# Primary Sources on Copyright - Record Viewer
Linguet's memorandum, London (1777)

Source: Bibliothèque universitaire de Poitiers (SCD) : Linguet, Simon-Nicolas-Henri, Annales politiques, civiles, et littéraires du XVIIIe siècle, tome III, Londres, 1777, p. 24.

Citation:
Linguet's memorandum, London (1777), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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[...]

      This ruling, as may be seen, was given in response to a series of mémoires,
to a dispute which arose between the booksellers of Paris and several
provincial ones; it is therefore a judgement on private interests, rather than a
general law. If there was a party whose rights were infringed by it, and yet
who had not been permitted to assert them, then according to the rules of our
legal system, that party could oppose the ruling, and appeal to the Sovereign
to reopen a debate on it, in hope of having it revoked. Indeed, this is precisely
the situation in this case.

      The main party in this ruling are men of letters. It does not only limit their
property rights; it destroys them. Article V, whilst appearing to recognise and
affirm their property, in fact does irreparable damage to it. However, their case
was not heard; they were not even summoned.

      It is perhaps a little strange that under the pretext of enforcing the law
between their agents, between those secondary representatives to whom they
entrust the task of communicating their creations to the public, we are
accustomed to ignoring authors and their rights. In this way, by giving legal
status to actors, it is not only the author’s share that has been tied to the
income



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of performances, but also the very duration of their rights of property to their
plays. A general confiscation has been pronounced, to the theatres’ profit, of
all dramatic works which have had what are known as three runs. Moreover,
this confiscation is even anticipated by law, in certain cases, when the play is
a flop [tombée dans les règles]; a somewhat ridiculous expression, coined to
designate plays which attract small revenues, so that when a play does not
bring in a certain sum to the actors, they are consoled by abandoning the
whole play. Companies of actors are ogres who are permitted to eat their
suppliers alive when they lack provisions.

      In this way, success and failure work equally against the author: if he
succeeds, his glory is harmful to him, because his three runs are quickly used
up; if he fails, the ordeal of defeat is compounded by that of financial loss.
One way or another, his property rights are transferred, without his consent, to
people who have no right to them.

      Perhaps men of letters should blame themselves for these administrative
misjudgements. They have never sought to enlighten the authorities regarding
this interesting situation. Disunited among themselves, absorbed in
conspiracies which divide and frustrate them, and which also dishonour them,
they have never managed to unite in defence of their possessions.
They have even – with what scrupulousness! –



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managed to appear to disdain them. It is only with embarrassment that they
seem to claim the property of their creations. While they grovel at the feet of
the most contemptible of people to obtain meagre pensions, they affect, at
least in public, to disdain the honest, legitimate and glorious reward which
accompanies high regard when a good work is sold; they have never made a
sustained effort to obtain protection from the authorities for these possessions
of theirs, or to curb the acts of piracy which violate them.

      Perhaps it is those among them who are without talent who, from time
immemorial, have upheld this ridiculous prejudice; and today, it is our so-
called philosophes who sustain it. Indeed, it is easier to seduce a minister’s
mistress, or his valets, than the nation; and, by flattery, to extract an annual
salary from the authorities under the name of a ‘pension’, than to persuade
the public to buy a bad book. Just as the Boisroberts and Chapelains of the
last century, so now the d’Alemberts and Marmontels of our own century are:

            ‘the most profitable of all minds.’

      Before now, this apparent disdain for the direct and honest fruits of literature
was merely the result of lazy greed; but, thanks to the philosophy of our day,
which creates profundity out of everything, it has become the object of fine
calculation, and of a very craftily devised theory.


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      What we call today les beaux esprits, that is to say, the plotting, scribbling,
intriguing, manipulative sect of the Encyclopédistes, cannot flatter itself, in the
field of literature, with a single one of those solid successes which universal
esteem, confirmed by the authorities’ assent, recognizes with a useful reward.
Their sect consists only of mediocre men: those of their works which lack the
merit of scandal simply die away, even before having being noticed; as for the
others, always stamped with satirical venom, or seeds of sedition, any
brilliance that they display is only due to their fanaticism, and their apparent
tolerance is no more than manipulation and fraudulent actions. Enemies of
religion and of authority, and consequently always proscribed, these old devils
howl away only into the darkness; it is from their hiding places that they claim
to declare the arrival of the dawn.

      Therefore, they should never enjoy the profits of clandestine editions through
which foreign presses are helping them to poison the public. While literary
rights are sacrificed, they do not lose a thing.

      On the contrary, it is important to them that literature is believed to be
fruitless, and that such misunderstandings are not exposed. They profit from
the general oppression in which literature appears to languish. Staying close
to the generous sources which seek to reward literary efforts, it is they who
appropriate this generosity for themselves, despite having no right whatsoever
to such indemnities, and despite generally having nothing to offer


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but works which are rightly scorned, or which no less justly are deemed to be
criminal.

      Let us be on our guard: their supplications are never more brazen, nor the
contributions of their patrons more generous, than at the moment when they
most ought to fear punishment. When M. Marmontel, after having been
expelled from the Mercure, sought and obtained a pension of 5000 livres, that
is to say an amount not always enjoyed by a well-respected general officer,
he had recently, without motive and purely for his own amusement, gravely
insulted a man of great quality whose name, person and position were each
equally deserving of respect. When the same writer received the title of
Historiographer of France, along with the 3000-livre pension attached to it, he
had just been found guilty of writing a scandalous work of prose, after having
wearied the public for the previous twenty years with his boring poetry.

      Certainly, this shower of gold would not have been so abundant, in similar
circumstances, if he had not had the occasion to remind the public of how
thankless a task literary work is; and his lamentations would have been
exposed as simply ridiculous, had someone responded to him that Parnassus
yields a real material harvest as well as bestowing glory.

      So, it can be seen how vital it is to this kind of person, not only that men of
letters complain in general of the sparse fruits of their labours; but also that
they genuinely have something to complain about.



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      And this ploy is all the more important to them because they turn it to their
own advantage, even when, in reality, they are known for their evasion of
common right, which makes writing one of the most modest of occupations.
Nobody knows better than they the art of holding booksellers hostage: there is
nothing like the hand of a philosophe to squeeze those sponges dry.

      The "Encyclopédie" alone, for example, brought one of its two editors over
200,000 livres in cash, but do not imagine that that was all – even in those
times, the trickster, catered for so generously by his patrons, laid claim to the
glory of literary destitution, and to its resources. He travelled all over, begging
for pity and assistance. He wearied the public with his lamentations, and his
patrons with his importunities. To hasten their liberalities, he pretended to be
reduced to selling his own library.

      Socrates, virtually naked, spoke well to his friends, saying "if I had had money,
I would have bought a coat", but in saying this, Socrates was indeed destitute:
he displayed neither the art of stirring up the public to persuade them to lavish
money on the most absurd and imperfect of compilations, nor the art of
extracting two hundred thousand francs from them.

      Of all the varieties of beggars, the most vile and most criminal is the kind who,
though having no need, takes on such an appearance, to attract generous
gifts; who thus adding


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lies to greed, cheating his benefactors and depriving those in genuine
distress, embraces his rags without shame, because he sees in them a
source of treasure.

      The truly honest man, who is proud in proportion to his scrupulousness,
whose noble soul, with the rigidity and awkwardness which accompany great
stature, would neither seek such gifts, nor pride himself on such shameful
recompense. He refuses the kind of assistance which would make him blush.
But he asks, without shame or scruple, for that which rightfully belongs to him.
He wants to enjoy his rights.

      He sees that from the monarch to the labourer, each man’s livelihood
depends on remuneration for his work, whether voluntary or forced, and that
were the man of letters to pride himself on expecting no such reward for his
own work would be committing a true offence against himself and against his
posterity; that if his descendants owe to him the splendour which he gives to
their name, he equally owes to them the advantages which must accompany
this splendour, in conformity with all the rules of society. He must preserve his
honour, and not allow himself to fall into disrepute through complacency or
through shameful gifts, nor reject from his household such affluence as would
make him respectable in every sense.

      Why is it that old families are so attached to the lands whose title they bear? It
is because these names remind them of the founders


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who first brought them fame. They are patents of nobility whose lustre seems
to increase with each passing year, as long as it is not tarnished by the claims
of outsiders, and provided that this glory is not eaten away by the cries of
need, or by reckless frivolity. Should it not be the same for the heritage of
great writers?

      In this case, property would be even more flattering, because nobles could not
be lucrative without being honourable. The sales of a book, especially after a
certain time has elapsed, are in proportion to its quality, so an author whose
writings would survive this test would see his fortune grow as well as his
reputation; upon death, he would pass on to his descendants titles which
would make them both respected and wealthy; they would not be reduced to
hollow fame. Just as the writer himself could be confident that his life was not
tainted by a reliance on hand-outs, so also his family, after his death, would
not be dishonoured by poverty. Without any scheming or craftiness, his family
would see their domains prosper by the day, and everyone would share
confidence in the principles of a continually renewed profitability.

      It is therefore very advantageous for men of letters, that this subject be
discussed and explored, and equally that the nature of what we call privileges
in bookselling should at last be properly defined, and that that of the author’s
rights to his work be determined once and for all.

      Perhaps this examination is of no less importance


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to the public itself. If, as surely it cannot be doubted, the splendour of letters
contributes to a nation’s glory; if, from a political vantage point, they
simultaneously supply a precious commercial object, a means of improving
morals, and an instrument suitable for mastering minds; if, for so many
reasons, letters have always been given pride of place by the authorities, and
rightly so, then it is surely essential to encourage those men who are called to
cultivate them by nature. One must be on guard against the danger of
demeaning them, which ought to cause us more concern than their
sometimes unpredictable behaviour.

      The current state of affairs exposes them constantly to the temptation of
shameful greed. Having no claim to stake on their rights, and having to rely on
their own resourcefulness, they acquire the habit of prostrating themselves
which damages their talents, if it denatures them; or even if it only embitters
them, it makes them fearsome. They crawl on hands and knees to obtain
charity from the Mercure or from the Gazettes, which in any case they are
often refused, or at least are only given sparingly. After all, to spread benefits
more widely, you do not enlarge the cake, you make the portions smaller.

      However, the time consumed in search of these handouts is wasted; the
writer and the public both lose out. When the writer returns, he is besieged by
the sorrow of rejection, or by resentment over the limited scale of his success,
which lead to



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further losses. His years flee by, and he exhausts his energy in pursuit of a
prey which is almost always unworthy of him, or in fighting over it with his
rivals.

      Properly recognised literary property would save talented men from such
disgrace and harm. Since they would receive only from the public - from
whom alone, after all, it is proper to receive, and from whom all social classes
receive, without exception - they would strive only to deserve public gratitude.
Since the only way to secure this in a lasting way is to present the public with
works worthy of its esteem, writers would thus have another incentive to
devote themselves to study, and to act more responsibly towards the public in
their writings and actions.

      I intend then to proceed with my plan, and to do a true service to the nation in
dealing with this subject. First of all, we must clarify our ideas, and attempt to
establish reliable principles. We must determine firstly what a privilege is not,
and then what it is, in the book trade. Then, we shall examine whether this
type of concession should be eternal, or if the authorities may be allowed to
restrict it.

§1.

On literary privileges. That they have nothing in common with exclusive
privileges in the Arts.

      We use the same word for the patent which authorizes a single manufacturer
to produce a certain fabric,


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as for that requested by a writer who wishes to retain the sole right to publish
his work. From this, it has been concluded that they are both of the same
nature, and that they should be understood according to the same rules.

      However, nothing could be more different, and the damage to literature which
results from such a conclusion is another evil which must be added to the long
list of those produced by ambiguity.

      If all men were fair and honest, there would be no need for privileges, even in
the arts. There would be no citizens who, in order to benefit from a useful
discovery, would not willingly pay tribute to its inventor, and whose gratitude
would not lead them to contribute towards reimbursing the research and effort
which lay behind the invention. However, since such feelings of benign justice
always give way, in human society, to feelings of greed, we have been forced,
in the arts, to grant privileges to individuals who forge new paths; that is, the
power to prevent anyone else from walking the same path without their
permission, for a fixed period of time.

      From this perspective, the word ‘privilege’ carries the idea of a restriction of
common rights. Its meaning initially appears unfavourable, but does it –
indeed, can it? - have the same meaning in the realm of the book trade? Does
it produce the same effects?

      When Vanrobais was granted an exclusive prerogative, in a specified region,
to make the cloth which made his name famous,



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the right was denied to anyone else with hard-working hands and good wool
at his disposal to weave, dye and create from it fabric which is soft to the
touch and pleasant on the eye. The industry of an entire region was sacrificed
to that of a single individual.

      However, when a Racine or a La Fontaine are granted exclusive rights to
produce multiple copies of their masterpieces, surely this does not harm
anybody. This restriction did not prevent Pradon from staging his production
of "Phèdre", nor would it have prevented La Motte from staging a conversation
between a wolf and a lamb in his own way, had he so wanted. If I may be
permitted to speak in simple terms, since I am forced to use trivial
expressions to discuss such a noble object, what is forbidden here is not to
make cloth like that of Racine and La Fontaine, but to take the cloth that they
have made, and to sell it without their involvement and without paying them.
This first striking and decisive distinction places literary privileges in a different
category from all others.

      Moreover, when a gifted craftsman builds a new machine, or when an
intelligent manufacturer uses his equipment to produce a new type of cloth,
they may well not have attained perfection. New perspectives, added to the
initial ideas which directed their original activity, would further improve their
discoveries; the privilege, which stifles competition, is an obstacle to progress
in these arts. It should be granted initially in order to guarantee



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recompense to the inventor for his work, but such fetters cannot and should
not remain eternal; time and politics soon come and break them, and
temporary captivity yields to profitable independence.

      Is the same true of literature?

      A literary work springs forth from the author’s mind, as perfect as it can be; or
at least, if it is susceptible to a few degrees of improvement, it can only
receive them from its father’s hand. It necessarily remains at the point at
which it was left by the power which brought it into the world. The public, no
doubt, would like to be presented with a poem even better than Le Lutrin , but
would it permit that any hand, even a skilled one, should dare venture to alter
it, and that a new edition of it should be undertaken, containing new
additions? Surely not! The restriction which concentrates in a single hand the
right to publish "Le Lutrin",* in its existing state, does not prejudice the progress
of poetry, in the way that a ban on imitating and improving a new design or a
recently built machine could damage industrial progress.

      That is not all. In order to imitate a machine or to counterfeit a particular
fabric, both time and a certain amount of skill are required. In these fields,
copyists cannot be totally devoid of talent. They must guess the artist’s secret,
or grasp, with scrupulous precision, the rules which he followed. Not
everybody is capable of this infidelity,


_________________________________________________________

*) A mock-epic poem by Nicolas Boileau-Despréaux (1636-1711).







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which requires a particular kind of skill, and whose procedures are
demanding.

      Besides, the desire to risk such cheating can only spring from the confirmed
success of the object which arouses it. When such imitation takes place, the
inventor has already received, or is assured of receiving, his reward in the
form of further work attracted through the fame of his success.

      Ultimately, the public, informed through this very fame, will always prefer to
attend to the original inventor, by whom they will rightly flatter themselves as
being better served, rather than to entrust themselves to the imitator, in whom
they cannot have so much confidence. In this way, privileges in the arts can
appear less necessary, or breaches of them can appear more excusable. But
I ask again, as in my previous two points: is the same true of literature?

      When an author presents his work to the public, he opens himself up without
reserve or limitation. Avid readings of his ideas and the way in which they are
communicated uncover such material just as well in a furtive imitation as in a
genuine copy published with the writer’s authorization. An obedient workforce
is all that is required to produce an infinite number of copies, at the most
astonishing speed.

      Finally, when any artist bestows to humanity an invention which facilitates
work or provides commodities, he does not wear himself out by producing a
multitude of models all at once; it could be said that the person who borrows
his ideas and uses them elsewhere


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deprives him of potential benefit, but he does not expose him to certain ruin.
He denies certain gains to the inventor, but he does not cause him real
losses.

      However, in the book trade, an author, or a person who publishes a work at
his own risk, must necessarily begin by spending a great deal of money on it.
It is a significant material outlay, which must be supplied independently of the
intellectual outlay, so to speak, invested in the manuscript. This is another
essential difference which prevents the identification of what are known as
literary privileges with prohibitions bearing the same name in other areas.

§ 2.

On what a literary privilege is.

      The preamble to the Council’s ruling offers definitions on this subject which,
even with all the insight and good will in the world, can only lead to
misunderstandings.

      "The literary privilege is an act of grace based upon justice": but these two
words are incompatible, in the sense they have here: in truth, an act of grace
is not always unjust, but justice is never an act of grace. Nothing more
unfortunate could happen to men of letters than to see the tribute they
rightfully deserve transformed into a favour, liable to be modified at will.

      "This act of grace, if it is granted to the author, has as its object to
recompense his work". Certainly not:



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in order for it to constitute recompense, this concession would need to
produce either honour or benefit; in reality, a privilege in the book trade
produces neither of these. The author who obtains it is even obliged to pay for
it, which excludes any notion of gratification.

      "Privileges are granted to the bookseller in order to guarantee him
reimbursement of his advance payments, and compensation for his costs".
Again, this is false: they do not guarantee him a thing. A privilege does not
compel public to buy the work which bears it. Every day, you can see
booksellers brought to ruin, despite the formal written protections offered them
by the chancellery.

      The definitions given in the preamble are therefore not correct: they express
well what people have believed on this subject until now due to a long-
standing abuse, but the foundations upon which they rest are no more secure
than this.

      So, what is a literary privilege? It is the granting of recognition, by public
authority, of the property rights of the author, or of his concessionaires. In
literature, it is the equivalent of notarized deeds or judgements, which confer
and guarantee citizens’ rights over everything which constitutes what are
known as civil possessions. When a sentence awards an inheritance to an
individual, or when a public officer declares a transfer of property rights
through the writing of deeds, the judge


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or the notary do not actually give anything; they only consecrate the
authenticity of an anterior right in the person of one of the parties. It is
precisely the same for the privileges in question here.

      They state that a certain individual is the genuine author of a work, or that
another individual has acquired that author’s rights. The Prince is a powerful
and armed witness, who, in certifying this creation or this agreement, takes on
the obligation to defend them. The privilege is the seal and guarantee of a
peaceful enjoyment of rights, but it is not the source of this enjoyment.

      If the privilege had the slightest influence on property; if a writer, after having
produced his work, only truly became its master by the investiture of another’s
hand, and if he owed his paternity, not to his own creative efforts, but to the
parchment which declared it, then talent would be the most grievous of all
gifts. By seemingly elevating the individual man above humanity, it would
actually strip him of his most basic prerogatives. Without a doubt, the well-
known shoemaker, the true owner of the shoe to which he gave only the form,
would be much more favourably treated by the laws than Corneille and
Racine; because they, with each new stroke of their genius, would need yet
another legal formality to secure their rights.

      First principle : the privilege does not give anything


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to the author. It only assures him of the protection which the government
owes to all classes in the social hierarchy: it is a protection against
infringement, and not a liberality.

      Once this point has been established, it is easy to see what a privilege is from
the booksellers’ viewpoint: its nature does not change when its application
varies. The representative’s rights cannot be more extensive or more
sacrosanct than those of the original owner, but nor can they be more
restricted.

      Were he only a merchant, the bookseller would have no rights, or at least he
would only have those which commerce confers on the circulation of any
goods. But in his role as an intermediary agent, established by the writer
between himself and the public, as a financial depository, or a voluntarily
substituted buyer, and in return for an agreed price, he continually and fully
assumes the author’s prerogatives. To dispute the bookseller’s property rights
is to misunderstand those of the author.

      These, I believe, are principles whose evidence cannot be rejected. They are
established and accepted in England, in Holland and in Switzerland, indeed
wherever publishing activity has necessitated direct government intervention,
to regulate its workings and to curb encroachments on literary rights, in the
same way as with all other kinds of property.


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& 3.

On the duration of privileges.

      Since a literary privilege is only a mark of recognition of pre-existing property
rights, it cannot limit those rights. If they are certain when the privilege begins,
why would they cease at the moment of its expiry? If one insisted on making
the enjoyment of such rights dependent upon the renewal of the privilege,
then one would have to promise not to refuse it.

      The prince, without question, has supreme authority to withdraw the right to
publish a work which he deems reprehensible; the refusal of authorization,
even the suppression of the book, and thus of the author’s property, is
therefore the punishment deserved by the author’s crime. Dangerous beings
are prevented from entering the world, and criminals are killed, to protect
society from the problems they could create.
But once such a being has been born, or once its useful existence – or even
its indifferent existence – is no longer the responsibility of the state, there is
no authority which has the right to take its life, without breaking the basic laws
of all human societies. A privilege must never expire, or must always be
renewed, because the property rights which warrant it cannot perish.

      The new law pays real tribute to this truth. "Any author," states Article V, "who
obtains, in his own name, a privilege for his work, shall have the right to sell it
on his own property, ... and shall benefit from its privilege, both he and his
heirs, to perpetuity."



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      There can be nothing more wise and just than this measure, which was
sought by reason and equity one hundred years ago, when France was the
only country, at least among those which honour the arts and their plenteous
fruits, which did not recognise the need for it. But does not the second part of
this article contradict the first part?

      This right will be perpetual, "as long as the author does not retrocede his
privilege to any bookseller; in which case, by the simple act of cession, the
duration of the privilege will be reduced to that of the author’s lifetime".

      Upon reading this, it is certainly permitted to men of letters to feel surprise and
pain mixed with their gratitude. Excluded for so long from the rights which all
other social classes enjoy, they are granted them only to see themselves
deprived the next moment in the most ruinous and humiliating fashion!

      Of the two parts of this article, one gives them nothing, and the other strips
them of everything.

      The first part gives them nothing. It merely extends to them common rights,
which state that any proprietor can use his possessions as he pleases.
Certainly, if there is any property which is sacred and incontestable, it is that
of an author over his work. This is not a type of property acquired, like others,
by exchange, and whose possession, when formally scrutinized, can at times
be cast into doubt or even annulled. The composition of a book, of any kind,


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is an act of genuine creation; a manuscript is part of the external substance
the writer produces. It was an inconsequential oddity which obliged the writer,
against his wishes, to go through a secondary agent when he wanted to
present his work the public.

      But there are two ways of benefiting from one’s rights: one, by exercising
them oneself; the other, by relinquishing them in exchange for a sum which
compensates their loss. Why is it that of these two methods, only one of them
is available to men of letters?

      What! In future, will their property depend on their patience in exposing
themselves to the mercenary particularities of commerce? Will their estates
be confiscated after they die, if during their lifetime they do not plough them
themselves; if they preferred to receive a single cash payment instead of the
steady income with which their estates could have supplied them for many
years?

      What, then, is the purpose of this restriction?

      Is an agreement between a man of letters and a bookseller a crime? Does it
somehow go against morality, against public decency, or against the common
peace of society? Do men of letters constitute a debased class, incapable, in
the eyes of the law, of undertaking sound commitments? Or does the law
regard them as mere usufructuaries, whose property rights are swept away
when they die? Is the book trade a shameful business, whose agents cannot
be watched over too carefully, to whom public confidence



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owes no trust, and against whom one can constantly take new precautions,
without scruple, because of the constant threat they pose of further abuses of
power?

      It is easy to identify, in this measure, the influence that the indiscreet protests
of men of letters have had against this class of men, by whom they have
always complained of being tyrannized, and yet whom they cannot do without.
Having broken free of the chains in which they were imprisoned; aggrieved at
profiting nothing from their work but a puff of smoke, often poisoned by malign
vapours; astonished to see booksellers operating on direct results and
consequences and applying rules of equity to their trade, principles which
govern all other businesses, whilst they found themselves subject to a
strange, capricious and unjust law which violated all their rights; instead of
addressing the distant root cause, they took vengeance on these agents,
closer to home and defenceless.

      If booksellers enjoyed success, they were suspected of dishonesty. If they
failed, it was attributed to their lack of skill. If, before concluding a transaction,
they showed a certain defiance and thrift, well justified by the state of affairs,
by the uncertainty of literary property, by the forgery of pirate editions, they
were accused of greed, injustice and tyranny. And if, after concluding the
transaction, they wanted to set the terms and conditions, if they asserted
control over a manuscript because they had bought it, men of letters cried out
against such severity. Just as there



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was specific and absurd legislation for literature, it seemed also that this party
had a scrupulousness and probity unmatched by anything in the rest of the
world. The reciprocal degradation of these two groups reached the point at
which the man of letters always saw in the bookseller a plundering disposition,
and the bookseller always saw in the man of letters an inclination to
dishonesty.

      Since the writers spoke more loudly and elegantly, and since the fortunes of
certain booksellers’ fortunes seemed to justify these writers’ charges, they
won a greater number of supporters; for a long time in France, we were led to
see booksellers as a kind of vampire, feeding off all the fruits of literature.

      Certainly, this prejudice is unfair; or at least, if it has any foundation, it is not in
the true nature of things, but only in abuses encouraged by poor legislation.
Neither the book trade nor individual booksellers, in general, deserve this
anathema.

      All kinds of trade which employ a considerable number of workers, and which
consume a lot of raw materials, are valued by enlightened governments; but if
there was one trade which had more influence on the mind than on the body,
and which only required physical work in order to clear a path to reach men’s
hearts,


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it would doubtless deserve, due to this double utility, more protection and
encouragement: and this is the case of the book trade.

      Booksellers are merchants who, instead of putting their money in the bank, or
speculating in physical needs, undertake to supply the needs of the mind.
Honoured with the trust of a man of letters, or acting as substitutes for his
rights, they circulate his works, in accordance with an agreement which
makes them depositories or proprietors of them. They take upon themselves
the burden of sales, and bring to the task not only their hard work, but also
their capital and their intelligence; two items without which bookselling would
have no greater success than any other trade.

      So then, I ask what is scandalous or criminal about these dealings? I ask why
an agreement of this kind is annulled, by "the simple act of cession"? Why, of
all men who live subject to laws, are men of letters the only ones reduced to
such grievous powerlessness? Why there is no middle course for them
between the convulsive existence of a retail merchant, and oblivion? Why, in
short, they are condemned to a kind of bankruptcy, upon death, and to see
buried alongside themselves the commitments they undertook in public faith?

      Let us be aware: it was booksellers to whom we thought we owed no
consideration, but it is actually men of letters whom we neglect to consider.
We only wanted a stake in their property,


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once it passed out of their hands; but even when they still have it, we destroy
it.

      Without a doubt, it is good, wise and useful that they should have the right to
distribute their works from their own homes; this is a safeguard against the
rapaciousness with which the law would treat them. There is no writer who
cannot say to an excessively mean bookseller, "I can receive directly from the
public the price which you are not willing to put on my work". But at the same
time as this liberty is necessary to them, to protect them from being cheated, it
is necessary that they be able not to use it, in order to enjoy the leisure which
is taken away from them by the consuming activity of selling their books. It is
vital that when they find an honest and reasonable confidant, nothing should
prevent the latter from giving writers a true value of the object on which they
base their fortune, either by a temporary agreement, or by a perpetual transfer
of rights.

      But according to Article V, this can never happen. By forcing a writer to break
his word after his death, it removes all credit from his word during his lifetime.
It is not his concessionaire who is deprived, for the writer will not be able to
find one; it is he himself who suffers.

      After all, who would want to have dealings with a man whose promises are
known to hold only for as long as he lives, and whose agreements could be
rescinded by a fever? Who would dare to give a work a price in proportion to
its value, invest in publishing it, and risk his fortune on a venture which could
become,


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at any moment, in the eyes of the government, an encroachment?

      I say 'encroachment' because on the one hand, Article II "forbids booksellers,
after the expiration of the original privilege, to seek to obtain a new one",
whilst on the other hand, Article V restricts to the author’s lifetime the duration
of the first concession. So, in the case of the expiry of this original concession,
according to Article II, it would be disobedient and a crime for the bookseller
to seek to obtain an extension of his rights; and if this occurs the day after he
has begun the sale of his edition, he will be left burdened by it, without even
being allowed to seek the compassion of the government and obtain the right
to get rid of it. The remaining copies will rot in his shop, while he will see rival
editions prosper all around him, later than his own, and whose only merit will
be to have brought no profit whatsoever to the author.

      There will never be a bookseller imprudent enough to risk such a danger.

      Literary property therefore becomes, by its very nature, according to the
ruling, a non-transferable entity; and a property which cannot be got rid of is
nothing but a burden. This article, whilst appearing to respect the property
rights of men of letters, in fact does them irreparable damage. It is precisely in
concentrating these rights in their persons that it destroys them.


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§ 4.


On the rights of booksellers to the privileges they acquire.


      Literary privileges are by nature irrevocable, for as long as the works to which
they apply are not prohibited. They must be maintained, without exception,
with respect to their duration and value. They must always be given active
authority, and never curtailed, because they are the guarantee of a property
which must never expire or be transferred, without the owner’s consent.

      This axiom is enshrined in the new law: from now on, reason and
jurisprudence will unite to reinforce this; but it is more difficult, it seems, to
apply it to the kind of possession which has become the property of a family
other than that of the author.

      What? you cry out ! Shall we sacrifice the fruits of creativity to limitless
slavery? Shall we perpetually subjugate all that emanates from a great man’s
mind to the caprice of a single hand, who will have the exclusive right to
distribute it among the public? The power of Bourdaloue, the anointed
authority of Massillon, the energy of Bossuet, shall they be imprisoned, for all
time, under the lock and key of a single shop, whose keeper, even after
benefiting from them for a hundred years, shall still exercise the same
despotism? Should not this honourable prerogative,


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this attractive benefice, circulate among different families, and bring profit to
several houses? Is it not a kind of conspiracy against the human race, to want
to award oneself exclusive rights to supply it with such luminary writers, and
the profit that accompanies such distribution?

      The preamble to the Council’s ruling also bears the stamp of this prejudice,
which has been substantiated, like the previous one, by the ill-considered
declamations of men of letters: "to grant perpetual privileges to booksellers
would be to sanction monopolies, by permanently surrendering the only
arbiter of a book’s price".

      By what inconceivable fate has it come about that the book trade is only
likened to other trades in matters where this confusion does it damage, and
that distinctions are made at the point at which the book trade could benefit
from such comparisons?

      In general, exclusive privileges are highly undesirable; thus it is concluded
that they should not be tolerated in the book trade; but it is also generally the
case that the main aim of laws must be the protection of property. The former
should aim uniquely to protect the latter: it must therefore be concluded that in
the book trade, the latter must be treated with the same scruple. Not at all! At
the very point at which, in the name of common right, we dispute booksellers’
rights to have privileges, we contest their right to invoke the very same
common right in defence of their property.



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Has there ever been such an abhorrent inconsistency?

      It becomes all the more abhorrent when we consider it in detail. You think it
wrong that a single bookseller should have perpetual exclusive rights to
publish and sell Hamilton’s entertaining tales, or Corneille’s sublime plays;
after fifty or a hundred years, you want others to be invited to join this lucrative
activity; you believe that the man who has enjoyed this right so far has
profited enough from it, and that everybody should be allowed to share in its
benefits.

      But if, fifty years ago, you or your father had bought a house for 20,000 livres,
and had let it out during all that time for 100 pistols a year, you would surely
have recovered double your capital outlay and more; what would you say to a
man who, having no house, and not wishing to buy one, said to you: "you
have enjoyed yours for long enough; I am going to ask the government for
patents to obtain the rights to it; it is time that I too enjoyed the pleasures of
ownership"? You would be extremely angry; you would cry out against such
injustice; you would say, "once you have acquired it, you will have bought
every last inch of it for yourself, your posterity and your beneficiaries".
However, why do you criticise a bookseller, who has in good faith acquired a
manuscript? If he has not bought it, doubtless he has



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no rights over it; but if he has bought it, he must be allowed to enjoy that for
which he has paid.

      In all this, it is not the merchant who I am examining, nor must he be
examined; it is he from whom he derives his rights. Once again, all the
injustices which are done to booksellers, all the harassment which is heaped
upon them, all the extortions by which their profession is rendered suspect,
and their trade thankless, will impact upon men of letters, just as all the
subtleties with which the versatile financial art divides and subdivides taxes do
not prevent the entire burden from falling on the owners of an estate. With all
their finesse, tax-collectors succeed in making tenant farmers very miserable:
but it is still the case that what is taken from them, down to the very last
penny, is ultimately paid by their masters.

      Although in all respects there are no two things which resemble one another
less than literature and tax collection, the same processes have the same
effects in both domains. Until now, men of letters sometimes had cause to
complain about those who act in their place; but, as I have already said, this
can be attributed to faults in the old legislation; and yet the new law is even
more prejudicial to them.

      The old law only allowed them to make costly agreements; the new one
reduces them to the powerlessness of making none at all. For if, as I have
said, to protect themselves from being tyrannized, they must



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be allowed to exercise their own property rights themselves, and respond
directly to public demand without using a mediator, they must also, for their
own peace, and so as not to be distracted from the use of their talents, be
allowed to call upon such a mediator, when they judge it appropriate and
when they find one of quality; which will only happen when the bookseller
sees an advantage, and a substantial one at that, in dealing with them.

      If, in reducing them to mere usufructuaries of their works, this substitution had
been created in favour of their posterity; if the restriction of their civil powers to
their own lifetime was in order to guarantee their family’s future, then they
would perhaps have less to complain about.

      In truth, this compassion for the future generation would always be unjust and
ruinous; it would always exceed the limits of public authority, which is only
instituted to conserve and defend property. Men of letters would equally be
justified in protesting against a wardship which subjected them to a perpetual
minority. They could claim that the capital produced by the complete and
immediate sale of a manuscript would do more good to their household than a
long and incomplete sale of the work over several years.

      But even so, their works would not be subject to arbitrary confiscation: the
law, by depriving them of the common right of citizens



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to enjoy the property of the fruits of their work and industry, would at least
leave them the consolations of nature; they might at least be able to tell
themselves that it was not for strangers that their prerogatives were restricted,
and that the bonds in which they were imprisoned would ultimately be of
benefit to their loved ones; but as it is, they do not even enjoy this illusion.

      To whom are these writers sacrificed? To their readers, and to the workers
who would not exist without them.

      Fears of books being too expensive and of provincial presses being lazy are
cited in the preamble to the Council’s ruling, as reasons for the new law.
These two considerations merit further investigation.

§ 5.

On monopolies in the book trade. That there can be none.

      Monopoly, according to its etymology, means to be a sole seller, and in this
sense, without a doubt, when literary property is respected, like all other kinds
of property, there will be monopolies; but there are also monopolies in the
vineyards of Hay, St. Emilion and Tokay. The owners of the hills where these
vines grow, to whom nature has given the exclusive privilege of the nectar
harvested there, are monopolists; and nobody takes it into their head to
authorize these people’s neighbours to pick their grapes, to make


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for wine of better value.

      They are the sole sellers, because they are the sole producers.

      This is exactly the case in literature, despite the differences between an
excellent bottle of wine and a good book, a comparison which does not
always favour the latter. The former monopoly is proper to nature itself, and
certainly there is nothing to be despised in it.

      But today, we understand something completely different by this word than
what it meant to the Greeks. We use it to designate the fraudulent stockpiling,
without any legal permission, of every, or almost every, existing unit of a given
commodity, with a view to selling them on at an arbitrary price, since
necessity will oblige all consumers to obtain them from this one source. Can
this sort of monopoly take place in the book trade?

      A foreigner will never seek to obtain an entire edition of a work; or if he does
so, he will find himself in the situation I have just described: he will have
obtained all the rights of the true and unique owner; he will be no more
reprehensible than a merchant who purchases an entire crop of Romanet or
Clos Vougeau.

      But, one might say, "the certain knowledge of being the sole dispenser of this
precious commodity will make him greedy and despotic: he will hold to
ransom the public who are reduced to receiving only from his hand; a good
book



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belongs to the nation; it must be procured from him at the best possible price;"
etc.

      I always marvel at how easily the book trade’s apparently spiritual nature
makes people forget its material aspect. Since it caters for the needs of the
mind, it seems that we must create specific principles for the book trade,
different from those which apply in other trades, and without which there can
be no trade. This oversight is even stranger in that it takes place doubly; but,
as I have already observed, always in an inverted sense. We see the book
trade alternately as a vulgar profession and as the distributor of the fruits of
genius; but we only recall the nobility of the second of these functions when
we are trying to evade the recompense appropriate to the first. Pity the
centaur who is not allowed to eat bread, because it is not proper food for
horses, nor oats, because they are not what men eat. What cruelty!

      No doubt it is right that prices should not be excessive. Whether books are
regarded as luxury goods or useful items, there must be proportion between
their real value and their material value. But should the latter be so weakened
that it is reduced to nothing?

      Independently of the cost of employing a workforce, whose price must be
limited, there is,


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as I have said, the author’s intellectual investment; we should not be so
concerned to dissolve the link between this investment and the financial
returns the work attracts. If the author had taken his talents to the bar, to
medicine, or even to the Church, would he not have been rewarded by
remuneration in proportion to his success and his merit?

      A well-conducted defence, a remedy which restores health or at least hope, a
sermon which awakens in the depths of hearts a languishing conscience and
reminds listeners of forgotten duties, are all, no doubt, useful things: however,
does legislation concern itself with reducing the fees which recognition
attaches to them? By what misfortune is literature the only career in which we
are so keen to make savings?

      Nobody is forced to buy a book; why envy a man of letters this tribute, of such
inconsequential value, which each person who derives useful ideas or
pleasant moments from reading would willingly pay him? We want the public
to enjoy good value; but, to enlighten the public, must we ruin its teachers? To
be generous towards readers, must we be unjust towards the geniuses who
devote themselves to educating them?

      It would be all the more natural to allow total freedom in this respect, given
that there need be no fear that they will abuse it: the very nature of things has
imposed limits which greed could not overstep with impunity. This type of
monopoly might be fearsome and profitable when



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applied to the subsistence of a population, but not when it applies to the
needs of the mind and the delights of the soul.

      We each need our daily bread. Last night’s dinner does not absolve us of the
need to eat today. Tomorrow’s appetite will not be satisfied by eating to our fill
today, and the food which satisfies it cannot circulate from one house to the
next, driving out hunger without losing any of its substance. The
concessionaire who has become the sole producer of grain in his country can
therefore be sure that, however high he raises his prices, sheer necessity will
force people to pay the amount he charges.

      Is the same true of literature? Is the desire to have a book always so strong
that its price poses no obstacle? There are some wealthy people of leisure, all
of whose desires are passions, and who lavish money in every direction to
spare themselves having to wait for the pleasures they seek; but such
transports are becoming ever rarer, particularly in the sphere of intellectual
matters. The vast majority of readers assess the volume’s merits with their
faculties, and if its merits are disproportionate to its cost, this puts them off.

      Moreover, if the book is too expensive, there is the possibility of borrowing it
from someone else. This free circulation of books damages sales by snuffing
out curiosity.

      There is no need, therefore, to fear that a bookseller who produces a
substantial edition might risk stopping sales, by placing the work out of reach
of normal buyers. He can only raise the price quickly if the book is well-known,
and it cannot become well-known if it remains at an excessive price.



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      I would go even further: far from a perpetual exclusive privilege producing the
temptation to monopolise, I would venture to think that it would invite the
bookseller toward moderation, because from the profits of several successive
editions, he could count on recovering the minimum amount he needed in
order not to ruin himself.

      Experience confirms reason on this matter, which will reassure the authorities.
In England, in Holland and in Switzerland, the sale of books, like their
production, is left up to the arbitrary speculation of individuals. Each seller can
attach the price he chooses to the books he publishes, and this practice has
no disadvantages. If they are more expensive than in France, this is caused
by a factor common to all industry; that is, the higher cost of all the materials
involved. Without this consideration, they would sink to almost the same level
as our own, and would manage to survive; however, as I have remarked, in
these countries the property rights of men of letters, or of their
concessionaries, are sacrosanct. Is it only in France that they are condemned
to work without profit, so that we might be allowed to enjoy their works at a
good price?

      My reflections on men of letters can equally be applied to booksellers: it
seems that we always fear to see both men of letters and booksellers
becoming too wealthy. They are the only two classes of society whose rights
we unscrupulously question: rights to those benefits which,


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in any honest profession, must reward hard work and intelligence.

      I must repeat, this prejudice to which men of letters fall victim is due to the
indiscretion of these very men themselves, and is only worsened by the
occasional misfortune from time to time.

      We are struck by the prodigious fortune which certain works produce; we
compare the promptness and apparent vastness of the income they generate
with the initial outlay, and immediately we put the whole book trade on trial:
appearing tainted, it is declared guilty of amassing too much money. We do
not want to acknowledge that these quick successes are very unusual and do
not last for long. We forget that alongside the crib, where one of these
fortunate works was born into such a profitable existence, may be found
twenty sepulchres, where less well-favoured works are buried, along with the
resources of the families which ruined themselves in vain in order to give
them life.

      To see the effort we devote to militating against the booksellers’ successes,
one would think that their property was a kind of gold mine, where the gold
costs only the trouble of unearthing it.
However, there is no other trade which involves more considerable advance
investments, and in which returns come so slowly; there is not even any other
trade where returns are more uncertain, or ventures more risky.

      The manufacturer who risks his livelihood on a new design




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initially only makes a very small number of units. He consults the public’s
tastes, and those of his correspondents. Informed by their responses, he then
works without risk: he only increases production according to the orders he
receives, and the deliveries he makes; he no longer runs the risk of
insolvency with his debtors; but he need not fear to see his wares accumulate
in his workshop, forming a static mass beneath which he is crushed.

      The bookseller, however, always lives in fear of these two dangers. He is
even more exposed to ruin by sales drying up than by the inevitable losses
incurred by a quick run of sales. He cannot consult the public; he does not
have the power to foresee how much he will sell and make advance
investments in proportion to this; he must either undertake nothing or
undertake an entire edition. However reliable the advice he consults to
ascertain the quality of manuscripts submitted to him, everyday experience
teaches that there can be terrible misjudgments in this process. Books, like all
other things, are subject to capricious fate, which does not always accord
success to true merit.

                        "Et habent sua fata libelli"*

      Is this trade subject to so many risks that it is necessary to seek to decrease
its profits, and to multiply the reasons one might have to dislike it?

______________________________________

* Lat. "Every book has its fate" - a phrase from "De litteris, de syllabis,
de metris", by Terentianus Maurus, a Latin grammarian and writer on prosody,
2nd century CE.






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§ 6.

That the interests of provincial publishers do not constitute a sufficient reason
to destroy, in their favour, the property rights of men of letters

      What, then, is the fate of that part of the nation which devotes itself to
enlightening the other, by means of printing? That which could most
contribute to making it useful is perhaps precisely that which delivers it over
with such ease to all types of oppression: it is that they form no body. All
these individuals, isolated in the silence of the study, are an easy target for
whoever might seize upon them with the supreme force and authority
conferred by a few words of legislation. There is no flock of vultures which
does not get away with playing with their prey in this way.

      The independence and even, if you like, the anarchy of the republic of letters
is, without a doubt, an advantage. Whenever men of letters form civil
associations, it results, as we see today, in the despotism of its laurelled
members, the decline of taste and the debasement of literature.

      It is the same process which makes theologians so unruly, and lawyers so
imperious: in this respect, it hardly matters what uniform they wear; it matters
little whether tyrants are dressed in a cassock, a simarre or a habit court; what
is unfortunate and inevitable is that, as soon as several men



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destined to cultivate their mind have the right to form these approved leagues,
which are called ‘guilds’, they become bizarre, merciless, ambitious,
immodest, even unscrupulous, and, strangest of all, irrational. Even if most of
the individuals were paragons of wisdom and decency, the body would be no
less troublesome nor less absurd: this is one of the most astonishing truths,
and at the same time one of the easiest to explain among those with which
the spectacle of society daily furnishes us.

      But although these false individuals seem fearsome to their neighbours, they
are praiseworthy in their own eyes. Admirably armed to do ill, they enjoy the
respect and attention which terror always affords to whoever inspires it, and
even those who do not have enough power to do damage, still obtain some
sort of consideration, at least on the grounds of strength in numbers.

      The useful and truly respectable members of the literary world do not have
this resource: this is why it is so easy to crush them in every way: but should
not governments look out for them, and protect them from the blows against
which their political weakness prevents them from defending themselves?

      Actors form a guild: dramatic authors have been sacrificed to them.
Booksellers form guilds: the old legislation


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had subordinated men of letters to them with as much indecency as injustice.
The new law has freed these men of letters from this opprobrium, but only
then to wrong them even more greatly, as a result of the triumphant impulse
common to all groups and associations.

      Printers form a guild: their interests have carried great weight in the many
demands they have made in their attempts to influence the legislator, and to
make him lose sight of men of letters, on whose behalf nobody speaks up. To
recognise their property rights indefinitely, says the preamble, would be "to
allow sources of abuses and counterfeiting to survive, by refusing provincial
printers a legitimate means of using their presses".

      Surely, upon reflection, you will realise how soul-destroying this reasoning is.
If, as I believe I have proved, the property rights of men of letters are not a
mere chimera, it would be cruel if the government believed itself obliged to
sacrifice them to workmen who, particularly over the last thirty years, have
infringed them with odious impudence.

      This means of employing them might well be made legal, but certainly it will
never be legitimate.

      Why must it be at the expense of men of letters that the authorities procure
employment for men who render no service to these men? Are their presses
so precious to the state that, in order,



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to support them, they must be authorized to devour the whole of literature,
and the substance of the talented men who cultivate it?

      We fear that they might be lazy, or that they might turn to counterfeiting! But is
there no middle way for them between theft and laziness? Must they be
suspected of having no occupation other than robbery?

      Without a doubt, guarding the security of the highways denies a source of
income to the hordes of villains who infest them; but do we take it into our
heads, out of pity, and out of fear lest they should die of hunger, but also out
of concern that they should not ruin the whole day with their villainous
activities, to permit them to carry on despoiling those passers-by who fall into
their hands after a certain hour?

      The government only owes its protection to honest and useful trades; and
even in these, if the workforce grows beyond the level which the industry can
naturally employ, instead of fixing them at that level with abusive indulgence,
they should be redirected towards other activities, where their industry will find
vacancies and the guarantee of a salary.

      This pretext, by which we have here alluded to the legislator, is all the less
well-founded given that in the current state of affairs there are plenty of
employment opportunities for all those who work in the printing industry,
without compromising the property rights of men of letters, and without turning
the current climate of regeneration into an era of proscription more terrible
than the servitude of the past.


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      Firstly, there are plenty of literary works that were written before the invention
of the printing press, or even after its invention, but whose authors
bequeathed them to posterity, without reservation. These, without question,
belong to the public, by the same principle which makes the suzerain owner of
abandoned property left on his lands; every individual is allowed to consider
himself an heir of Virgil, Ovid and Cicero; whoever publishes new editions of
these works - arousing the envy of the publishers of previous editions, since
the new ones are more carefully compiled and revised, and more modestly
priced - share with these great men the title of benefactors of the human race.

      Here is an inexhaustible source to be mined by printers who wish to publish
those literary works which are part of the universal heritage of all active and
industrious men: these productions, having stood the test of time, are subject
neither to the caprices of fashion, nor to revolutions in taste. There is daily
demand for such works, which will never diminish: this area of trade exposes
one to greater competition, but it also guarantees a much larger turnover.

      Alternatively, if they want to risk the successes and dangers of modern
literature, who can prevent them from pursuing this interest according to the
paths which probity prescribes, and which are protected by law? Let them
seek out the acquaintance of a man of letters; let them assume his rights; let
them become owners of them, and let them cultivate this soil which is ripe for
yielding a crop, instead of desolating it by theft.



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      Whoever has ambition and courage will be able to undertake profitable
ventures at the foot of the Pyrenees, just as on the banks of the Seine. No
longer will it only be the booksellers of the capital who reap such a harvest.

      There was a time when the provinces challenged this advantage. Lyon,
Toulouse, Bordeaux, Reims, Rouen, had lively and productive presses which
constantly supplied the country’s shops. The damaging prosperity of
counterfeiters killed off or corrupted almost all of them. Who could prevent the
welcome return of this rivalry if the law were rigorously to watch over the
property of the bookseller in Tarbes, in the same way as over the Parisian
one? What publisher could complain of his inactivity, or give in to the
temptation of robbery, if his trade opened up to him a sure and easy career; if
laws were enforced, not to degrade literature, nor to nullify the property rights
associated with it, but to protect them?

      If this happened, manuscripts would be more precious, more sought after, and
consequently bought at a higher price. By restoring confidence, a guaranteed
resource would be opened up to men of letters, and, what ought to be more
precious to those among them who are truly scrupulous, a resource which
would be worthy of honour, and solely on account of their own hard work; one
which would not be tarnished by shameful entreaties, or by derogatory
indulgences. Then, the glory which today shines for them unfruitfully at the
summit of Parnassus



Chapter 1 Page 49


57

would richly warm its foothills. Beneath the warmth of its rays, artistic
inspiration would flourish, of which they would be masters, able to gather its
fruits for themselves in an instant, by transferring their rights absolutely, if they
did not prefer to retain them in order to share them with their posterity.

_______________________________

[...]



Translation by: Lydia Mulholland (pp.4-49)

    

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