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French Literary and Artistic Property Act (1793)

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Identifier: f_1793

 

Commentary on the French Literary and Artistic Property Act (1793)

 

Frédéric Rideau*

Faculty of Law, University of Poitiers, France

 

Please cite as:

Rideau, F. (2023) ‘Commentary on the French Literary and Artistic Property Act (1793)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

 

1. Full title

2. Abstract

3. A projet at the heart of the Convention

4. Lakanal’s report

5. What was to be legally secured…

6. Lakanal’s language

7. References

 

 

1. Full title  

Decree of the National Convention, of 19 July 1793, regarding the property rights of authors to writings of all kinds, of composers of music, of painters and illustrators (with the report of Lakanal)

 

2. Abstract 

The Decree of 19 July 1793, probably the most famous piece of legislation of the French sources for intellectual property, confirmed the recognition of a literary and artistic property right, secured from then on by national law. In spite of its mere 7 articles, it was to have an exceptional endurance, even though, as we shall see, it had been voted upon by the National Assembly without any specific debates in an increasingly chaotic political context. For the first time, it succeeded in dissociating the question of the freedom of the press and literary property, in a concise report from the deputy Lakanal (a fresh member of the Committee on the public instruction) in charge of the presentation of the bill before the National Assembly (the Convention). It also aimed at the protection of works of all kinds but under a limited duration assured by law, illustrating again the precarious and implicit balance between individual and public interests, and between private and “public property”. Yet, the language used by Lakanal, incorporated key elements of the enlightenment debates within literary property, on which judges and legislators would frame principles throughout the nineteenth century until 1957.

 

3. A projet at the heart of the Convention 

Since the Sieyès (f_1790) and Hell bills (f_1791a) did not succeed, the right of reproduction was still a pending question in 1793, left alone to be secured by law, after the right of representation, but also the protection of inventions, had been respectively recognized under the reporting of Le Chapelier (f_1791) and Boufflers (f_1790a). The Revolution was at the time deeply troubled by the failure of the September 1791 constitution and the insurrectional month of August 1792, leading to the formal abolition of the monarchy the 21st of September. Then followed times that would lead to deadly political confrontations after the “procès” of Louis XVI, notably the elimination of the “Girondins” from the Convention in June 1793. This volatile situation involved increasing political surveillance, starting with the “Law of Suspects” (17 September 1793) against those who could doubt that a republican regime was the only way forward: as the deputy Joseph Lakanal put it a year later, in 1794, there had been indeed a time when the National Assembly thought that “monarchy” and “freedom” were “compatible”.[1] These divisions had also some resonance on the debated balance between natural rights: discussed shortly after the fall of the Girondins, the Montagnards attempted in this perspective to reappraise the hierarchy between these rights in a jacobine constitution, also conceived to enlighten new citizens for the “progress of the public reason”.[2] Within this constitutional text of 24 June 1793, the new Declaration of the Rights of Man and of the Citizen, in its article 1, stated that the goal of a society is the common happiness (the “bonheur commun”), the government being nevertheless instituted and bearing its legitimacy to secure individual natural rights. Property was thus still proclaimed as such, but then preceded, contrary to the 1789 Declaration, by equality, freedom, and security (“sureté”).[3] Although this constitution was never applied, it illustrates again this persistent instability since the beginning of the Revolution, relating to its transitional nature, a situation, as we have seen, that Sieyès was already addressing with his projet on the freedom of the press.

 

The Decree of 19 July 1793 relating to literary and artistic property was passed at the heart of this difficult period, but, it appears, without substantial recorded discussions or debates – starting with the nature of the right involved –, at least from the usual sources, notably from the Moniteur, where the parliamentary discussions were made available to the Nation and its citizens since 1789.[4] The procès-verbaux of the Committee on Public Instruction, under which authority the deputy Lakanal would soon report, provides itself only very few indications on the proceeding history of the bill and how it finished its course before the floor of the Convention: on 20 February 1793, a report on counterfeiting (“un rapport sur les contrefaçons”) by Marie-Joseph Chénier, an active political protagonist of the Revolution (member of the Club des cordeliers) and playwright who countered in 1792 the theatre directors, was announced to be presented soon to the Convention.[5] Although the Moniteur, the first day of April, expressed its imminent presentation, it did not reach the floor until Lakanal’s own bill on literary and artistic property in July 1793.[6] Meanwhile, it appears that some writers – the novelist Jean-Baptiste Louvet – wrote to the Convention for some intervention against “piraters, who are destroying the book trade”, these solicitations going back from February 1792.[7] Unfortunately, not much more can be inferred from this Committee’s composition itself. The Committee on the Constitution had been suppressed on the 16 February 1793, and some of its members – Barère, Condorcet and Sieyès – had been asked to join the Committee on Public Instruction, also renewed by half to form, from 28 February 1793, an institution of around 25 members, among whom were Baudin and Chénier (already members in 1792), and more recently Lakanal (a new comer under the last renewal).[8] The composition of this Committee would be again modified in June, but by this time, Condorcet, who feared for his own safety, ceased to appear at the Convention and at its the sessions.[9] Apart from these continuous changes within the revolutionary institutions, it is only known that the Committee still included Baudin, Lakanal and Sieyès at the beginning of July 1793.[10] Probably because these members worked within the same body, Lakanal was going to rely, in his own name, on a report written by Baudin in the end of February concerning the rights of dramatic authors and following their protestations against the “entrepreneurs de spectacles”.[11] As concise as it was to remain famous,  Lakanal’s final short version, with Baudin’s “borrowed” parts, introduced the last revolutionary  literary and artistic property legislation, embracing – unifying – these two fields of creation and for the first time fully distinguished from questions pertaining to freedom of the press.

 

4. Lakanal’s report 

Lakanal’s choice of concision in reporting this expected crucial legislation seemed thus radical per se.[12] Along the final words to recognise (“consacrer”) a law which would form the “Declaration of the Rights of Genius”, the small paragraph mentioning Corneille’s lineage and the literary “pirates” seizing the product of genius did not appear in Baudin’s report.[13] The report was just a few lines (as contrasted to previous reports – see notably Boufflers’ report (f_1790a)) and we will come back to the language and the syntax used infra. The emphasis was essentially put on two combined core elements of literary (and artistic) property, i.e. that “positive” legislation had to secure the exercise of such a property and that publication did not make the work a public property.

 

As regards the first aspect, Joseph Lakanal meant law (“loi”), that is the highest and the fullest possible legitimate revolutionary act, emanating from the elected representatives of the Nation, and in itself fundamental political progress. And with the law, the Convention sought to protect the “free exercise” of an evident right of property. In doing so, it also confirmed a choice already made under the legislation of 30 August 1777, when the king conceded to redefine in the most striking way book trade privileges to guarantee the authors’ natural rights (see f_1777a). For obvious political reasons, along with what the abolished privileges symbolised, Lakanal was not going to refer in any way to such a filiation with the Ancien Régime: logically it was claimed that only a Revolution “like ours” had, at last, been able to satisfy the “the simplest elements of common justice.” But the confusion between these two distinct elements – the asserted goals of a new political era and securing a property right – have sometimes concealed, it seems, the coherent filiation of this common recognition beyond 1789, starting with a biased or equivocal analysis of the royal decrees.[14]

 

Another constant preoccupation in these debates was the peculiar vulnerability of such a right of property, stemming from the paradox that it is through the act – the choice – of publication that the most hidden and intimate part of an author becomes suddenly fully external and public. The preoccupation is here again explicit in Lakanal’s report: this is sort of relief for an author making the literary work a “public property”, but that must not be misunderstood by “buccaneers” (“corsaire”) or “pirates”. Following Le Chapelier’s own report on dramatic works, François Hell, in 1791, endeavoured to clarify the incorporeal consequences of this passage from this internal state to the “light”, the “spiritual” part of literary property and becoming inevitably through publication, “the property of all”.[15] This meant, as Baudin himself pointed out in his report, quoting Boileau (as the “greatest critic”), that as soon as an author, here a poet, has his work printed, he is in a way “enslaved” by his public, subjected to all possible judgements from his readers.[16] But the corporeal nature of the copies of the literary printed work deserved ultimately the protection of the law, since the only way to beneficiate from his right was through this exposed “material” – to use once more Hell’s formulation – part.

 

Lastly, could such a natural right, its “increase” (“accroissement”), be considered as a potential burden on other rights, “liberty” or “republican equality”? In relation to the latter, it seems that Baudin had used the expression in 1792 in the context of defending the authors’ cumulative interests in both the representation and the publishing of their plays as not being exorbitant against the freedom of the comedians and theatres.[17] Lakanal chose to maintain this enigmatic expression for literary property, but this was not fortuitous, as the republic envisioned by the Convention was of course anxious not to reconstitute any privileges and social orders. But even though the hierarchy between natural rights had been revaluated in the constitutional attempt of June 1793, in theory, individual effort and work devoted to increase one’s own property, if not built upon the numerous “usurpations” of the past, did not “denature civic equality” – to use Sieyès’s words in Qu’est-ce que le Tiers-État? –, and accordingly, still deserved the protection of the law.[18] Again, the traditional balance between the full exercise of these rights and their potential social “abuses” – an explicit question raised by the Declaration of Right of Man and of the Citizen[19] remained acutely difficult to determine.

 

Subsequently, could this balance be conditioned by the fact that authors had spread the enlightenment – as François Hell underlined in 1791 – or because literary geniuses were pushing back the boundaries of “human knowledge”, as Lakanal put it? There was no clear answer in the report either. But even though the exercise of literary and artistic property was so decisively subordinated to the law and had been unambiguously asserted in 1793 as a natural right, the patrimonial effects of this “incontestable” right had been nevertheless limited in duration. The protection which remained was for every type of literary and artistic work.

 

5. What was to be legally secured…

Indeed, among its mere seven articles, article 2 of the 1793 act endorsed the transfer of the right of reproduction to the author’s “heirs or transferees”, for a period of ten years post mortem auctoris. Such a limit had been already proposed in the Sieyès provisional projet in 1790, but its principle was also the result of a “compromise” settled in August 1777.[20] Consequently, following this first phase of protection by the law after publication, the author’s “material” interests, not secured anymore, became fully public. However, the absence of explicit debates on this precise duration would unfortunately foster discussions dominated by its extension during the whole nineteenth century (and after), starting by the discussions held by the Commission on Literary Property, constituted in 1826 to propose a first reform of the 1793 act.[21] Still, contrary to what occurred in1844 for the “brevets d’invention” (5 July 1844 on patents), the property right qualification would never be suppressed by following legislations. The Court of Cassation decision, in 1887, evoked literary property as not being a property in the “proper” sense of the term.[22] But it remained an isolated occurrence from the high judges and even when they recognised the moral rights in 1902 (the Lecocq case – see infra), they did so relying on the property secured in 1793.

 

As to the literary and artistic property works to be protected, the versatility of the Ancien Régime privileges system potentially allowed every type of works to be promoted by the king. However, to elaborate from 1789 a legislation from “simple” and “clear” principles to be applied by the judicial system – while being accessible to the citizens themselves – was definitely a complex challenge.[23] The Hell projet attempted to clarify what was the object of literary property, but the 1793 Act, in its article 1, reached an exceptionally perennial formulation simply encompassing literary works (here “writings”)  “of any kind” – “en tout genre” – with, in addition, its enigmatic article 7 mentioning “any production of the mind or of genius”. It meant that, for example in the field of artistic property, the protection of sculptures, despite not being explicitly mentioned in article 1, was soon to be found by the courts to be an undeniable production within the domain of the fine arts.[24] In the same perspective, although no threshold of protection had been specified in the law, judges thus soon inferred from the combination of these articles, in a landmark decision of the Court of the Cassation (2 December 1814) supported by the Chief Prosecutor (procureur général) Merlin de Douai, that anthologies or more generally compilations, could not be excluded by principle if they also bore an author’s own “conceptions” (“conceptions”).[25] Confronted to new means of literary or artistic expression, notably news transmitted by telegraph, or photography, the judges finally developed, maybe not so surprisingly (see next paragraph), the idea that, to be protected under the 1793 act, a work had to bear the “imprint of its author's personality”.[26] Of course, to combine the latter with the exclusion by the same courts of any criterion based on the (aesthetical) merit would inevitably provoke difficulties, but their role, in determining the scope of protection, and a pertinent definition of what had to be protected, constituted a rich jurisprudence (in the French meaning, i. e. “case-law) throughout the whole nineteenth century and until the 1957 act.

 

To conclude with the nature of the right secured under these provisions, article 6 required that two copies of works “of literature or engraving, of whatever genre” had to be deposited with the National Library or the “Cabinet des Estampes of the Republic”. Although the same article specified that “those who fail to do so shall not have standing to bring legal proceedings [être admis en justice] against counterfeiters”, this obligation has been analyzed as being more consistent, after the Sieyès projet, with a utilitarian interpretation of the revolutionary legislation, or to say the least, as not being compliant with “the notion of a right inherent in the author”.[27] Eugène Pouillet, in light of this legal requirement – but also its judicial interpretation through the nineteenth century – considered that it could not express “more clearly” that property did not “depend” on the deposit, but only “the admissibility of the action against counterfeiting”.[28]

 

The definition of a literary and artistic work and the scope of protection are obviously essential matters, but for the reasons discussed above, the Lakanal’s language itself has been mainly questioned because of the inherent formal contradiction between the terse provisions of the law and an emphatically promoted “incontestable property”.

 

6. Lakanal’s language

As already mentioned (see f_1790), attention has been put on the Sieyès projet (on the freedom of the press) as being the most influential piece of legislation of the Revolution on droit d’auteur, probably starting by the fact that it inaugurated this solution of a right of reproduction limited to 10 years after the author’s death. But while a limited literary property right was simultaneously recognized and “assured” in this bill, it did so with moderation, simply compliant with this limitation, that is without any of the “emphatic” or “pompous” Lakanal’s words.[29]  It has been thus summarized that the Convention had subsequently been “able to pass a slightly revised version of the Sieyès law, now touted as a ‘Declaration of the Rights of Genius’.”[30]

 

Yet, beyond this suspected politician language, it must be firstly pointed out that the words selected by Lakanal in his report presumably carried more than the bare technical, juridical, aspects of a right of property.[31] Indeed, in these historical circumstances, from its evident connection with individual freedom, it also bore an “affective” dimension. Characterized thus by the “plenitude” of the right of its holder, it explains, for example, that the judges even considered in 1826 that, “en droit”, families’ patronymic “is their exclusive property” although it did not obviously bare any jus disponendi (the right of alienation).[32] More importantly, following Baudin’s formulation, itself far from being original, Lakanal relied on a hierarchy established since the beginning of the eighteenth century between the great difference between the objects of property rights: the literary works being promoted were “at least” as incontestable as a right on land, but in fact the most undisputable of all.[33] The word “incontestable” itself had been used by Linguet in 1774 and 1777, in almost the same formulation than it would in 1793, but also by Antoine-Louis Séguier in 1779 in his large report produced to defend the king’s legislation.[34] And this is not surprising that, referring explicitly to the latter, Joseph-Marie Portalis, during the debates of 1839 before the Chambre des Pairs, went also above the 1793 Act to express under these ambitious formulations a “doctrine” which was neither “new” nor “unknown”.[35] From this filiation, probably rather than under a Germanic influence of “rights of personality”, he then claimed in the same intervention his belief that what an author generates from “his own substance” is “still him, outside of himself”, a property “by nature, by essence, by the indivisibility of object and subject”.[36] Somehow, Portalis expressed in his own words the inherent double nature of the literary and artistic property, between “spiritual” – “like the rays of the sun” to use F. Hell’s own language – and “material” parts transmitted, at different levels, to the public, and therefore requiring potentially different ways of securing them before the common interest. The point is that behind what appears to be a pompous phraseology seemed to exist a common understanding that literary property was peculiar: it did not simply only entail economic or patrimonial effects, but was a “reality” sufficiently shared by authors, legislators, and judges. Or, in more trivial terms, the “declaration of the rights of genius”, because of its familiar language, already left – still without being able to solve the complexity incarnated in a literary or an artistic creation – all options open…

 

In fact, along a subjective threshold of protection developed from 1814 by the judges on the sole basis of this legislation, some non-pecuniary interests, starting by the right of publication – a right, for an author, “incommunicable, as his will, his conscience” believed Portalis –[37] would be welcomed by the courts to secure through the nineteenth century, from the years 1820.[38] Marcel Plaisant, one of the protagonists of the major reform of 1957 on literary and artistic, indicated thus that Kohler himself “confessed that the German writers have had the sole merit of organising as a system the results provided by the French courts”.[39] For him, the “men of the Revolution”, by giving the “name of property” to the droit d’auteur, were also trying to strengthen it with the “prestige of the past”, in search for the best harmony between the word and the (literary) thing (“la chose”) itself:[40] in other terms, the extreme difficulty to define in juridical words this “high sovereignty”, this sort of “eminent domain” which is supposed to arise from an author’s both literary and artistic conceptions, beyond the economic consequences of the publication of the work.[41] Maybe Lakanal’s language, with its inherent imperfections, was in this sense another protagonist of a “projet magnifique” in introducing the 1793 act; magnifique because it was out of reach, “impossible”, that is “to write the law of reality”.[42]

 

7. References 

Dock M.-C., Étude sur le droit d’auteur (Paris : LGDJ, 1963)

Ginsburg J., “A Tale of two Copyrights: Literary Property in Revolutionary France and America” (1990) 64 Tulane Law Review 991

Hesse, C., “Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, 1777–1793” (1990) 30 Representations 

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) 

Pfister, L., L'auteur, propriétaire de son œuvre ? La formation du droit d'auteur du XVIe siècle à la loi de 1957 (Strasbourg PhD thesis, 1999)

Plaisant, M., La création artistique & littéraire et le droit (Paris : Rousseau & Cie. Eds, 1920), re-edited Alexandre Portron with a large presentation : La creation artistique et littéraire et le droit – presentation par Alexandre Portron (Paris : Dalloz, Biblothèque Dalloz, 2022)

 

 

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



[1] J. Lakanal, Rapport par le représentant Lakanal, au nom du comité d’instruction publique, sur les écoles normales, lors de la séance du 3 brumaire an III (24 octobre 1794), in Archives Parlementaires, Première série (1787-1799), Tome C, 3 au 18 brumaire an III (24 octobre au 8 novembre 1794), 32: “ … elle [l’Assemblée constituante] avoit voulu concilier deux choses inconciliables de leur nature : la royauté et la liberté.”

[3] “Article 2. - Ces droits sont l'égalité, la liberté, la sûreté, la propriété. ”

[4] See, following the original copy of the decree (Archives nationales – BB/34/1/46), the last page of the n°202 of the Gazette nationale, ou le Moniteur universel (21 juillet 1793), 868.

[5] M. J. Guillaume, eds., Procès-verbaux du Comité d’instruction publique de la Convention nationale (Paris : Imprimerie nationale, 1891-1907), 1 : 347. Marie-Joseph Chénier had also a famous older brother, André, journalist and poet, who would be guillotined (25 July 1794) two days before the arrestation of Robespierre.

[6] Ibid., n 4 (footnote by Guillaume : “Il s’agit d’un rapport à présenter par Chénier à la Convention. Ce rapport n’a pas été fait, bien qu’une note du Moniteur du 1er avril en annonce la prochaine présentation […] ; mais Lakanal lut cinq mois plus tard à la Convention un rapport sur le même objet, à la suite duquel fut voté le décret du 19 juillet 1793 sur la propriété artistique et littéraire.”)

[7] See on this the useful investigations of C. Hesse, “Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, 1777–1793” (1990) 30 Representations, 127, who has found this petition from Louvet at the National Archives (Jean-Baptiste Louvet to the National Convention, 23 February 1792, Archives nationales, C147, no. 167). She also points out, along the contestation in relation to the legislation of 30 August 1792, favourable to the theatres, some protestations coming from the authors and editors of music.

[8] Procès-verbaux, 1 : VIII, IX. Barère, Condorcet and Sieyès had been elected to both Committees during the previous autumn (1792), and had chosen then to seat at the Committee on the Constitution. Lakanal would stay particularly active under the Convention in favour of an efficient diffusion of learning – still regretting in 1794 that since 1789, “nothing” had been done for the instruction of the Nation – (Rapport… sur les écoles, 32 : “On s’est étonné de ce que depuis cinq ans que la révolution est commencée, elle n’ait rien fait encore pour l’instruction…”).

[9] Ibid., XII. Condorcet would soon face a decree of arrestation from the 8 July of the same year.

[10] Procès-verbaux, 2 : III.

[11] See Procès-verbaux, 1 : 349-354, Session of 20 February 1793, Rapport et projet de décret sur la propriété des auteurs dramatiques au nom du Comité de l’Instruction Publique par P.-C.-L. Baudin, député des Ardennes. The report, which was printed but not submitted orally to the Convention (n 5, 347-8), was also announced in the N° 168 of the Journal des débats et des décrets (4 March 1793) (n 2). On the question of the right of dramatic authors, see f_1791 (with the report of Le Chapelier).

[12] Ibid., 350 (Baudin’s report starts), 351. Every reference to dramatic rights and relationships between authors and theatres and actors had of course been suppressed: “dans le sens où les comédiens l’entendent…” (in relation to “public property”, 352, or “but moral de l’art dramatique”, ibid.).

[13] From “Le génie a-t-il ordonné… [to] dans l’indigence !...” (see f_1793). Lakanal’s report is also reproduced in the Procès verbaux, 2 : 82. Guillaume notes that Lakanal recognized its “authenticity” by reproducing it himself in his Exposé sommaire des travaux de Joseph Lakanal, published in 1838 (Paris, Typographie de Firmin Didot Frères : 1838), 9-10.

[14] See for example M.-C. Dock, Étude sur le droit d’auteur (Paris : LGDJ, 1963), 157, who underlined, somehow ambiguously since no further explanation was proposed, that the fact that the law recognized the “author’s right” constituted yet “in itself” (“en soi”) a “considerable progress”: a considerable progress because recognized by a law under the Revolution? On another level, for C. Hesse (113), the decrees of 1777 are basically considered as a reaffirmation of “the absolutist interpretation of royal law”, the author himself being essentially a “creation of the absolutist police state” (more than a creation of “liberal bourgeois revolution” – on this question and for more details, see f_1777a, and our commentary).

[15] On this question and these formulations from François Hell, see his report and our commentary (f_1791a).

[16] Procès-verbaux, 1 : 352 : “Ce n’est que sous le rapport de la seule critique que le plus grand des critiques a dit : ‘Dès que l’impression fait éclore un poète, Il est esclave né de quiconque l’achète.’” Boileau is not explicitly mentioned by Baudin, but these two verses are from his Satire IX (composed in 1667 and published in 1668). The following verses, not quoted by Baudin, are interesting, emphasizing this submission of a poet to the “caprice” of the reader: “ Il se soumet lui-même aux caprices d’autrui, Et ses écrits tout seuls doivent parler pour lui.” (Oeuvres Poétiques de Boileau, vol. 1, Paris : Publication de l’imprimerie générale, 1872, 140).

[17] L. Pfister, L'auteur, propriétaire de son œuvre ? La formation du droit d'auteur du XVIe siècle à la loi de 1957 (Strasbourg PhD thesis, 1999), 470-71, indeed analyses that Baudin was defending, against the decree of August 1792, the rights of dramatic authors to beneficiate equally from this double revenue from the exploitation of their plays: on this, see f_1791 (Le Chapelier and the right of representation).

[18] Sieyès, Qu’est-ce que le Tiers-État ? (Troisième Édition, 1789), 163 : “Les avantages par lesquels les Citoyens diffèrent, sont au-delà du caractère de Citoyen. Les inégalités de propriété et d’industrie sont comme les inégalités d’âge, de sexe, de taille, etc. Elles ne dénaturent point l’égalité du civisme…” Again, any legitimate legislation should only protect what there is, if what there is does not harm the “common interest” (ibid. “La loi n’accorde rien, elle protège ce qui est, jusqu’au moment où ce qui est, commence à nuire à l’intérêt commun.”) To the contrary, the usurpation, in particular by the means of privileges, of the lucrative or “honorific” positions, are indeed a “treason against the public good” (“…une trahison pour la chose publique…”) (9-10).

[19] “Article 4. Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law.” (translation from the Conseil Constitutionnel website : https://www.conseil-constitutionnel.fr/en/declaration-of-human-and-civic-rights-of-26-august-1789).

[20] Sieyès, who regretted however, as we have pointed out, that the question of the organization of the literary market could not be discussed more seriously in these circumstances (see f_1790, and commentary). On the decree of August 1777 concerning the duration of book trade privileges, see f_1777a.

[21] See f_1826, but also from 1839, before the Chambre des Pairs and the Chambre des Députés, when, within the latter, Lamartine proposed 50 years p.m.a and had to face a strong opposition, starting by Augustin-Charles Renouard, regularly mentioned in our commentaries as an ardent critic of property, and who authored an important treaty, in two volumes, on the “droit d’auteur” in 1838-39. On these debates, often polluted by this question of duration, see f_1841 (Report of Lamartine and parliamentary debates from March and April 1841 on literary property legislation). A duration of 50 years after the author’s death would be secured by the Act on the Rights of heirs and of lawful representatives of Authors of 14 July 1866 (see f_1866).

[22] “… à proprement parler” : see Grus v Ricordi and Durdilly & Co, Cour de Cassation, 25 July 1887 (f_1887), a decision pertaining to international copyright treaties.

[23] See notably the law of 16-24 August 1790 on the Judicial organization (relative to the codification, but certainly relevant to any revolutionary legislation): “…et il sera fait un code général de lois simples, claires et appropriées à la constitution”, article 19 – Titre II. Des Juges en general –.

[24] See the Court of Cassation’s decision Robin v. Romagnesi, 17 November 1814 (f_1814).

[25] This decision is discussed, along the conclusions of Merlin (see also Merlin on counterfeiting, f_1825), under f_1814a.

[26] In fact, even before an originality criterion was explicitly formulated by further decisions: see notably the Court of Cassation decision of 8 August 1861, Havas, Bullier & Co. v. Gounouilhou, followed, for photography, still by the same judges on 21 November 1862, by Betbéder and Schwalbé v. Mayer and Pierson, respectively f_1861 and f_1862. On these questions, and how the courts attempted to deal with the application of a new criterion, originality, and how it would be applied, see in particular f_1857 (the Fontana case) and f_1869

[27] See for example J. Ginsburg, “A Tale of two Copyrights: Literary Property in Revolutionary France and America” (1990) 64 Tulane Law Review 991, 1010.

[28] E. Pouillet, Traité théorique et pratique de la propriété littéraire et artistique et du droit de représentation (Paris : Marchal et Billard, 1879) 354–55: “Est-il possible d’exprimer plus clairement que, du dépôt, dépend non pas la propriété de l’ouvrage, mais la recevabilité de l’action en contrefaçon? La preuve que la propriété de l’œuvre ne saurait être attachée au dépôt, c’est qu’il y a des œuvres, nous le verrons, dont le dépôt n’est pas et ne peut être exigé par la loi”(on the analyse of this judicial work, although a Court of Cassation decision of 1834 had not been decisive, it was followed by clearer decisions in 1844, 1863, 1866). Similarly, if the author’s right really was held to be unequivocal, it should have been protected in the same way by all international agreements. As already discussed here (and in relation to the Sieyès projet – see f_1790),  the gap between the right theoretically secured and its effective exercise was not easier to fill in relation to its international implementation, but some first steps were however made for reasons of “universal justice” with the Decree of 28 March 1852 (f_1852), that finally granted protection against counterfeiting to the authors of works published abroad.

[29] To use Alain Strowel’s words about the 1793 Act, in Le droit d’auteur européen en transition numérique. De ses origines à l’unification européenne et aux défis de l’intelligence artificielle et des Big Data  (Belgique : Larcier, 2022), 34 : “C’est dans ce langage emphatique et pompeux d’hommage est rendu à ‘l’homme de génie qui consacre ses veilles à l’instruction de ses concitoyens’…”

[30] C. Hesse, “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), 39.

[31] Of course, this intimate connection between freedom and property, found in article 2 of the Declaration of the Right of Man and of the Citizen, had been notably influenced by Locke. See also, for example, R. Savatier, Les métamorphoses économiques et sociales du droit privé d’aujourd’hui (Seconde Série) : L’universalisme renouvelé des disciplines juridiques (Paris, Dalloz 1959) 6: “Le droit d’être pleinement propriétaire figurait ainsi parmi les Droits de l’Homme, comme garantie essentielle, et virtuellement égale pour tout homme, de sa liberté individuelle.”

 [32] See Anne-Marie Patault, Introduction historique au droit des biens (Paris: PUF Droit fundamental, 1989) 235–37, who alternatively speaks of the “charge affective” and “subjective” of the right of property (235) but also its “résonance affective” (236), expressing “la plénitude du droit du titulaire” (ibid.). She also found and mentioned very opportunely this court decision, which was in fact dealing with a dishonest attribution of a name to a book, but erroneously quoted under the authority of the Court of Cassation (with the following reference: Sirey, 155. 2. 1827): it is in fact a decision from the Royal Court or Appeal of Paris of 20 March 1826 (Sirey 214. 2. 1825-27) (“Considérant, en droit, que le nom des familles est leur propriété exclusive…”).

[33] This was already perfectly established from Louis d’Héricourt’s memorandum (f_1725b), who compared more the effects of these rights, as Diderot would even more explicitly do a few decades later, than the objects themselves (a literary work and a land).

[34] See Linguet's opinion on the Ruling of 30 August 1777 regarding privileges, the final version of his 1774 memorandum (see f_1777b) : “Certainly, if there is any property which is sacred and incontestable, it is that of an author over his work.” The full Séguier’s report – Procès-Verbal de ce qui s'est passé au Parlement touchant les six arrêts du conseil Du 30 août 1777, concernant la Librairie, avec les Comptes rendus à leur sujetis available at f_1779 and is to be linked with these decrees (see f_1777a, with its commentary).

[35] Portalis, Le Moniteur Universel, May 1839 (session of the 25 May 1839), 774 (A “doctrine” which was neither “new” nor “unknown to us”): “Dès 1779, M. l’avocat-général Séguier parlant devant le parlement de Paris, disait dans une occasion solennelle : ‘Dans le 17e siècle, on commença à sentir le droit de propriété des auteurs […] Cette propriété est incontestable […]’.”

[36] Ibid. : “Non. C’est encore lui, hors de lui : là, il n’y a pas seulement propriété par appropriation, comme disent les philosophes, mais propriété par nature, par essence, par indivision, par indivisibilité de l’objet et du sujet.” As to this influence on the nature of the droit d’auteur French doctrinal reflexions, it probably stemmed from 1860s monographs and articles by French jurists such as Alfred Bertauld and André Morillot. See André Morillot “De la personnalité du droit de publication qui appartient à un auteur vivant” (1872–73) Revue critique de législation et de jurisprudence 29 and “De la nature du droit d’auteur, considéré à un point de vue général », (1878) Revue critique de législation et de jurisprudence 111 (see respectively f_1872 and f_1878) and also Alfred Bertauld, Question pratiques et doctrinales de Code Napoléon (Paris : Imprimerie et Librairie générale de Jurisprudence, 1867).

[37] Portalis, Le Moniteur Universel, 1839 (session of the 27 May 1839), 794, who also, during this session, pointed out the distinction between invention and literary works, or rather, claiming that he did not believe relevant or useful  to develop this question before the Chamber: “…et je ne crois pas avoir besoin de développer cette pensée devant une assemblée comme celle-ci.”

[38] See f_1828 and f_1845, on the right of publication, but also f_1902, the decision Lecocq, abovementioned, which recognized judicially the “droit moral”.

[39] M. Plaisant, La création artistique & littéraire et le droit (Paris : Rousseau & Cie. Eds, 1920), 122 (n 2 : Kohler, Urheberrecht an Schriftwerken, 1907, 439, n 1 & 461, n 37). This interesting book has long been very difficult to find, even in specialized libraries, and has just been re-edited by our colleague from the Law Faculty of Poitiers, Alexandre Portron, with his large introduction of this work (particularly on Plaisant’s original positions and rhetoric): La creation artistique et littéraire et le droit – presentation par Alexandre Portron (Paris : Dalloz, Biblothèque Dalloz, 2022). Marcel Plaisant died in Paris in 1958, and had been a member of the Commission de la propriété intellectuelle which would work on the 1957 ambitious projet and law, but was also a diplomat and a major specialist of international law relating to intellectual property.

[40] Quoted by A. Portron, “Marcel Plaisant ou la nature et les Anciens comme sources des ‘droits de la pensée’”, Cahiers poitevins d’histoire du droit, 2020, n°11, 268. (M. Plaisant, Traité de droit conventionnel international concernant la propriété industrielle – Paris: Sirey, 1949 – 6).  However, Plaisant, in this treaty on “industrial property”, developed here a parallel between invention and literary works, less convincingly however, since the “prestige of the past” through the use of property, had clearly not been identical through royal legislations (and even the revolutionary ones – see notably f_1762 and f_1777a, and f_1790a with Boufflers’ report).

[41] M. Plaisant, La création…, 122 : “En dehors du droit pécuniaire et patrimonial, l’auteur exerce sur son œuvre une haute suzeraineté, si bien que l’homme est blessé lorsque l’œuvre est atteinte.” About a “domaine éminent”: “Cette revue de législation et de jurisprudence qui fait apparaitre le droit moral en action nous montre qu’il peut survivre au droit pécuniaire et que, malgré l’effet des contrats qui évoluent dans le jeu du domaine utile, il reste, lui, entre les mains de l’auteur à la guise d’un domaine éminent.” (133-34).

[42] To use Alexandre Portron’s (268) own (but of course very true) words. A. Portron who indeed points out (ibid.) Plaisant’s “realism”, in the Aristotelician sense, and his adhesion to the scholastic formula “Adaequatio rei et verborum, et intellectus” (the adequation between “la chose” – the thing or reality – and “le mot” – the word –) : “Pour tout législateur il s’agit là d’un projet magnifique (car impossible) : écrire la loi de la réalité (ce à quoi les Modernes avaient d’ailleurs cru pouvoir parvenir par la Science…).”



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