Transcript The Cumulative and Collaborative Nature of Creativity form

Part III
Individualism, the
Original Genius and the
Pragmatic Distributor
Kyrnos, by me as I practice my art let a seal be
set on these words, and never will they be
stolen unobserved. Nor will anyone substitute
something worse for the good that is present,
and everyone will say, “The words are Theognis
of Megara's. Among all mankind he is named.”
Theognis, IEG 19-26, as cited in Louise Pratt, The Seal of
Theognis, Writing and Oral Poetry, 116 THE AMERICAN J.
PHIL. 171, 171 (1995) .
Aristonothos krater, 7th century BC
[t]he Gilgamesh epic was a great literary success for hundreds of
years. It was copied and translated again and again – perhaps it
even influenced the Homeric epics. Yet during all that time and
among all those people, nobody seems to have asked who the
author of this work was, although it was carefully crafted and, in
its own way, a great literary achievement. Likewise, there are no
individual authors of Hittite and Ugaritic epics, or in the Old
Testament.
Walter Burkert, Die Leistung eines Kreophylos: Kreophyleer, Homeriden und die
archaische Heraklesepik, 29 MH 74, 75 (1972)
[The construction of Homer feed] our desire for a
transcendent originary unity.”
BENNETT, THE AUTHOR 35
PRINTING PRIVILEGES, TRADE AND CENSORSHIP
Mainz, Germany, 1439
Whereas such an innovation, unique and particular to our age and
entirely unknown to those ancients, must be supported and
nourished with all our goodwill and resources and [whereas] the
same Master Johannes, who suffers under the great expense of
his household and the wages of his craftsmen, must be provided
with the means so that he may continue in better spirits and
consider his art of printing something to be expanded rather than
something to be abandoned, in the same manner as usual in other
arts, even much smaller ones, the undersigned lords of the
present Council, in response to the humble and reverent entreaty
of the said Master Johannes, have determined and by determining
decreed that over the next five years no one at all should have the
desire, possibility, strength or daring to practice the said art of
printing books in this the renowned state of Venice and its
dominion, apart from Master Johannes himself.
Johannes of Speyer’s Printing Monopoly, Venice (1469), at 1, in PRIMARY SOURCES
ON COPYRIGHT (1450-1900) (emphasis added)
privilege – a lex made for a privus
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Typography had made the written word into a commodity.
The old communal oral world had split up into privately
claimed freeholdings. The drift in human consciousness
toward greater individualism had been served well by print.
WALTER J. ONG, ORALITY AND LITERACY: THE TECHNOLOGIZING OF THE WORD 131
(Methuen 1982)
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To booksellers: it is not without great cost that these Missals
have issued from our press into the light of day. Therefore, if
any man induced by greed or avarice, or motivated by the
frenzy of envy, presume to print them or put on sale copies
printed elsewhere, let him be warned, lest he incur the
penalties of the privilege granted to us by the King’s
Majesty.
See Th. Wierzbowski, Polonica xv ac xvi seculorum (Warsaw 1889), no. 2076
(Printing Privilege from the King of Poland to Johann Haller, 1516)
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certain seditious and heretical books rhymes and treaties are
daily published and printed by divers scandalous malicious
schismatical and heretical persons, not only moving our subjects
and lieges to sedition and disobedience against us, our crown
and dignity, but also to renew and move very great and
detestable heresies against the faith and sound catholic doctrine
of Holy Mother Church . . . .
Stationers’ Charter (1557), in I A TRANSCRIPT OF THE REGISTERS OF
COMPANY OF STATIONERS OF LONDON, 1557-1640 xxviii (E. Arber, 1875-94)
THE
Decree Establishing the Venetian Guild of Printers and
Booksellers (1549)
Edict of Moulins by Charles IX (1566)
Book Trade Regulations and Incorporation of the Parisian Book
Trade (1618)
The privilege system “was never established with the principal
aim of protecting and securing the interest of the author.”
Laurent Pfister, Author and Work in the French Print Privileges System: Some
Milestones, in PRIVILEGE AND PROPERTY. ESSAYS ON THE HISTORY OF COPYRIGHT 123 (Ronan
Deazley, Martin Kretschmer and Lionel Bently eds., Open Book Publishers 2010)
ALBRECHT DÜRER, INGENII, AND THE “SUPER-ARTIST”
. . . in a famous encounter with Guido Reni, Michelangelo Merisi
da Caravaggio threatened to split his rival skull if he did keep
stealing his maniera – manner or style . . .
[ . . . ] beware, you envious thieves
of the work and inventions of
others, keep your rash hands from
the works of ours [ . . . ]
Albrecht Dürer (in a Latin colophon printed
on the final leaf of the 1511 complete edition
of his Life of the Virgin, Large Passion, and
Small Passion) as cited in KOERNER, THE
MOMENT OF SELF-PORTRAITURE 213
The foreigner, who sold prints before the town hall, some with
Albrecht Dürer’s monogram that were fraudulently copied from
him, shall be bound by oath to remove all the said monograms
and sell none of them here; and if he refuses, all his said prints
shall be confiscated as counterfeit [ain falsch] and taken into the
hands of the council.
Nuremburg City Council’s Ratsprotokoll of January 2, 1512, as cited in KOERNER, THE
MOMENT OF SELF-PORTRAITURE 209.
And so Philip once said to his son, who, as the wine went round, plucked the
strings charmingly and skilfully, ‘Art not ashamed to pluck the strings so well?’
It is enough, surely, if a king have leisure to hear others pluck the strings, and
he pays great deference to the Muses if he be but a spectator of such contests.
PLUTARCH, LIFE OF PERICLES II.1.5, in PLUTARCH’S LIVES (Bernadotte Perrin trans., Harv. U. Press 1916)
[y]ou may turn out a Phidias or a Polyclitus, to be sure, and create a number of
wonderful works; but even so, though your art will be generally commended,
no sensible observer will be found to wish himself like you; whatever your real
qualities, you will always rank as a common craftsman [banausos] who makes
his living with his hands.
LUCIAN OF SAMOSATA, THE DREAM (160-164 A.D. circa), in THE WORKS OF LUCIAN OF SAMOSATA 7 (Henry W. Fowler
and Francis G. Fowler trans., Forgotten Books 2007) (1905)
No generous youth, from seeing the Zeus at Pisa or the Hera at Argos, longs to
be Phidias or Polycleitus; nor to be Anacreon or Philetas or Archilochus out of
pleasure in their poems.
PLUTARCH, LIFE OF PERICLES, at II.1.6
Works of art are not to be judged by the amount of useless
labour spent on them but by the worth of the knowledge and
skill which went into them.
FRANCISCO DEL HOLLANDA, DA PINTURA ANTIGUA 59 (Edição de "Renascença
Portuguesa" 1918)
the super-artist
[Michelangelo is] the first example of the modern, lonely,
demonically impelled artist – the first to be completely
possessed by his idea and for whom nothing exists but his
idea – who feels a deep sense of responsibility towards his
gifts and sees a higher and superhuman power in his own
artistic genius.”
HAUSER, II THE SOCIAL HISTORY OF ART 60.
It is to be noted, however, that an understanding and practiced artist
can display more of his great power and art [gwalt vnd kunst] in little
things of rough and rustic form that many other can in their large
works. Only powerful artist will understand that I speak truth in this
strange saying. For this reason, something one man sketches in a day,
with a pen on a half-sheet of paper, or engraves with his graver in a
little block of wood, will be more artful and excellent than other man
large work, which he makes with great diligence in a whole year. And
this gift is wonderful. For God often allows one man to learn and
understand how to do something well, for which no equal can be
found in his time, and perhaps no one will come before him and after
him none shall soon come.
ALBRECHT DÜRER, AESTHETIC EXCURSUS, as cited in KOERNER, THE MOMENT OF SELF-PORTRAITURE
213
It is to be noted, however, that an understanding and practiced artist
can display more of his great power and art [gwalt vnd kunst] in little
things of rough and rustic form that many other can in their large
works. Only powerful artist will understand that I speak truth in this
strange saying. For this reason, something one man sketches in a day,
with a pen on a half-sheet of paper, or engraves with his graver in a
little block of wood, will be more artful and excellent than other man
large work, which he makes with great diligence in a whole year. And
this gift is wonderful. For God often allows one man to learn and
understand how to do something well, for which no equal can be
found in his time, and perhaps no one will come before him and after
him none shall soon come.
ALBRECHT DÜRER, AESTHETIC EXCURSUS, as cited in KOERNER, THE MOMENT OF SELF-PORTRAITURE
213
Man was conscious of himself only as a member of a race,
people, party, family, or corporation – only through some
general category . . . [i]n Italy this veil first melted into air . . .
man became a spiritual individual and recognized himself as
such . . . .
JACOB BURCKHARDT, I THE CIVILIZATION OF THE RENAISSANCE IN ITALY 143 (S. G. C.
Middlemore tr., B. Nelson and C. Trinkaus eds., Harper and Row 1958)
BEN JONSON, INDIVIDUALISM, PLAGIARISM, AND
AMBIGUITIES
“To Prowle, the Plagiary”
BENJAMIN JONSON, EPIGRAMS LXXXI, in JONSON, THE WORKS 220
[ . . . ] during his lifetime [Jonson] contended vigorously
against various forms of literary theft, introducing to the
language a number of words, still in common currency, to
describe the practice. After his death he was ironically
regarded in many quarters as something of a thief himself.
Donaldson, ‘The Fripperie of Wit’, at 123.
François de Lauze, Apologie de la danse
v.
Berthélemy de Montagut, Louange de la danse
Having read most of our English Plays, as well ancient as those of
latter date, I found that our modern Writers had made Incursions
into the deceas’d Authors Labours, and robb’d them of their Fame. [
. . . ] I know that I cannot do a better service to their memory, than
by taking notice of the Plagiaries, who have been so free to borrow,
and to endeavour to vindicate the Fame of these ancient Authors
from whom they took their Spoiles.
GERARD LANGBAINE, MOMUS TRIUMPHANS: OR, THE PLAGIARIES OF THE ENGLISH STAGE; EXPOS’D
IN A CATALOGUE A4 (1688)
“The Domenichino Affair”
ELIZABETH CROPPER, THE DOMENICHINO AFFAIR: NOVELTY, IMITATION, AND THEFT IN
SEVENTEENTH-CENTURY ROME 118-120 (Yale U. Press 2005)
Torquato Tasso 1544-1595
[ . . . ] and new will be the poem
when the weaving of the plots is
new, new the solutions, new the
episodes in between, no matter how
well known is the material and how
much it has been treated by others.
For the novelty of the poem lies in
the form rather than the material.
On the other hand, a poem cannot
be called new in which the names
and the people are fictional, but the
plot and its working are taken from
others.
TORQUATO TASSO, I SCRITTI SULL’ARTE POETICA
186 (E. Mazzali 1977) (1587)
[t]he new perception of the literary text that emerged at the end
of the Renaissance both shared in and, more important, helped to
shape a new mentality. Seeking authorizing origins in the past,
Renaissance culture encountered his own human historicity. The
consequences of this discovery were felt with a special force in its
literature, for it was in literature that the contest between
individual innovation and the authority of tradition was recast as a
struggle for independence from sacred authority, and it was in
literature that Renaissance thought first achieved an autonomous,
secular identity. But the very nature of this achievement may have
obscured the extent to which it is contributed to an intellectual
revolution. By obtaining a cultural autonomy from systems of
authorized truth, literature gave up its right to be authoritative.
DAVID QUINT, ORIGIN AND ORIGINALITY IN RENAISSANCE LITERATURE: VERSIONS OF THE SOURCE
219 (Yale U. Press 983)
KANT, ORIGINALITY AND MISPERCEPTIONS
The mind of a man of Genius is fertile
and pleasant field, pleasant as
Elysium, and fertile as Tempe; it
enjoys a perpetual Spring. Of that
Spring, Originals are the fairest
flowers: Imitations are of quicker
growth, but fainter bloom. [ . . . ]
hope we, from Plagiarism, any
Dominion in Literature; as that of
Rome arose from a nest of Thieves?
EDWARD YOUNG, CONJECTURES ON ORIGINAL
COMPOSITION. IN A LETTER TO THE AUTHOR OF SIR
CHARLES GRANDISON 7 (A. Millar. and J.
Dodsley 1759)
A Genius differs from a good Understanding, as a Magician
from a good Architect; That raises his structure by means
invisible; This by the skilful use of common tools. Hence
Genius has ever been supposed to partake of something
Divine. Nemo unquam vir magnus fuit, sine aliquo afflatu
Divino.
YOUNG, CONJECTURES ON ORIGINAL COMPOSITION, supra note 640, at 7.
genius is properly the faculty of invention [ . . . ] by which a man
is qualified [ . . . ] for producing original works of art and which
is given by the mental power of imagination.
ALEXANDER GERARD, AN ESSAY ON GENIUS 8 (W. Strahan 1774)
Genius is the talent (or natural gift) which
gives the rule to Art. Since talent, as the
innate productive faculty of the artist, belong
itself to Nature, we may express the matter
thus: Genius is the innate mental disposition
(ingenium), through which nature gives the
rule to Art.
[ . . . ] [Genius] is not a mere aptitude for what can be learned
by a rule [but] a talent for producing that for which no definite
rule can be given [ . . . ] hence originality must be its first
property.”
IMMANUEL KANT, KRITIK DER URTEILSKRAFT § 46, in KANT’S KRITIK OF JUDGMENT 188(J. H.
Bernard trans., Macmillan and Co. 1892) (1790).
the severity of the accusation indicates an anxiety of originality
becoming an obsession, with the concomitant fears that the
sacred well of individual genius can be poisoned or simply
drawn dry by intruders.
Nick Groom, Forgery, Plagiarism, Imitation, Pegleggery, in PLAGIARISM IN EARLY
MODERN ENGLAND 77 (Paulina Kewes ed., Palgrave 2003)
William Lauder, An Essay on Milton Use and Imitation of the
Moderns, in his Paradise Lost (1750)
Coleridge: The Damaged Archangel
[Coleridge’s] borrowings contradict the logic of
Romanticism: he is the brilliant and innovative poet
who claimed imaginative origins for his work but
who borrowed covertly from the texts of other
writers.
MAZZEO, PLAGIARISM IN THE ROMANTIC PERIOD 7-8.
After all, the Immortal Bard would never stoop to copy the
works of another. Once again, originality becomes the key.
JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE
INFORMATION SOCIETY 230 ft. 12 (Harvard University Press 1996)
[w]hatsoever then he [the man] removes out of the state that
Nature hath provided, and left it in, he hath mixed his Labour
with, and joined to it something that is his own, and thereby
makes it his Property.
JOHN LOCKE, TWO TREATISE OF GOVERNMENT § 27 (1690),
John Locke, 1632-1704
When a man by the exertion of his
rational powers has produced an
original work, he has clearly a right
to depose of that identical work as
he pleases, and any attempt to take
it from him, or vary the disruption
he has made of it, is an invasion of
his right of property.
WILLIAM BLACKSTONE, II COMMENTARIES ON THE
LAWS OF ENGLAND 405 (Clarendon Press 1766)
Willam Blackstone, 1723-1780
WIPO-Turin LL.M. Annual Conference,
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“public sphere” – social process giving birth to a new sense
of civil society as a collectivity distinct from the family or
the state.
JÜRGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE:
AN INQUIRY INTO A CATEGORY OF BOURGEOIS SOCIETY 57-67 (Thomas Burger
trans., MIT Press 1991)
the question of literary property . . .
[t]here seems [ . . . ] to be in authors a
stronger right of property than that
by occupancy; a metaphysical right, a
right as it were of creation, which
should from its nature be perpetual;
but the consent of nations is against
it, and indeed Reason and the
interests of learning are against it . . .
For the general good of the world, therefore, whatever
valuable work was once been created by an author, and
issued out by him, should be understood as no longer in
his power, but as belonging to the publick.
JAMES BOSWELL, II BOSWELL’S LIFE OF JOHNSON, TOGETHER WITH BOSWELL’S
JOURNAL OF A TOUR TO THE HEBRIDES (George B. Hill and Lawrence F.
Powell eds., Clarendon Press 1934) (1791)
William Murray, 1st Earl of Mansfield, 1705-1793
Millar v. Taylor, 4 Burr. 2303, 98 Eng. Rep. 201 (K.B. 1769)
Joseph Yates (1722-1770)
[ . . . ] from the moment of publication,
[literary works] are thrown into a state
of universal communion [ . . . ] like land
thrown into the highway, it is become a
gift to the public.
Tonson v Collins, 96-98 Eng. Rep. 169, 185, 1 Black
W. 321, 334 (K. B. 1762) (Justice Joseph Yates)
In a word, I have no difficulty to maintain that a perpetual
monopoly of books would prove more destructive to
learning, and even to authors, than a second irruption of
Goths and Vandals.
Hinton v Donaldson, Mor 8307 (1773) (Lord Kames)
Henry Home, Lord Kames, 1696-1782
Science and Learning are in their
Nature publici juris, and they ought
to be as free and general as Air or
Water.
Donaldson v. Becket (1774) Hansard, 1st
ser., 17 (1774): 999 (Lord Cadmen)
[a]ll the plaintiffs can claim is, the ideas
which the book communicate . . . [t]hese,
when published the world is as fully in
possession of as the author was before.
Tonson v. Collins, 96-98 Eng. Rep. 169, 185, 1 Black W. 321, 334 (K.B.
1762
The identity of a literary composition consisted in
the ideas or “sentiments” and the “style” or
“language,” so that “the same conceptions,
cloathed in the same words, must necessarily
be the same composition . . . .”
BLACKSTONE, II COMMENTARIES 406
FRANCIS HARGRAVE, ARGUMENT IN DEFENCE OF LITERARY PROPERTY (W.
Otridge 1774)
Francis Hargrave 1741–1821
Johann Albert Heinrich Reimarus, 1729-1814
[i]t is thus obvious, that according to
common judgment, the public regards and
must regard itself as being in joint
possession of a published work: and that
which has been published in print, can no
less than manuscripts in earlier times, be
considered publici iuris.
Johann Albert Heinrich Reimarus, Der Bücherverlag in Betrachtung der
Schriftsteller, der Buchhändler und des Publikums abermals erwogen,
DEUTSCHES MAGAZIN, 1.Bd., at 383-414 (1791).
Once expressed, it is impossible for [ideas] to remain the
author’s property . . . It is precisely for the purpose of using the
ideas that most people buy books [ . . . ] it is too obvious that the
concept of intellectual property is useless. My property must be
exclusively mine: I must be able to dispose of it and retrieve it
unconditionally. Let someone explain to me how that is possible
in the present case. Just let someone try tacking back the ideas
he has originated once they have been communicated so that
they are, as before, nowhere to be found.
Christian S. Krause, Uber den Büchernachdruck, 1 DEUTSCHES MUSEUM 415 (1783), as
cited in Woodmansee, The Genius and the Copyright, supra note 635, at 443-444.
The author and the owner of a copy can both say with equal right
of the copy: it is my book! - but in different senses. The former is
regarding the book as a written work or speech, whereas the
latter sees in it simply the mute instrument for the delivery of the
speech to him, or to the public – i.e. he regards it as a copy.
Immanuel Kant, Von der Unrechtmäßigkeit des Büchernachdrucks [On the Injustice of
Counterfeiting Books], in 5 BERLINISCHE MONATSSCHRIFT 403-417 (1785)
[w]hat is certainly offered for sale through the publication
of a book, then, is first of all the printed paper, to anyone,
that is, who has the money to buy it or a friend who will
lend it to him; and secondly, the content of the book,
namely to anyone who has enough brains and diligence to
appropriate it. As soon as the book is sold, the former
ceases to be the property of the author [ . . . ] and passes
exclusively to the buyer, since it cannot have more than
one lord and master. The latter, however, the book’s
content, which on account of its ideal nature can be
the common property of many, and in such a manner that each can possess it entirely,
clearly ceases upon publication of the book to be the exclusive property of its first
proprietor [ . . . ], but does continue to be his property in common with many others.
What, on the other hand, can absolutely never be appropriated by anyone else, because
this is physically impossible, is the form of the ideas, the combination in which, and the
signs through which they are presented. [ . . . ]. From this follow two rights of the author:
not only [ . . . ] the right to prevent anyone from disputing his ownership of this form
(the right to demand that everyone recognize him as the author of the book), but also the
right to prevent anyone from infringing upon his exclusive ownership of this form and
taking possession of it.
Johann Gottlieb Fichte, Proof of the Illegality of Reprinting: A Rationale and
a Parable, in BERLINISCHE MONATSSCHRIFT 443, 449-452447 (1793) (emphasis
added).
Georg Wilhelm Friedrich Hegel 1770-1831
to guarantee scientists and artist against
theft and enable them to benefit from the
protection of their property
GEORG FRIEDRICH WILHELM HEGEL, PHILOSOPHY OF RIGHTS § 69
(Thomas M. Knox trans., Clarendon Press 1967) (1821)
exception and limitation to copyright (“[t]hose engaged in the propagation of knowledge of all kinds, in particular those whose
appointed task is teaching, have as their specific function and duty [ . . . ] the repetition of well-established thoughts, taken up ab
extra and all of them given expression already . . . [t]he same is true of writings devised for teaching purposes and the spread and
propagation of the sciences”),
derivative works (“whereby in turn they make what they have learnt [ . . . ] into a 'thing' which they can alienate, very likely form of its
own in every case . . . [t]he result is that they can regard as their own property the capital asset accruing from their claim for
themselves of the right to reproduce their learning in books of their own”),
transformative uses (“[t]he ease with which we may deliberately change something in the form of what we are expounding or invent
a trifling modification in a large body of knowledge or a comprehensive theory which is another's work, and even the impossibility of
sticking to the author's words in expounding something we have learnt, all lead of themselves [ . . . ] to an endless multiplicity of
alterations which more or less superficially stamp someone else's property as our own”),
and plagiarism (“[t]o what extent is such repetition of another's material in one's book a plagiarism? . . . [t]here is no precise principle
of determination available to answer these questions, and therefore they cannot be finally settled either in principle or by positive
legislation . . . [h]ence plagiarism would have to be a matter of honour and be held in check by honour”).
Id., at § 69 (72-74).
There seems, however, to be an impression that
there is a sort of common right to print and publish
books; but the slightest reflection must convince any
one that this would be a great injustice.
The reason of it is found simply in the fact that a book, regarded
from one point of view, is an external product of mechanical art
(opus mechanicum), that can be imitated by any one who may be in
rightful possession of a copy; and it is therefore his by a real right.
But, from another point of view, a book is not merely an external
thing, but is a discourse of the publisher to the public, and he is only
entitled to do this publicly under the mandate of the author
(praestatio operae); and this constitutes a personal right.
IMMANUEL KANT, METAPHYSIK
Hastie trans.)
DER
SITTEN [METAPHYSICS
OF
MORALS] § 31 (1797) (William
This right of the author is, however, not a right
to the object, that is, to the copy (for its owner
is certainly entitled to, say, burn it in front of
the author); rather, it is an innate right, invested
in his own person, entitling him to prevent
anyone else from presenting him as speaking to
the public without his consent . . . .
Kant, On the Injustice of Counterfeiting Books 416.
if one modifies a book written by someone else (abridging it, or adding
to it, or reworking it) in such a way that it would actually be wrongful to
bring it out under the name of the author of the original, then such a
modification carried out in the publisher's own name does not
constitute reprinting and is therefore not forbidden.
Id., at 417.
Denis Diderot, Letter on the Book Trade. A
historical and political letter to a magistrate on
the book trade, its former and current state, its
regulations, privileges, tacit permissions,
censors, pedlars, the expansion of trade across
the river and other subjects relating to literary
laws (1763),
Simon-Nicholas H. Linguet, Opinion on the
Ruling of 30 August 1777 Regarding Privileges
(1777)
Jean-François Gaultier de Biauzat, 1739-1815
Every man owes to society the tribute of his physical and
intellectual abilities in exchange for that which he receives
from the other individuals who comprise it. The man of
genius, who communicates his ideas to society, is only
returning, in exchange, the product of those ideas that he
has received from society.
Jean-François Gaultier de Biauzat, Memorandum for Consultation by the
Booksellers and Printers from Lyon, Rouen, Toulouse, Marseille, and
Nisme, Concerning Book Trade Privileges and their Prolongations, at 41
(Imprimerie Alexandre-Antelme Belion 1776).
the differing purposes of these privileges ought to be reflected
in their duration [so that the author] shall retain the privilege
for himself and his heirs in perpetuity, so long as he does not
transfer it to a bookseller; in which case the duration of the
privilege shall be reduced, as a consequence of that transfer, to
the life of the author.”
Arret du Conseil d'Etat du Roi, Portant Règlement sur la durée des Priviléges en
Librairie [Decree of the King's Council of State, containing regulations on the
duration of book trade privileges] Art. 5 (August 30, 1777).
Authors are not securely at the core of the new
[Revolutionary] literary property regime; rather the public
plays a major role.
Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary
France and America, 64 Tulane L. Rev. 991, 1006 (1990).
The most sacred, the most legitimate, the most
unassailable, and if I may say so, the most personal
of all properties, is the work, the fruit of the mind of
a writer; yet it is a property of a totally different
kind than other properties [ . . . ] [Once the work is
disclosed to the public], the writer has associated
the public with his property, or rather he has
transferred it entirely to it. However, because it is
highly fair that the men who cultivate the domain of
the mind, retrieve some fruits from their work, it is
necessary that, during their whole lives and some
years after their deaths, no one may without their
consent, dispose of the product of the genius. But
also, after the fixed delay, the property of the
public commences, and everyone has to be able to
print, publish the works which have contributed to
enlighten the human spirit.
Isaac René Guy Le Chapelier, Report made by M. Le
Chapelier, on behalf of the Constitutional Committee, on the
Petition of the Dramatic Authors, in the Session of Thursday
13 January 1791, with the Decree rendered in this Session, at
16 (National Printing Press 1791) (emphasis added)
Isaac René Guy Le Chapelier, 1754-1794
[Upon publication the work] is no longer the property of its
producer [because] in the nature of things there is no
literary property right in a work once it has been given over
to the public.
Rapport fait au nom de la Commission rassemblée pour la rédaction d’un
projet de loi sur la propriété d’arts, de sciences et des lettres, par le Comte
de Ségur, Moniteur du 28 mars 1837, reprinted in Fernand Worms, 2 Etude
sur la Propriété Littéraire 228, 244, 249 (Lemerre 1878) (Conseiller d’Etat
Riché)
Victor Marie Hugo 1802-1885
Before the publication, the author has an undeniable and unlimited
right. Think of a man like Dante, Molière, Shakespeare. Imagine him at
the time when he has just finished a great work. His manuscript is
there, in front of him; suppose that he gets the idea to throw it into
the fire; nobody can stop him. Shakespeare can destroy Hamlet,
Molière Tartuffe, Dante the Hell. But as soon as the work is published,
the author is not any more the master. It is then that other persons
seize it: call them what you will: human spirit, public domain, society.
It is such persons who say: I am here; I take this work, I do with it what
I believe I have to do, [...] I possess it, it is with me from now on . . . .
Victor Hugo, speech as a Chair of the Association Littéraire Internationale [International
Literary Association] (1870).
Intellectual property does not merely encroach on the public
domain; it cheats the public of its share in the production of
all ideas and all expressions.
Joseph Prudhon, Les Majorats Littéraires: Examen d’un Projet de Loi Ayant pur
but de Créer, au Profit des Auteurs, Inventeurs et Artistes, un Monopole
Perpétuel, in LE COMBAT DU DROIT D’AUTEUR 140, 152-53 (Jan Baetens ed., Les
Impressions Nouvelles 2001)
Pierre-Joseph Proudhon, 1809-1865
Thomas Jefferson, 1743-1826
If nature has made any one thing less
susceptible than all others of exclusive
property, it is the action of the
thinking power called an idea [ . . . ] He
who receives an idea from me,
receives instruction himself without
lessening mine; as he who lights his
taper at mine, receives light without
darkening me [ . . .] society may give
an exclusive right to the profit arising
from
[inventions]
as
an
encouragement to men to pursue
ideas which may produce utility.
Letter from Thomas Jefferson to Isaac
McPherson (August 13, 1813), in THE WRITINGS
OF THOMAS JEFFERSON (Albert Ellery Bergh ed.,
The Thomas Jefferson Memorial Association
of the United States 1907).
[f]or John Adams before the Revolution or for James Madison
after his term as president, the goal was democratic selfgovernance . . . [f]or Benjamin Franklin as a young inventor or for
Thomas Jefferson in his retirement, the goal was the Progress of
Science.
LEWIS HYDE, COMMON AS AIR 228 (Macmillan 2010)
Copyright is monopoly, and produces all the
effects which the general voice of mankind
attributes to monopoly. [ . . .] It is good that
authors should be remunerated; and the least
exceptionable way of remunerating them is by
a monopoly. Yet monopoly is an evil. For the
sake of the good we must submit to the evil;
but the evil ought not to last a day longer than
is necessary for the purpose of securing the
good.
Thomas B. Macaulay, A Speech Delivered in the House of
Commons (Feb. 5, 1841), in VIII THE LIFE AND WORKS OF
LORD MACAULAY 201 (Longmans, Green, and Co. 1897)
Thomas Babington Macaulay,
1st Baron Macaulay, 1800-1859
Monopolies [ . . . ] ought to be granted
with caution, and guarded with strictness
against abuse [ . . . ] A temporary
monopoly . . . ought to be temporary [ . . .
] Perpetual monopolies of every sort are
forbidden not only by the genius of free
Governments,
but
also
by
the
imperfection of human foresight.
James Madison, Jr. 1751-1836
James Madison, Monopolies, Perpetuities,
Corporations, Ecclesiastical Endowments (1819), in
Aspects of Monopoly One Hundred Years Ago, 128
HARPER’S MAGAZINE 489-490 (1914).