragments sur la liberté de la presse (written in 1776 – f_1776a), which is claimed to disclose “striking” resemblances, in both the structure and substance, with Sieyès’s revolutionary text.[22]C. Hesse also recalls rightly that the moderate “Society of 1789” (the Club de 1789) was created at the beginning of January 1790, which included notably La Fayette, La Rochefoucauld, Liancourt, Dupont de Nemours (but also Mirabeau and Talleyrand), and its members might have as well participated to the elaboration of this bill.[23]

However, since this intimate contiguity is thus supposed to demonstrate a strong – “utilitarian” as we shall see – connection between the Ancien Régime and the Revolution over the dissemination of learning (and ultimately exclusive rights upon it), the question certainly calls a few further remarks on the existing links between the Fragments and the actual projet presented by Sieyès. While the latter’s introductory report emphasized positively on education, freedom of the press and its legal limits, Condorcet’s first pages – in fact a first section among seven of them – focused on the characters and the definition of crime (criminal intention, philosophy of punishment, etc). But both sources are evidently concerned by the freedom of the press, particularly in relation to what could constitute limits to this absolute freedom – a crucial question also debated by Malesherbes in 1788, and before – notably in relation to libel (“calomnies” and “diffamation”) against the private individuals as well as against public servants.[24] Condorcet also offered long developments that did not appear as such in 1790 (on “injures”, libel against the “corps constitués…”).[25] As regards the authors themselves, he admitted that they should be responsible for their writings – when they consented the publication of course – but also discussed in length the consequences, potentially counterproductive, of punishing them.[26] Ultimately, in Sieyès’ bill, they were made logically liable for their texts published with their approval.[27] Some essential points dealt under the Revolution were – inevitably perhaps – not considered in 1776, as would be the crucial role of the institution of a jury in the concrete determination of these offenses (“délits”). Overall, since their object were different – an unpublished essay with prospective discussions alternatively theoretical and more technical, and a bill with a traditional preliminary report and 44 articles – it appears ultimately uneasy to follow the “striking” evidence of their common “organizational structure” and priorities.

Still, the Projet de loi contre les délits qui peuvent se commettre par la voie de l’impression et par la publication des écrits et des gravures, proposed to the deputies in January 1790, served  the most liberal opinions of the Lumières and responded to the concrete implementation of Article 11 of the Declaration and the effective suppression of all preconditional censorship. The phraseology is typical of the revolutionary eloquence in a report presented to the National Assembly – here “les considérans,” in the name of the Committee on the Constitution –: “It is not due to a law that the citizens think, talk, write and publish their thoughts: it is due to their natural rights; rights which men have brought in association, and for the maintenance of which they have established the law itself and all the public means which serve it.”[28] The national cause was therefore to favour the diffusion of the Lumières against all ignorance.[29] And in relation to the abuses of freedom, because every citizen has a common responsibility, “[t]he freedom of the press, like all freedoms, thus must have its legal limits.” In particular, as mentioned, Sieyès was convinced that one of the most legitimate ways of securing these further regulations, and reconciling the principle with its potential abuses, would be the institution of a jury, the best means to associate actively the “enlightened citizens” to its defence. This is probably why a significant part of the report, to conclude it, was indeed devoted to the jurés – “The decision on the issue by a jury is also the best response that we may give to those who would find that there remains enough vagueness in some of the first articles.” – but also the final title (De l’instruction et du jugement, articles 34 to 44) of the bill.[30]

Under this projet on the regulation of the freedom of the press, moreover under the pressure of some booksellers or printers to pursue the spreading of seditious writings, the question concerning “the property in ideas” was therefore subordinated to this vital ambition.

5. An incidental and provisional recognition of literary property  

In relation to exclusive rights on writings, and to come back to the above association between the Fragments and the Sieyès proposal, if “ideas were social rather than individual in origin” for Condorcet in 1776, the proposition to endorse literary property in 1790 means that he had been finally compelled to recognize or accept that some kind of exclusive right over these “ideas” was now ineluctable.[31] Although there are, to our knowledge, no direct sources, starting from Condorcet himself, to explain explicitly this potential conversion during these complex legislative circumstances, the Fragments was indeed denying, in a subdivision of the last section (VII) intitled Des privilèges de la propriété littéraire, not only a property over “ideas” but even over the forms in which they were expressed, however pleasant (“tournures agréables”) they could be: in short as we have already discussed this source, although Condorcet recognized that existing book trade privileges aimed to protect exclusivity over “expressions” and “phrases” used in a work, this literary incarnation was regarded as far less important than the largest possible communication of useful truths and discoveries.[32] Is it in fact from this singular perspective, or from a deeper conception of literature, that the claims of the Parisian booksellers (and Diderot) for their monopolies are often summarized, going back as far as Louis d’Héricourt’s memorandum in the 1720s, as being ultimately about “property in ideas” ?[33] Nevertheless, although such distinction had been more commonly formulated from the second half of the eighteenth century, Condorcet certainly made it perfectly clear that it was artificial, and to the detriment of the public interest.

Moreover, since the main developments of the report, as mentioned, were necessarily devoted to the fact that communicating thoughts are “natural rights”, the nature of the right of reproduction (and representation) conceded, the choice of “property” in the bill’s articles and the reason of its limitations were questions left behind. It was merely recognized that freedom, and more generally the “freedom of doing” (“liberté de faire”), contributed to the production of writings, and that excessive limits weighting on it would “attack the fruit of genius”.[34] All the works that contributed to the enlightenment, but also the “commerce of thought”, would certainly benefit from this liberation. But consecutively, to what extent free trade and free competition would be useful for this type of commerce and, therefore, with what acceptable boundaries if (and as) a property had to be recognized and secured? Apparently disappointed that this old question could not be debated further in this context, and in an equivocal conclusive formulation, Sieyès told the Assembly that a legislation to “encourage” the “useful” implementations of this particular sort of commerce could not be “at the moment” properly established: again, he explicitly insisted, what was discussed was about “a law to repress the abuses of the press”.[35] Thus, this lack of time (“[l]e temps nous a manqué…”) justified that this legislation had been introduced to be only provisional, in other words, to paraphrase Sieyès, not setting a different order of things than the one existing at this (transitional) present state, and a fortiori not establishing anything definitive for the future: therefore, the report insisted, the law will produce its effects for two years, eventually renewable if a general codification or a homogenous body of laws were not achieved before this term.[36] This was also the principle settled by the very first article of the bill.[37]

Not surprisingly, following this introduction, the bill itself – its operating articles – was accordingly firstly concerned by limitations on the freedom of the press. Articles 14 and 18 were then respectively devoted to the recognition of the rights of reproduction and representation. Article 14, included in the first section of the bill on sanctions for abuses against freedom of the press, established a right of property, which seemed conditionally assured for 10 years post mortem auctoris: “The progress of the enlightenment, and by consequence the public utility unite themselves around the ideas of distributive justice, to demand that the property of a work be preserved (“assurée”) for the author by law.”[38] The formulation is indeed somehow paradoxical, starting immediately by general interest considerations to justify more than a simple reward from the law, and suggesting a pre-existent right of property, as would be a natural right. Article 18, without further theoretical considerations, separately stated a right of representation, that is that a manuscript or a printed copy of the play could not be represented without the consent of their authors (during their live and 5 years post mortem).[39] The second part of the bill  - De la responsabilité – articles 23 to 33, focused on the identification of the individuals responsible for the circulations of unlawful writings, starting from their true authors (article XXX).[40] As mentioned supra, the ultimate and third part – De l’instruction et du jugement – concerned specifically the introduction and the role of a jury in the judicial process.[41]

In view of article 1 and its transitional legal prescription, such prudence was inevitable, above the fact that the tumult of the Revolution requested a humble voluntarism in all that had to be rebuilt, starting from a question at the core of its perennity, freedom of the press and its potential abuses. Sieyès himself, as seen for the framing of the Declaration of August 1789, had henceforth to reconcile natural rights, declared inalienable, and their collective implementation: the individual but also the citizen, the right balance between them, and the necessity for the latter to be sufficiently educated for the political role he was now compelled to endorse. These cautious efforts before the National Assembly proved to be sterile, although a report being “frequently applauded” during its presentation.[42] The deputies ordered the printing of the bill and its presentation, but adjourned its discussion, which would turn out to be a definitive decision.[43] This immediate loss does not impair a more positive fate, although equivocal in its interpretation.

6. The fate(s) of the Sieyès projet 

Theactual fate of the bill was to be confronted to a “quasi-libertarian” atmosphere, lasting from the first months of the Revolution until the turbulent discussions concerning the future constitution in 1791.[44] In short, any regulations against the freedom of the press, even though allowed in article 11 of the Declaration of 1789, were being perceived at this stage as a threat against its primitive principle. Therefore, what could appear to be calumnies were eventually useful, legitimate critics from free citizens against any government (and any potential despotism), and Robespierre himself, in May 1791, relied explicitly on the American choices in that matter to defend this absolute position.[45] Despite the lobbying of some booksellers for exclusive rights to avoid the circulation of seditious matter to survive (see supra), these circumstances and the pressure must have been intense on Sieyès (and Condorcet) for such premature regulations. This explains that journalists like Élysée Loustalot and Louis-Marie Prudhomme, who would be strong voices for an absolute freedom of the press in their journal Révolution de Paris, immediately contested the projet, but also, along Marat and Brissot, Louis-Félix Guynement de Kéralio, ex-censor and now a fervent revolutionary, who claimed that if this freedom is a “great public good” for a time, it must remain that way for all times.[46]As a probable main contributor of the bill, Condorcet also received a substantial direct appeal, from Jean René Loyseau, who wrote an open letter to denounce in particular the fact that the name of the author or the printer should be known in any publication.[47]

More generally, these original tensions would imply multiple contradictions between the natural, civil and political rights secured by the Revolution and their actual enjoyment, starting for the French citizens themselves. Until the end, in even more extreme political circumstances, Condorcet, as Duhamel, defended the idea that without the diffusion of learning, citizens’ own natural rights would be threatened again, at the best confining them to their sole theoretical acceptation.[48] Nevertheless, some institutions promoted by the bill, notably the jury, would remain a true measure assessing that succeeding political regimes in the nineteenth century were committed – very inconsistently obviously – to implement these limits to the freedom of the press in a reasonably proportional way.[49]

The few reactions focusing on literary property and articles 14 (and 18) appear logically, since the question was ancillary itself, to have been secondary or only indirect. Kéralio attacked exclusive rights within the book trade, but essentially because this resurgence of monopolies or privileges would constitute a further obstacle against the “liberty” of the press and the enlightenment.[50] Although some booksellers – notably the famous Charles-Joseph Panckoucke – had already adapted themselves to a more competitive trade since the limited privileges in duration conceded to the booksellers after 1777, extended exclusive rights were of course still being requested, as it had long been the case in the Ancien Régime.[51] These regular solicitations, as we have seen, were also active as regards the Sieyès projet, and would be again so a year after, with another bill, this time intended to be perennial and supporting a perpetual property right: the François Hell projet (f_1791a). The question had indeed only been settled in relation to the right of representation with Le Chapelier in January 1791 (see f_1791), and uncertainty was still a matter of considerable concern. 

Nevertheless, the fact that this bill established incidentally, at the very beginning of the Revolution, an exclusive right of reproduction characterized by its limitations, intimately combined with an emblematic mémoire from the Ancien Régime whose author was himself against the “very notion of literary property in ideas” for the sake of the encouragement of learning, appears to support ideally an original, powerful (if not dominant?), “utilitarian doctrine” or “instrumentalist notion of public good” in the French droit d’auteur.[52] Indeed, through this initial compromise “between individual and collective claims on ideas,” what was an urgent and provisional proposal on the freedom of the press henceforth can become the legal foundations of literary property of this new political era: as Carla Hesse simply puts it, “[t]he decree adopted on 19 July 1793 amounted to yet another version of the Condorcet/Sieyès proposal of 1790.”[53] Or, in broader  terms, another “Condorcet/Sieyès” version making the subsequent bills or laws on literary property substantially tied to the consequential approach which determined the legal fate of the book trade in Donaldson v. Becket in 1774.[54] A limited property right which, it seems, could have been thus indifferently labelled as a limited copyright: therefore, the sterile discursive grandiloquence used by Lakanal in his report in 1793, even if (or because?) the public good was not then primarily considered, can be portrayed as a way to “tout” the  “slightly revised” Sieyès bill.[55] Collaterally, it appears equally fruitless to allow the same attention to the Hell projet against this instrumentalist historical tide and mostly being reduced, when mentioned, to its submission to the forces expressed by the trade lobbying and its consecutive extravagant absolute property on ideas or expressions. Nothing is more “vulgar” than ideas would say much later (Louis-Ferdinand) Céline, but since the distinction between these two potential objects of monopolies was factitious for Condorcet, syntagms like “owning ideas," or “property in ideas” may indeed appear to be more than ellipsis or editorial slogans.[56]

C. Hesse’s Enlightenment article, with the important questions it raises on the confrontation of “two epistemological stances” (between the individual and the collective), remains a strong and persistent reference in recent publications.[57] However, even though the aim is to deconstruct a stereotyped or caricatural history of a droit d’auteur à la française under the name of immaculate creation – or, to use K. Scott’s formulation, “…the ideal figure of the Romantic author, the poster-boy for literary copyright and its histories…”[58]– promoting the Sieyès projet as a landmark, if not the major, piece of literary property legislation of the Revolution, seems to bear the opposite effect, in putting an excessive emphasis towards a more univocal “utilitarian” path. It remains arguable to grant such a fate to a bill on the freedom of the press, about which Sieyès himself, in these exceptional circumstances, explicitly regretted the lack of time for further debate. In this perspective, the consecutive relegation of the Hell projet to its excesses can be problematic, since it attempted more seriously to define the object of this still probational literary property, ironically a forgotten question, while simultaneously endeavouring to explain, before Lakanal did in the same way, what Le Chapelier had meant in his report by “public property” a few months before (see f_1791). Furthermore, even though the rough legal means – property, eventually perpetual – employed could be comfortably criticized, Hell himself explicitly defended that his bill was also conceived for the benefit of the citizens’ enlightenment, which is the common good, and after all, the goal of every legitimate legislation. As for the first established legislation on literary and artistic property of this political era, the July 1793 act (see f_1793), with its original formulations and archeology, the language used by Lakanal to briefly report it, far from being conceived unrealistically nor ex nihilo, may be interpreted differently than a mere communicational varnish. That being said, the Sieyès projet remains obviously at the center of discussions on literary property (in ideas or their expression…), and has undoubtably his place as a “core source” in the Primary Sources database; historical debates in this field are of course the best way, as Elena Cooper puts it rightly, “to imagine things differently and to look to the future with a more critical eye”.[59]

7. References

Books and articles

Feyel, G. “Le journalisme au temps de la Révolution: un pouvoir de vérité et de justice au service des citoyens.” In Annales historiques de la Révolution française, no. 333, 2003.

Hesse, C. “Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, 1777–1793." In Revolutions Russia, 20 (1990)

Hesse, C. “The Rise of Intellectual Property, 700 B.C-A.D 2000 : An Idea in the Balance,” Deadalus, Vol. 131, N°2, On Intellectual Property (Spring, 2002) (MIT Press)

Walton C., La liberté d’expression en Révolution, Les moeurs, l’honneur, la calomnie (Presses universitaires de Rennes, 2019)

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