It is curious how a small email, a simple “hello,” or a genuine ask can sometimes catapult a curious conversation, and sporadically even a new camaraderie. Voilà, such is life!
This happened to me recently.
I was recently working on my PhD chapter dealing with the interwar copyright discourse, and one name kept popping up: Dr Julius Kopsch. Naturally, I found myself wondering: who, pray, is this copyright curiou? Only later did I discover that Kopsch was a prominent figure in German copyright during the interwar years—and, dare I say, no stranger to controversy! (More on those controversies anon…)
Inquisitive (or perhaps simply procrastinating from my main task of actually writing the chapter?), I began ferreting out the name and happened upon the wonderful website of Tobias Broeker, a collector and preserver of manuscripts and scores, particularly from the twentieth century.
And then came the little surprise.
Tobias, as it turns out, holds part of Kopsch’s estate. Not merely musical manuscripts, but a rather curious collection of letters and documents covering Kopsch’s activities throughout his life. Id est, his concert programmes, his work as a conductor, documents relating to his copyright activities at the Genossenschaft Deutscher Tonsetzer and beyond, his work with the Ärzte- und Juristenorchester, and the Richard Strauss Gesellschaft. If intrigued, here’s the full finding aid to see other Kopsch’s niceties it entails.
Well … if you know, you know. For someone interested in the history of copyright—or simply in the strange joy of leafing through dusty documents, dying papers, and hazy handwritten notes—this was an invitation too tempting to resist!
So, curiosity piqued and hope duly mustered, I wrote to Tobias and asked if I might see the copyright-related material.
Lo and behold! Not only was his response prompt and positive, but Tobias digitised the materials almost immediately. The very next day, he shared the digitised archive with me.
May his tribe increase! Tobias has made the copyright-related documents available here.
Though I am yet to pore over the file in its entirety, I have already fed it into NotebookLM (a very useful tool created by Google that can come in handy for such research). For the documents are in German, and, alas, this blogger is yet to acquire that particular linguistic superpower.
NotebookLM described the documents as follows. But do have a look through the archive yourself, should it pique your interest:
“A significant portion of the material examines the advocacy for extending copyright protection from 30 to 50 years, highlighted by the writings and activism of Wenzel Goldbaum. The archive includes various legal articles, correspondence, and manuscripts that track the evolution of intellectual property rights through the Nazi era and into the post-war reconstruction of German law. These sources emphasise the vital role of the Genossenschaft Deutsche Tonsetzer (GDT) in protecting the economic and moral interests of composers like Richard Strauss. Additionally, the texts provide a comparative analysis between German and Italian copyright reforms, reflecting a broader European shift toward systematic legal protection for creators. Together, the collection serves as a historical record of the struggle to secure fair compensation and artistic freedom for intellectual workers.“
If you like to transcend copyright contours ….
If you have an interest in the arts, music, cultural history, or enjoy savouring the sheer serendipity of archives, Tobias’s website is well worth a wander. There are some wonderful things tucked away there.
For instance, Tobias has a long-term objective of “helping to bring unknown or forgotten compositions on stage.” In keeping with that mission, his website has a rather delightful page titled “Research Effects,” where he lists “the most prominent effects I had on the creation or performance of compositions.”
’Tis a good reminder that we can quietly shape the afterlife of forgotten works—perhaps before we forget that there was something to be forgotten in the first place.
I have already thanked Tobias, and can only wish him the very best in his endeavours. His generosity has certainly made this little archival detour all the more rewarding.
And a final word for those willing or wishing to tread a similar path, I’d say: sometimes the most productive research tool is simply asking. Of course, this presupposes that you have done your homework first!
(This post was first published at IPRMENTLAW – another blog I have been associated with for the last few years.)
Bonjour,
Comment ça va? (Well … my French exhausts itself almost immediately after this … Alas)
But speaking of things unmistakably French, here’s something I wanted to share and briefly talk about: the 1852 French decree…
‘Twas a decree that would go on to undergird the path of international copyright law and, in many ways, foreshadow the beginnings of the Berne Convention for the Protection of Literary and Artistic Works, 1886 (the first international copyright treaty). Yet it offered nothing new, 19th-century scholars argued.
You may ask: why do I wake a sleeping decree?
Well … so it happened that a few weeks ago, I was leafing through some literature appertaining to early phases of international copyright discourse and noticed that the famed French Decree of 1852 survives in a rather inaccessible form.
The PSCO website’s scanned pages proved the easiest portal to it, though it may require the patience of a legal archaeologist. (A huge shout-out to the projectPrimary Sources on Copyright (PSOC) 1450-1900for making a lot of primary recipes available with required context and commentary)
Another way to find it here on pages 259–260 of J. B. Duvergier’s 1852 published Collectioncomplètedeslois,décrets,ordonnances,règlements,etavisduConseil d’État:publiéesurleséditionsofficiellesduLouvre;del’Imprimerienationale,parBaudouin;etduBulletindeslois,de1788à1824inclusivement,parordrechronologique… :suivied’unetablealphabétiqueetraisonnéedesmatières. Tis available on the Gallica BnF website.
As I could not find an easily readable text version anywhere, I thought it worthwhile to reproduce the decree here in full both in the original French and in an English translation (using DeepSeek). But whilst dusting off the archival record, I realise that contrary to the exalted status with which this decree is anointed in mainstream discourse, some nineteenth-century commentators greeted it with a more nuanced, and even sceptical, eye. They praised it for its moral might, but they also problematized its much-bandied novelty and moral authority.
‘Twas this forgotten, or perhaps the under-discussed debate, rather than the decree alone, that I wish to discuss in this post. In what follows below, before reproducing the decree verbatim, I share a few reflections on these neglected debates, which seldom find a place in the mainstream telling of international copyright history.
What Nineteenth-Century Scholars Made of It
Long before the age of harmonisation, diplomacy and TRIPS-era sermonizing trade sanctions, France pulled off something rather audacious in 1852 — a decree extending copyright protection to foreign authors without demanding reciprocity in return.
As the accompanying report by Minister of Justice Jacques-Pierre Abbatucci noted, it was an inconsistency and “contrary to universal justice” to protect a foreigner’s physical property in France while leaving their intellectual creations vulnerable to piracy.
At first glance, one may call this move typical of universalist-civilisation logic of the time. But beneath this generosity lay a pragmatic altruism, as some scholars said. By unilaterally protecting foreign works, France positioned itself advantageously in the emerging landscape of bilateral copyright negotiations, securing both cultural prestige and diplomatic leverage.
Alcide Darras, in his commentary, Études théoriques et pratiques de droit international privé. Des droits intellectuels (1887), (page 83), characterised it as marking a shift from mercantilism to universal justice. Reflecting on the decree’s impact, he remarked, in his commentary, that after the Decree of 28 March 1852, the international legal landscape changed entirely. Through this unilateral act of generosity, Darras declared (which I translated),
“France was then able to negotiate not merely as an industrial nation haggling over a tariff with trading nations, but as the sovereign of a moral empire, inviting — and, so to speak, compelling — Europe to sign with her a second declaration of the rights of the intellect.”
And the original French text reads: “Immédiatement après le décret du 28 mars, tout changea de face. Cela devait être; car la France put négocier alors non plus comme nation industrielle marchandant un tarif à des peuples marchands, mais comme souveraine d’un empire moral, conviant, forçant pour ainsi dire, l’Europe à signer avec elle une seconde déclaration des droits de l’intelligence.”
Darras adduced evidence to prove his point (page 83). He noted that while France had managed to secure only four copyright conventions between 1841 and 1852 (when it relied on commercial reciprocity), the moral authority gained from the 1852 Decree allowed it to obtain fifty-seven treaties by 1865. Another 1890 commentary by Lucien Bastide named L’Union internationale pour la protection des œuvres littéraires et artistiques noted that between 1852 and 1857, twenty agreements were entered into (see footnote at page 53).
While often celebrated as the first decree of its kind and the harbinger of modern international copyright law, these scholars have cast doubt on both its novelty and its significance. As Darras, for instance, notes in a footnote (p. 83)
“Even before the 1852 decree came to satisfy the notion of justice in France, its beneficial effects had already been foreseen. Mr Gochut had already remarked in 1839: ‘In matters that must be dealt with in full view of the people, generosity sometimes becomes a matter of tact. A fine example might perhaps have inspired all nations, even those that profit from abuse, whereas a strictly negotiated reciprocity will be accepted only by those states that stand to gain from it’ (Revue des deux-Mondes, Vol. I, (1839), p. 393) During the deliberations preceding the vote on the Franco-Portuguese convention, Mr Barthélémy Samt-Hilaire also said: ‘Once we have begun by declaring that counterfeiting in our country is an offence punishable by law, I believe we shall find it much easier to persuade governments to abolish it in their own countries’ (Moniteur, 30 June–1 July 1851, p. 1852.)”
The Decree that ‘Innovated Nothing’??
More arresting, Lucien Bastide, in his 1890 study of the Berne Convention, offers a characteristic claim that underscores the double-visioned account of the French decree of 28 March 1852. While he acknowledged it as a “monument of law” and a marking of a “new era” in French legal history, he also argued that, from a strictly theoretical lens, it was not a true innovation.
Bastide famously argued that the decree “innovated nothing in reality” and contended that the principle of protecting authors regardless of nationality or place of publication was already legally present in the revolutionary decrees of 1791 and 1793. The 1852 decree merely “sanctioned a situation already legally existing for more than half a century”. (see page 15)
The case of the Law of 19–24 July 1793—often called the “Declaration of the Rights of Genius” and hailed as the “Code of the Rights of Intelligence”—is notable here. The law conferred upon authors, composers, painters, and designers the exclusive right to sell, assign, and exploit their works throughout their lifetime.
Though it said nothing explicitly about foreign authors, to Bastide and Darras, this silence was eloquent… They rather insisted that the 1793 law spoke in a particular universal logic and revolutionary France recognised only frères de l’esprit (“brothers of the mind”).
This meaning, nationality was thus beyond the question. The Revolution had, after all, abolished the droit d’aubaine, the feudal doctrine that allowed the Crown to confiscate a foreigner’s property upon death. In this way, denying protection to foreign authors would amount to a kind of revival of that repudiated injustice, a form of legal spoliation dressed in different clothes.
From this logic, Darras deduced the “true principle” that copyright flowed from the sole fact of creation. As he said, “As soon as the work is born and has appeared to the day, the right to protection is born for the author”.
He believed that the 19th-century courts had “misunderstood” the original breadth of the revolutionary laws, making the 1852 decree necessary to restore those “true principles”. It is in this context that Bastide argued that the 1852 Decree “innovated nothing” but merely restored the spirit of old laws.
The decree found another prominent proponent in the publisher Louis Hachette, one of the principal architects behind the campaign for perpetual literary property. In a letter later cited by Philip Bertocci’s puissant piece, Hachette celebrated the decree’s recognition, “for the benefit of foreigners, in an absolute manner, without condition, of the right of literary property,” because it elevated the issue “to the level of all the great principles of natural law and human rights, instead of reducing it to the petty proportions of a commercial treaty.” In other words, copyright was no longer to be treated as a grubby bargain between trading nations (i.e., through the picnic pole of reciprocity), but as a matter of civilizational principle.
Concluding Thoughts: A French Kiss with Conditions?
It ought not be lost on readers that this French decree came simply out of universal justice. It coincides with France’s growing cultural and publishing dominance. And therein lies the rub: that international copyright was more than a matter of moral enlightenment (which apparently lent it the logic and language). It very much resulted from economic self-interest dominating publishing economies of Europe.
‘Twas a combustible mixture of both (and many other factors I’d say).
It merits mention that the 1858 Brussels Congress on Literary and Artistic Property (arguably, the first international congresses that officially inaugurated the project for international copyright), an assembly of more than 300 delegates, “saluted with respect” the 1852 decree, proclaiming it the “expression of a fundamental truth” and the “living manifestation of a principle of justice too long stifled”. From thereon, it remained a crucial citation in other formative gatherings, especially the 1861 Antwerp Congress and the 1877 Antwerp Congress.
Enough commentary. Let the decree have the last word …
Report and decree on the counterfeiting of foreign works. (X, Bull. DX, n. 3869.)
Report to the Prince-President of the Republic.
Monseigneur, copyright, which consists of the temporary right to exclusive enjoyment of scientific, literary and artistic products, is enshrined in French legislation for the benefit of nationals, and even of foreigners, with respect to works published in France. But the foreigner, who can acquire and possess movable and immovable property under the protection of our laws, cannot prevent the exploitation of his works through counterfeiting on the otherwise so hospitable soil of France. This, Monseigneur, is a state of affairs which one may criticise not only for not being in harmony with the rules that our positive law constantly seeks to generalise, but even for being contrary to universal justice. You will have consecrated the application of a salutary principle, you will have assured the sciences, letters and arts a serious encouragement, if you protect their productions against usurpation wherever they may have seen the light of day, to whatever nation the author belongs. Only one condition seems legitimate to me: that the foreigner be subject, for the subsequent preservation of his right, to the same obligations as nationals. If you deign to approve the views I have just set forth, I will have the honour to submit to you the attached decree, which will have the effect of realising them. I am with the most profound respect, Monseigneur, your very humble and very devoted servant, the Keeper of the Seals, Minister Secretary of State for the Department of Justice, signed ABBATUCCI.
Decree.
Louis-Napoléon, President of the French Republic, on the report of the Keeper of the Seals, Minister Secretary of State for the Department of Justice; having seen the law of July 19, 1793, the decrees of 1 Germinal year 13 and February 5, 1810, the law of 25 Prairial year 3, and Articles 425, 426, 427 and 429 of the Penal Code, decrees:
Art. 1. Counterfeiting, on French territory, of works published abroad and mentioned in Article 425 of the Penal Code, constitutes an offence.
Art. 2. The same applies to the sale, export and dispatch of counterfeit works. The export and dispatch of such works is an offence of the same kind as the introduction onto French territory of works which, after having been printed in France, have been counterfeited abroad.
Art. 3. The offences provided for in the preceding articles shall be punished in accordance with Articles 427 and 429 of the Penal Code. Article 463 of the same Code may be applied.
Art. 4. Nevertheless, prosecution shall only be admitted subject to the fulfilment of the conditions required with respect to works published in France, notably by Article 6 of the law of July 19, 1793.
Art. 5. The Minister of Justice (Mr Abbatucci) is charged, etc.
I found something today, not that dazzling or dramatic (like I found before), but perhaps a useful little footnote at the very least.
While the postwar shift in U.S. copyright policy—from pirate nation to IP policeman—is hardly news, it is still striking to see it stated so plainly on record by Richard C. De Wolf, then Law Officer of the U.S. Copyright Office. There are, of course, other sources that point in the same direction, but having lit upon this one, I thought it worth flagging for further scrutiny. I came across the remark while leafing through the 1938 Proceedings of the American Society of International Law. There is nothing revolutionary here … but only the sort of archival soupçon that lends a scholarly piece a sharper, more serviceable footnote.
Source: Wallace McClure & Clement L. Bouvé, International Law of Copyright, 32 Proceedings of the American Society of International Law at Its Annual Meeting 44–62 (Apr. 28–30, 1938). https://www.jstor.org/stable/25656973
At page 56, De Wolf remarks:
The question is always coining up: Why is it that the United States, which has long been a party to other conventions for the protection of intellec tual and industrial property, should have so long remained outside the Con vention for the Protection of Literary Property.
I think a little reflection answers that question. We have been, in regard to inventions, a creating or producing nation. Our inventions have gone abroad and our interest has been to see to it that an American inventor was protected in foreign countries without too much difficulty. On the other hand, until quite recently the United States has been a consuming country with regard to the creations of the mind in the narrower sense, that is, works of literature and art. Therefore, the interests of the exploiters of literary property have prevailed in this country over those of the producers. But now the shoe is going onto the other foot. Since the advent of American motion pictures and a certain type of popular music, Europe has come to be much more largely a consumer of American products of these kinds than it was in earlier times. Consequently we are beginning to think of the interests of our own creators of literature and art in foreign countries and we are asking the question why should we have to go to thirty or forty different foreign countries and perform formalities in those different countries in order to be sure that these works of ours are protected there.
Something seems inherently wrong and repugnant to logical thinking in the idea that a man, having written a book?and I presume among all of this audience there is no one who has not done it or has not thought of doing it? should have to go through a lot of burdensome formalities in order to have that work copyrighted in every different foreign country. Of course this was the aspect of the thing that was present in the minds of the people who for mulated the International Copyright Convention. Each country, of course, preferred to legislate for itself; each country had a certain national policy with regard to what should be done to protect copyrights and, of course, wanted to adhere to that with regard to the works of foreign authors.
But after a while the system broke down. An Englishman writing a book had to attend to formalities in twenty-five or thirty foreign countries, and a Frenchman likewise. The formalities became so burdensome that every body got together and said, “Here, we will all make some sacrifices. We will sacrifice our national inclinations so far as the citizens of other countries are concerned and, in return, they will sacrifice their inclinations so far as we are concerned, and we will all get together and wipe out the formalities. And the fact of the matter is that the system has worked, and I am sure they would not think of abandoning it. Yet, as Colonel Bouve has pointed out, each country is left with a wide latitude with respect to its own citizens and also with respect to the assertion of protection in the courts of the country.
It seems to me that the time has now come when the United States must take up this question seriously. In fact, it has been taken up seriously for some time past. When I first came to the Copyright Office thirty years ago I met Thorvald Solberg, who then and for many years afterwards was Register of Copyrights and whom you know as a persistent advocate of the adherence of the United States to the Copyright Convention. I am frank to say that I imbibed these views from him, and I hold them now. I think that really will be the next and greatest advance in the field of copyright law which is now open to the United States.
Okay. That’s it from my end today. See you in the next post.
So the other day …. I fell, most unwillingly but quite happily, down a rather curious piece (though I confess I only truly read it now, as one does with the more tempting of intellectual distractions! Alas, life is such).
It was a piece from 1967 in the Duke Law Journal, a slender sixteen-page text … dressed in all the full regalia of the American law review tradition. I mean … the dense, deliberate, and detailedly footnoted text, as though the citations are contesting for attention with the text they adorn.
But there is something else as well that ignites my interest in this piece. For one, there is, I find, something rather beguiling about writing on Soviet copyright discourse. It remains strangely under-visited in English scholarship, or at least, not easily sighted in the usual mainstream historical scholarship. Perhaps it is hiding in some archives acloves, carrying the digital dust … awaiting more patient, more persistent pursuers. At times, I suspect I ought to search more earnestly; there is likely an entire cartography of thought yet unmapped.
Secondly, as I suggested above, I liked the citations of this piece, which detour into forgotten corners, pause for brief historical asides, and occasionally seem to breathe with a life of their own. One begins to feel (at least I did) that the author took greater pleasure in the footnotes than in the main text itself.
(Well … if one were ever inclined toward an IP trivia night, this is the sort of piece one would chip in, quietly and watch the room slowly realise that copyright discourse is far more entertaining than it had dared to assume.)
But I shall not linger in preamble any longer. Below follows the citation of the piece, and thereafter a fragment of its introduction
THE COPYRIGHT laws of a country have no extraterritorial application. Nevertheless, practically every nation in the world, by adherence to either bilateral or multilateral treaties or conventions, protects copyrights of foreign nationals. The Soviet Union alone among the major world powers has refused to recognise international copyright and does not adhere to any treaty or convention for the protection of copyrights. As a result, that country’s state-controlled publishing firms have, generally without seeking permission or paying royalties, printed whatever foreign works they felt were suitable for Soviet minds. During the period from 1917-1950, it has been estimated that one billion copies of books protected by foreign copyright were published in the Soviet Union. Among these were more than seventy-seven million copies of 2700 books by some 200 United States authors, including Jack London, Mark Twain, Theodore Dreiser, Upton Sinclair, Erskine Caldwell, Sin-clair Lewis, John Steinbeck and Ernest Hemingway.” Numerous foreign scientific and technical publications, short stories, plays10 and miscellaneous articles¹¹ have also been published in the U.S.S.R. Thus, that country has been characterized as “the world’s most active literary pirate.”This article will consider various reasons for the Soviet Union’s position concerning international copyright. In addition, it will outline some attempts which have been made to change the Soviet view and evaluate future prospects for the solution of the problem.
Happy New Year! Hope you had a nice beginning of the year!
I recently published an article in the Indian Journal of Law and Technology, co-authored with my good friend Luca Schirru. Apart from being a brilliant human being and an exceptionally kind soul (!), Luca is a Post-Doctoral Researcher at the Brazilian Institute of Citizen Science (INCC), Research Coordinator at the Centre on Knowledge Governance, and a Research Fellow at CiTiP, KU Leuven
Though I must note here that given the rapid pace of AI developments, parts of the piece may already feel dated, and my own understanding of discourse has evolved since we wrote it a few months ago. Nonetheless, the article can provide useful insight into the limitations of contemporary copyright thinking and open up a broader inquiry into what limits our thinking.
Below is the abstract of our piece. Those interested in the piece can check the full piece here. Full Citation: Vyas, Lokesh and Schirru, Luca (2024) “Indian Copyright Law in the Age of GenAI: Knowledge/Power, Patchwork, and Peril,” Indian Journal of Law and Technology: Vol. 20: Iss. 2, Article 2. DOI: 10.55496/ZGDS8505
Abstract
Isn’t copyright law an analog relic, striving to stay relevant in a digital world and hoping to survive an AI-driven and quantum-coded future? We argue it is. It is a law, born in a world of paper and print, now finding itself (again) patching its foundations to keep pace with generative AI (‘GenAI’). This unruly, still-developing technology not only redefines creative processes but also challenges the very assumptions of authorship, creativity, and copying. While discussions on this technology and copyright law abound, amid all the noise, one question simmers beneath the surface: ‘Is the very way we approach GenAI and copyright already shaped—if not confined—by the limits of discourse, where the language of law now struggles to think beyond itself?’. This question matters because, by the time the AI/copyright debate reached Indian courts, the terrain of legal arguments, policy proposals, and ideological fault lines appears to have been already drawn.
From U.S. lawsuits to European policies, the discourse around GenAI and copyright had crystallised into a vocabulary of ‘fair dealing’, ‘licensing’, and ‘exceptions’, leaving little space to rethink beyond the oft-claimed solutions. We argue this is not merely about finding the correct legal answers anymore. It is about the discourse—the invisible architecture of thought that shapes (and saps) what can be said, imagined, or reformed. In India, one can sense the gravitational pull. Our legal debates echo the voices of distant courtrooms and Brussels backrooms. While the facts may differ, the footnotes may change, the lingo may be localised, the skeleton of arguments remains eerily familiar. There is little space, it appears, left to ask the most fundamental question: ‘What do we want copyright to do for us now?’.
Drawing on Foucault’s ideas of knowledge/power, this paper offers a discourse analysis of the current AI/copyright conversation. We do not aim to critique GenAI reforms per se, but to underscore the discursive boundaries within which such reforms are conceived, debated, and defended. If employing copyright law as the primary tool to deal with Gen-AI-related issues is a trap, the more profound question becomes: ‘Who built it, who benefits from it, and who remains stuck?’. Far from being a jurisprudential vacuum (as the first hearing in ANI v. OpenAI suggested), India’s GenAI debates are already saturated—saturated with inherited ideas, imported frameworks, and invisible hierarchies of thought. This paper is an attempt to lift that lid and let a little fresh air in. After all, it is through the cracks (or perhaps, diagnosing the gap) where the light comes in.
The post is incomplete without acknowledging the many minds that shaped it. We owe a big thank-you to Bharathwaj Ramakrishnan and Aditya Gupta for their thoughtful comments on earlier drafts! We are also grateful to Professor Sean Flynn, Director of PIJIP, where both of us have worked (and continue to work) in different capacities. Many of the ideas in the piece were forged, consciously or otherwise, in there. And, as is often the case, several strands of thought in this piece owe their origin to my long conversations with Swaraj Barooah and other members of the SpicyIP family. And of course, a big shout-out to the IJLT team for their useful feedback and much-needed patience! The usual disclaimer applies: any errors, infelicities, or excesses of enthusiasm are entirely ours. After all, as some wise soul once said, mistakes are what make us human.)
I recently came across a fascinating work on the history and theory of copyright law titled Critical Perspectives on the History and Philosophy of Copyright by Ronald V. Bettig, published in 1992. It references some compelling historical studies related to copyright law and, more broadly, knowledge production. I will be discussing some of these in my upcoming post. In this post, I want to introduce readers to Bettig’s work and briefly outline its content. I would encourage readers to check it out—it is relatively short, spanning only 26 pages.
“The philosophy of intellectual property reifies economic rationalism as a natural human trait and assumes that, without mechanisms such as copyrights and patents, human beings would cease to be intellectually and artistically creative. To discover the roots of this assumption, this article employs a theoretical combination of political economy and the cultural history of communications to locate the origins of the concept of literary property. With attention directed toward the modes and relations of production and communication, this study reveals that the rise of capitalism and the development of the printing press are the keys to understanding the emergence of intellectual property law and how it serves as the basis for the “enclosure” of the intellectual and cultural “commons.”
Betty begins the piece by noting that
“Critical research on intellectual property is still pioneering work, including the relatively unexplored history of copyright. The traditional histories of copyright (see Bugbee, 1967; Patterson, 1968; Putnam, 1896/1962; Whale, 1971) provide adequate descriptions of the origins and evolution of copyright but lack any real explanation for its emergence and function. These histories are also teleological; they treat the evolution of the concept of literary property as a reflection of the natural progressiveness of human beings. The history of copyright developed in this article is based on an analytical framework that stresses the modes and relations of production and communications as the key explanatory variables in accounting for the origin and development of a concept of literary property. Accordingly, this history of copyright suggests that there is an essential connection between the rise of capitalism, the extension of commodity relations into literary and artistic domains, and the emergence of the printing press.
The first section of this article looks for evidence of intellectual property rights in ancient and medieval times. In a second section, an analysis of the dawn of capitalism and the development of the printing press is linked to the emergence of copyright, a crucial connection that is generally neglected in the traditional histories. The evolution of copyright in England and the United States is the central focus of the third section, which includes a significant revision and expansion of previous copyright histories on the connection between John Locke and the articulation of literary property rights. Patterson (1968) argues that a historical analysis of copyright “removes obstacles—long-continued acceptance of certain ideas, self- interest, and the pressing need to resolve immediate problems—which may be present when analysis occurs in a wholly contemporary context” (p. 223). It also provides the occasion, in the last section of this work, to compare the earliest ideas concerning copyright to current copyright practices. Here special attention also is paid to patterns of ownership and control of intellectual and artistic creativity.”
Okay, I leave this here. Bettig structures this piece into 6 parts, but I’ll leave the details for readers to explore further. Bettig’s piece, I reiterate, can be a useful piece for understanding the historical and theoretical underpinnings of copyright and knowledge production.
A few months—or perhaps years—ago, I heard a story of a monk, perhaps in one of Osho’s talks, who had recently returned to my mind, making me wonder once again what time truly is, and how deeply it shapes our legal imagination. So the story goes like that:
A Zen monk was working in the garden, digging the earth.
A visitor asked, “What are you doing?”
The monk replied, “I am digging.”
The visitor pressed further, “I can see that you’re digging, but who is digging?”
The monk paused, smiled, and said:
“There is no one digging—there is only digging.”
Or, as another version puts it:
“I am the very act of digging.”
Lately, I’ve been tussling with this idea of time. An endlessly exciting concept, as it is. Its meanings and non-meanings spill across disciplines: science, philosophy, psychology, and religion. And yet, my own small mind keeps returning to it through what I know better—intellectual property law.
People often speak of those rare moments when time seems to cease. Yes, those moments of immersion, of pure flow. As Professor Shamnad Basheer once wrote, in a very creative piece where I first encountered this idea of “flow,” creation arguably happens in such a state. Put simply, when we write, paint, compose, or lose ourselves in love, time seems to stop. The past and future fall away. Only the act remains. As this twitter/X user named Keshavchan defined it so nicely, “flow state. that scene in f1 when Brad was flying. in whiplash, when miles teller was one with drums. when time slows down and you are operating at a frequency beyond thought. You are no longer making something, you are simply the conduit through which it comes into being”
Put otherwise, one can understand flow as a psychological and even a phenomenological state: a becoming in which the self dissolves into the act, where the actor and the act become one, just as the monk in the story became the digging. As G. N. Devy beautifully writes in A Crisis Within, reflecting on Buddhist thought:
“Abhinavagupta postulated that ‘the knowledge of Truth is just another name for the knowledge of the Self’. For him, all experience and all dramatic sentiments were justified in their ability to evoke the experience of that which is ‘permanent nature’, the ‘sthayibhava’ of ‘moksha’. Knowledge for him was, thus, ‘realizing’ and not a (or the) ‘realization’.”
Devy offers several examples suggesting that systems of knowledge production and governance in ancient India rested on epistemic foundations quite distinct from those we take for granted today—particularly from the proprietary logic that underpins modern notions of copyright.
Returning to the idea of flow, one could say that it unfolds in a space outside measurable time. Something that mystics and metaphysicians might callkairos (qualitative, lived time) rather than chronos (quantitative, historical time). It is in this moment that the “I” which owns, measures, or names wonderfully withers away, leaving only the act itself.
But once the work is produced, fixed, and transformed into “information”—or a fount of information—it re-enters chronos. It becomes subject to laws, such as copyright laws, data laws, and other systems of record and recognition, which can be seen, exchanged, owned, copied, and thus legislated. Here, copyright becomes a technology of knowledge governance, through which the timeless flow of creation is arrested and put back into a temporal, property-bearing form. And here, dear reader, in this very domain of time, the work becomes an event: authored and evenutated by someone, made at a particular moment, and protected for a ‘duration’. After all, this, this very realm of time makes governance possible. Doesn’t it?
And hither I wonder, and only wonder (with no critique of law or anything like that) … how do we reconcile or even re-imagine these two experiences of time? On one side, creation ‘arguably’ arises from a space (?) where time does not exist. This is a personal experience. On the other hand, it must exist in time to be seen, shared, or even acknowledged. What does this passage look like? I, for sure, don’t know. And perhaps I may even be wrong to speak of space while questioning the boundaries of time. What thou says?
As Kant would have it, time, along with space, is an a priori condition of experience. We cannot think or feel without it. Love, grief, or joy, all actions unfold in duration. Every action/doing occurs across time, beginning somewhere and ending somewhere. Or, should I believe what Shri Krisha in the Bagavad Gita said, “अंतः अस्ति प्रारंभः/Antah Asti Prarambh”, i.e., meaning “The End is the Beginning”. I am tempted to second him.
And yet, I would say, the act of creation, like meditation, or perhaps love, if it may, momentarily frees us from time. The two are inseparable: we need time to recognise what it means to be timeless. No? Or, creation is not an escape from time, but a play with it. A tango between the eternal and the temporal, between pure becoming and fixed being, if you will.
Maybe.
Okay, time to be back in the realm of time… See you again 😉
Thanks to Sahana Simha for her comments on the draft.
In the previous posts, I shared the three speeches delivered by Victor Hugo at the 1878 Paris Conference. (See here: Speech one, two and three) However, there was also a cogent counterpoint to Hugo by Mr Pataille, an author and member of the Société des gens de lettres and its judicial council. As the source document states (mentioned below, page 27), his arguments were presented in a letter addressed to members of Congress, but could not be printed in time for distribution before the vote.
While he remains loyal to the idea of authors’ rights as a form of property, he pushes back hard against Hugo’s more idealistic vision. At one point, he asserts, defiantly so:
“… Let us remain realistic. – The author is everything, and the public domain is nothing! – Whether the author has released his work to the public or kept it in his desk, he remains the sole and unique owner. — If he can no longer recapture the ideas he has put into circulation, he nevertheless retains exclusive ownership of his name and the material form he has given to those ideas.”
Well … that sounds spicy! Doesn’t it? And yet, Pataille isn’t blind to solidarity. He also applauds Hugo’s “the grand and beautiful idea of establishing a common fund for men of letters.” but picks holes for two reasons “first, because imposed charity is not charity, it is a tax; second, and above all, because a fund established and financed with public funds for the benefit of an entire category of unnamed individuals would be nothing more than disguised alms, whereas I want any relief fund to be based on the principles of mutuality and solidarity.”
Okay, without much mediation, below is an English translation of Pataille’s letter (via DeepL). For the French original, see pages 27-33, Pataille, J., ed. Annales de la Propriété Industrielle, Artistique et Littéraire, Vol. 25 (Paris, 1880), available through Gallica—the fantastic(!!!) digital archive of the Bibliothèque nationale de France. Needless to say, if you can’t find it there, let me know. I’ll share a copy.
To the members of the International Literary Congress.
Gentlemen and honoured colleagues,
Ever since the issue of authors’ and artists’ rights to their works has been raised and debated, both in times of privilege and since the recognition of equality for all before the law, in publications by interested parties and in the work of legal experts, in congresses and legislative assemblies and, let us say, in the
texts of the laws themselves, there has always been antagonism between those who support authors and those who support the public domain.
There was a time when the struggle was so fierce that the system known as the paid public domain appeared to many good minds as a happy compromise between the two extreme parties; so I was not surprised to hear our great poet and honourable president defend the interests of the public domain with the generosity of sentiment and magnificence of language for which he is known.
But after the incessant conquests of the authors’ party, when there is hardly any discussion left except about the word and we have the thing itself, when almost all modern legislations recognise, under different names, the legitimacy of their rights and are ready to extend their duration and increase their guarantees, I was strangely surprised to to see friends from our ranks and authors ready to accept, as progress and as the law of the future, a system which, in law, is a denial of the property for which I have been fighting, along with so many others , for more than forty years, and which, in fact, constitutes a veritable expropriation of the rights of heirs , with the aggravating circumstance that, place of prior compensation, they are granted only an arbitrary and problematic royalty that is as difficult to collect as it is to determine and guarantee. This is what prompted me to speak at the last session of the Congress and what prompts me to take up my pen today, at the risk of arriving too late.
From a theoretical point of view, the system of paid public domain is based on what I believe to be the erroneous opinion that, once published, a work belongs to everyone or, at the very least, that there are two co-owners with equal rights: the author and the public. Let us examine this as quickly as possible.
In the interest of the public domain, it is always said that authors and artists work on a common fund and that by delivering their work to the public, they are only giving back what they have taken from it. This has been said, and very seriously, in legislative assemblies.
In the interest of the public domain, it is always said that authors and artists work on a common fund and that by delivering their works to the public, they are merely giving back what they have taken . This has been said , and very seriously, in legislative assemblies . I do not think I need to refute the objection in a literary congress. This is obviously confusing the idea, the thought, with the work that is its expression. Proclaiming ownership of the work does not mean seeking authorship of the ideas it may contain, and even if it were true that they were inspired by earlier works, the new form given to the same subject, to the same thought, is enough to make it a unique and personal work. ” Who would dare, as we have written elsewhere, to ask La Fontaine to account for the borrowings he made from his predecessors? Did he not appropriate all the subjects through the charm of his style and the profusion of details and philosophical ideas with which he enriched them? Did this appropriation diminish the public domain? No! The Fables of Aesop and Phaedrus have lost none of their originality, and if there has been imitation, that imitation is in itself a masterpiece, and therefore a new work constituting property.
“Even though an author has only compiled a work, he has engaged in an intellectual process of appropriation that serves as the basis for a private right, while allowing everyone else to do the same, on the sole condition that they do not take away what is personal in that work . “
Even the most ardent defenders of the public domain are willing to recognise that as long as the work is unpublished, it is the sacred, exclusive property of the author, who remains free to communicate it to the public or to destroy it. – So far, therefore, there is no primary ownership of the public domain, nor even co-ownership. The public remains in possession of everything it previously possessed; it therefore has no claim to assert.
It’s a fact! – But is it right? No! This is the perpetual confusion between, on the one hand, the idea which, once expressed, escapes me and becomes the property of anyone who wants to appropriate it, and on the other hand, my name and the form given to this idea, the book, which remains my property because it is the fruit of my intelligence and my work.
It is said that the author can no longer destroy his work, nor modify it!
But that is the question within the question; it is very certain that once he has entrusted his work to the public and sold copies of it, he will, in fact, find it all the more difficult to buy them all back, as the people who have acquired them will be entitled to reply that they own them by virtue of a regular contract and his own consent.
However, does it follow that, on the one hand, the author will not be able to modify or disavow his original work and, on the other hand, that each of these owners of old copies will be able to reproduce them to his detriment and against his will?
Of course not! – The author’s right of ownership, which derives from the very nature of his creation, is not limited to a simple right to publish or not to publish, to choose his publisher and the method of publication; it necessarily includes the right to prohibit any subsequent publication, either to complete, modify or transform their original work, or even, if they so wish, to keep it silent, as far as it depends on them.
It is understood that he retains these rights only insofar as he has not voluntarily transferred them to a publisher or a third party. However, as for the public, and especially purchasers, they have acquired and paid for only copies of which they are the undisputed owners with the jus utendi et abutendi, that is to say, the right to use and dispose of them and even to destroy them, but not to reproduce them by printing or other means. Why? Because this is the spirit of the contract that has been entered into between the seller and the purchaser, and which must be interpreted and executed as if each purchaser had signed a deed whereby, acknowledging that they have only purchased and paid for the copy, they undertake not to reproduce it.
If this is true for each individual purchaser, it will be true for all and for the public domain, which is nobody precisely because it is everybody. Once again, no one disputes that the public has the right to profit from the ideas expressed, but that it claim ownership of the work itself , that it claims to have acquired the right not only to draw inspiration from it, but to alter and mutilate it or to make copies or reproductions of it , in order to derive commercial profit to the detriment of the author or his successors, is something that we will never accept. In reality, he has only a right of use.
If we argue that it is in the public interest for certain works to fall into the public domain as soon as possible, so much the better! Civil law is there for that purpose. In its omnipotence, it can decree the expropriation of a literary work, as of any other property, for reasons of public utility, but it must pay for its value. It can even, in exchange for the special protection it grants, limit its duration, just as it limits the duration of ownership of a mine or a railway. This has been accepted by all modern legislation, even by those, like ours, that recognise the principle of authorship.
However, when life annuities and variable rights are gradually being replaced by fixed and certain rights that eliminate uncertainty and make it possible to plan for the future; when the duration of the rights of heirs and concessionaires, which was only ten years not long ago, is now fifty years in France, Russia, Denmark and Norway; when we see so many other legislations ready to follow this path of increasing duration, with Spain, in particular, bringing it to eighty years, I do not understand why we are thinking of going backwards and making the public domain the owner of the work from the death of the author!
Nevertheless, we are willing to reserve a royalty for the direct heirs, to be paid by each publisher. I will not dwell on the difficulty, not to say impossibility, of setting this royalty in a way that is both remunerative and equitable. Any determination made without the cooperation and outside the parties concerned (the heirs and future publishers) will necessarily be arbitrary and, in most cases, unfair, whether a uniform royalty is adopted for all literary works without distinction or whether classes and categories are established.
As I told you at the last meeting, Horace was able to write, in a burst of legitimate pride:
Exegi monumentum ære perennius,
because no one knows what became of his bust and there is not one of us who does not have his works in their library; but it is not given to many to impose themselves on all generations and there are many degrees even among the greatest and most illustrious! Moreover, it is not always the name or talent of the author, nor even the merit of the work itself, that makes a book successful.
Habent sua fata libelli,
says the poet! Some books, indeed, shine and disappear like meteors; others take ten, twenty, thirty years to make their way and are often only appreciated at their true value after the death of the author. If this is true for the works themselves and from the point of view of their intrinsic merit, how much more true is it from a commercial point of view! A novel, even a bad book, will find thousands of readers and make the publisher’s fortune, while a scientific work that has cost its author thirty years of labour and has its place in all the major libraries will find, with great difficulty, only a few hundred buyers. Is it not clear that such a work, even if unpublished, will not find a publisher if, in exchange for the royalties to be paid to the heirs, the publisher does not obtain exclusive rights for at least a few years, and if, by undertaking a costly edition worthy of the work, he finds himself exposed to being overtaken and perhaps ruined by cheap editions!
I am well aware that these objections and many others, which will strike anyone with some practical knowledge of bookshops, can be levelled at the system of paid public domain adopted by the first section, of which I was a member. But you will note that the resolution it proposes to you only allows this after the expiry of the heirs’ absolute property rights. For several members of the section, this was only a compromise and a step towards the declaration of perpetuity, and in any case it did not affect acquired rights, whereas the proposal for a paid public domain applied at the very moment of the author’s death is a step backwards and a real denial of the author’s absolute right. I am well aware that inheritance law is a civil law institution. But it is so in tune with the family spirit and the aspirations of all that it is one of those rights which, if they did not exist, would have to be created. There is no one among us who, when working, does not think about the future and the fate of their children and their property, and if one has the right to leave one’s fortune to one’s children and to bequeath to one’s parents or friends the jewellery or objects one has been most fond of, it is difficult to understand why the law would deprive an author of the right to pass on all or part of their literary works to their spouse, children or even strangers of their choice. What is the point of proclaiming loudly that it is the most personal and sacred of all property, only to immediately deny the author of a literary work a right that is granted to the manufacturer and even to the mere purchaser of a table or a snuffbox?
Our honourable and illustrious president, whose door is besieged by publishers and who has nevertheless made himself an ardent defender of the public domain, has anticipated the objection by proposing an exception for the benefit of publishers who have acquired a work during the author’s lifetime and who, by derogation from the principle of paid public domain, will continue to enjoy their exclusive right for a period of fifty years . But if it is true that the author loses all his rights upon his death, that his heirs are nothing and that the public domain is the true owner, it is difficult to understand this distinction between transfers made during the author’s lifetime and those that only take effect after his death. In the future, we would have two categories of authors and literary properties, depending on whether or not there was a transfer before death, and we would be exposed to seeing authors, on their deathbeds, calling a notary, not to make a will that would be invalid from the outset, but to try to make a more or less sincere sale to a publisher called in extremis!
No! Let us remain realistic. – The author is everything, and the public domain is nothing! – Whether the author has released his work to the public or kept it in his desk, he remains the sole and unique owner. — If he can no longer recapture the ideas he has put into circulation, he nevertheless retains exclusive ownership of his name and the material form he has given to those ideas. – He alone has the right to revise and modify his work , to judge and assess what kind of publicity suits it, whether it is worthy of a deluxe edition or suitable for a popular edition, and what he has the right to do during his lifetime, he must be able to do after his death, by choosing himself the person or persons he deems most worthy of safeguarding his glory, either by publishing new editions or by preventing truncated and flawed editions that would dishonour his work .
It should not be forgotten that, for an author who is convinced and jealous of his fame, this absolute right to watch over or have his work watched over is far more precious and sacred than that of receiving the proceeds. But even from this latter point of view, I repeat, I do not understand why anyone would want to diminish the author’s estate and disinherit his heirs and legatees for the benefit of the public domain, which has no rights whatsoever as long as those of the author or his heirs exist.
On the other hand, when this property perishes either because there are no heirs or because the period determined by civil law in its omnipotence has expired, I do not understand why the public domain should be obliged to pay a perpetual fee to the benefit of what has been called “the literary family”. Like all of you, I applauded the generous words of our illustrious president, insofar as they expressed the grand and beautiful idea of establishing a common fund for men of letters. But I reject the means – first, because imposed charity is not charity, it is a tax; second, and above all, because a fund established and financed with public funds for the benefit of an entire category of unnamed individuals would be nothing more than disguised alms, whereas I want any relief fund to be based on the principles of mutuality and solidarity. Let everyone contribute their mite in order to be entitled, if necessary, to a share in the distribution of the common fund; let the rich be generous and even give up their copyright in favour of this common fund; nothing could be better! Those who see their share increase accordingly will know to whom they owe it and will bless them. But no taxes! There is fraternity only where there is spontaneity.
Recevez, etc.
J. PATAILLE,
Avocat à la cour d’appel , membre du conseil judiciaire
This is the third and final speech where Hugo advocates for the “paying public domain”. Speech no. 1 is here, and speech no.2 is here. Two points are particularly interesting in this speech.
One, Hugo interestingly mentions two kinds of heirs to an author—one heir to blood, meaning the author’s immediate family, and the other to spiritual heirs, representing society at large. Hugo believes the latter should be promoted. He also proposes creating a fund financed by public contributions – specifically to support authors and young writers- since there are no longer authors in the traditional sense.
Disclaimer – The following text is an English translation of a French original. The translation was done using DeepL. Although I have made the best of my efforts to maintain the accuracy of the source material. I would suggest you check the original source in Pataille, J., ed. Annales de la Propriété Industrielle, Artistique et Littéraire. Vol. 25. Paris, 1880. Available through Gallica, the digital archive of the Bibliothèque nationale de France. If you don’t find the document, let me know. I will share a copy with you.
Third speech by Mr Victor Hugo, President of the Congress. Session of 25 June.
(Paying public domain / Domaine public payant.)
Gentlemen, allow me to enter freely into the discussion. I do not understand the declaration of war being made on the public domain.
What! Are the works of Corneille, La Fontaine, Racine and Molière not being published? Does the public domain not exist? Where are these works today?
What! Are the works of Corneille, La Fontaine,
Racine and Molière not being published? Does the public domain not exist? Where are, in the present, these disadvantages, these dangers, everything that the Book Trade Circle has been kind enough to announce to us for the future?
All these objections can be levelled at the public domain as it exists today.
The public domain is detestable, they say, upon the death of the author, but excellent as soon as the expiry arrives… of what? Of the strangest fantasy that legislators have ever applied to a mode of property, the deadline set for the expiry of a book.
Here you are entering into the thoughtless fantasy of people who do not know what they are talking about. I have the right to speak somewhat freely about legislators. The men who make laws sometimes know what they are talking about; they do not know what they are talking about when it comes to literature.
Do they at least agree among themselves? No. The term of protection they grant is ten years here, twenty years there, fifty years elsewhere; they even go as far as eighty years. Why? They have no idea. I challenge them to give a reason.
And it is on this absolute ignorance of legislators that you, who know what you are talking about, want to base legislation! You who are competent will accept the ruling handed down by incompetents!
Who will explain the reasons why, in all civilised countries, legislation grants the heir, after the death of the author, a variable period of time during which the heir, as absolute master of the work, may publish it or not? Who will explain the gap that various legislations have placed between the death of the author and the entry into the public domain?
This capricious and bizarre invention of ignorant legislators must be destroyed. It is up to you, indirect but competent legislators, to accomplish this task.
In reality, what did those legislators who, with incomprehensible levity, legislated on these matters consider? What did they think? They believed that the heir of the blood was the heir of the mind. They believed that the heir of the blood must have knowledge of the property he was inheriting, and that, consequently, by giving him the right to dispose of it, they were making a just and intelligent law.
This is where they were greatly mistaken. The heir of the blood is the heir of the blood. The writer, as a writer, has only one heir, and that is the heir of the spirit, the human spirit, the public domain. That is the absolute truth.
Legislators have granted the heir of the blood a power that is full of disadvantages, that of administering property that he does not know. The heir of the blood is most often at the discretion of his publisher. Let the blood heir retain his right, and let the heir of the spirit be given what belongs to him, by establishing the public domain as payable, immediate .
What! Immediately? Here comes an objection, which is not really an objection. Those who raised it had not heard my words. I am asked: What! Will the public domain immediately seize the work? But if the author has sold it for ten years, for twenty years, will the person who bought it be dispossessed? No publisher will want to buy a work anymore.
I said precisely the opposite, the text is there. I said: “Except for concessions made by the author during his lifetime, and contracts he has signed.”
The result is that if you have sold the ownership of one of your works to a publisher for a specified period of time, the public domain will not take possession of that work until after the period you have set.
But can this period be unlimited? You know, gentlemen, that property, sacred as it is, nevertheless has its limits. I am telling you something basic when I say that one does not own a house in the same way that one owns a mine, a forest, a coastline, a river, or a field. Property, as legal experts understand, is limited according to the extent to which the object belongs to the public interest. Literary property belongs more than any other to the public interest, and must therefore also be subject to limitations. The law may very well prohibit the sale by the author of the perpetual property of his work; this is a simple restriction. The law may prohibit absolute sale and grant the author, for example, fifty years. I believe that there is no author who would not be satisfied with a possession of fifty years.
This argument therefore collapses entirely and should not have been put forward. Immediate paid public domain does not remove the author’s ability to sell their book for a fixed period; the author retains all their rights.
Second argument: Immediate public domain, by creating enormous competition, will harm both authors and publishers.
Books will no longer find serious publishers.
I am surprised that the honourable representatives of the book trade who are here support a similar thesis and act “as if they did not know”. I will teach them what they know very well, what happens I will teach them what they know very well, what happens every day. During their lifetime, authors sell the rights to exploit a book, in a given form, in a given number of copies, for a given period of time, and stipulate the format and sometimes even the selling price of the book. At the same time, he sells another format to another publisher, under different conditions; to another, a different mode of publication; for example, a cheap illustrated edition . There is someone here talking to you who has seven publishers.
So, when I hear men whom I know to be competent, men whom I honour and esteem, when I hear them say, “We will not find publishers, in the face of competition and unlimited freedom of publication, to buy and publish a book,” I am astonished. I have proposed nothing new; every day, we have seen, we see, during the author’s lifetime and with his consent, several publishers, without harming each other, and even by helping each other, publish the same work. I have proposed nothing new; every day, we have seen, we see, during the author’s lifetime and with his consent, several publishers, without harming each other, and even by helping each other, publish the same work. I have proposed nothing new; every day, we have seen, and continue to see, during the author’s lifetime and with his consent, several publishers, without harming each other, and even helping each other, publish the same book. And this competition benefits everyone, the public, the writers, the booksellers!
Do you see any interruption in the publication of the great works of the great French writers? Is this not the most exploited area of the book trade? (Signs of approval.)
Now that it is well understood that entry into the public domain does not hinder the author and leaves him the right to sell the property of his work; now that it also seems to me to have been demonstrated that competition can be usefully established on books, after the death of the autor as well as during his lifetime, let us return to the matter at hand.
Let us suppose that the public domain is remunerative, immediate, and established.
If there is a direct heir, he pays the royalty to that direct heir; for note that we stipulate only for the direct heir, and that all the arguments put forward concerning collateral heirs and the difficulty of discovering them vanish.
But when there are no direct heirs, what happens?
One of two things: either the public domain continues to exploit the work without paying royalties, since there are no longer any direct heirs, or it continues to exploit the work by paying royalties.
To whom?
It is here, gentlemen, more than ever, that I affirm the usefulness of perpetual rent. You all know that nothing would be more useful than a sort of common fund, a considerable capital, solid revenues, applied to the needs of literature, which is constantly evolving. There are many young writers, young minds, young authors who are full of talent and promise, and who encounter immense difficulties at the outset. Some do not make it; they lacked encouragement, they lacked bread. Governments, as I explained Governments, as I explained in my first public remarks, have created the pension system, a system that is sterile for writers. But suppose that French literature, through its own strength, through this tithe levied on the immense product of the public domain, possesses a vast literary fund administered by a writers’ union, by this Society of Men of Letters which represents the great intellectual movement of Europe. Suppose that your committee has this very important function of administering what I would call “the civil list of literature”. Can you imagine anything more beautiful than this: all works that no longer have direct heirs fall into the public domain and the proceeds are used to encourage, invigorate and fertilise young minds? (Unanimous agreement.)
Could there be anything greater than this admirable aid, this august legacy bequeathed by illustrious writers who have died to young writers still living?
Do you not believe that instead of sadly and meekly receiving a kind of royal alms, young writers starting out on their careers would feel uplifted to see their work supported by such almighty geniuses as Corneille and Molière? (Prolonged applause.)
This is your independence, your fortune. The emancipation, the liberation of writers lies in the creation of this glorious heritage.
We are all one family; the dead belong to the living, and the living must be protected by the dead. What better protection could you wish for? (Explosion of bravos.)
I urge you to create the paid public domain under the conditions I have outlined. There is no reason to delay the taking possession of the human spirit for even an hour. (Long burst of applause .)
This is the second speech delivered on 21st June 1878, in which Hugo explains his case for a system that focuses more on society and less on the heirs of authors. Though he finds the interest of heirs just as respectable and worth keeping in mind.
Disclaimer – The following text is an English translation of a French original. The translation was performed using DeepL. Although I have made the best of my efforts to maintain the accuracy of the source material. I would suggest you check the original source in Pataille, J., ed. Annales de la Propriété Industrielle, Artistique et Littéraire. Vol. 25. Paris, 1880. Available through Gallica, the digital archive of the Bibliothèque nationale de France. If you don’t find the document, let me know. I will share a copy with you.
Here we go:
Discours de M. Victor Hugo , président du Congrés .(Séance solennelle d’ouverture du 17 juin.)
Since you wish to know my opinion, gentlemen, I shall tell you.
This, moreover, is merely a conversation.
Gentlemen, in this serious matter of literary property, there are two entities involved: the author and society. I use the word entity for brevity; they are like two distinct persons. These two persons, these two entities, know what they are doing and what they want; only they know this.
In a moment, we will address the question of a third party, the heir.
As for me, I have no hesitation in saying that the most absolute, the most complete right belongs to these two entities: the author, who is the first entity, and society, which is the second.
The author knows what he is doing.
Society knows what it wants.
The author gives the book, society accepts it or does not accept it. The fate of the book is decided by society.
The heir does not make the book; he cannot have the rights of the author.
The heir does not create success; he cannot have the rights of society.
I would find it difficult to see Congress recognising any value in the will of the heir.
Let us not take false starting points.
The author knows what he is doing; society knows what it is doing; the heir does not. He is neutral and passive.
Let us first examine the conflicting rights of these two entities: the author who creates the book, and the company that accepts or rejects this creation.
The author obviously has an absolute right over his work; this right is complete. It goes very far, because it extends to destruction . But let us be clear about this destruction . Before publication, the author has an indisputable and unlimited right. Imagine a man like Dante, Molière, Shakespeare. Imagine him at the
moment when he has just finished a great work. His manuscript is there, in front of him; imagine that he has the whim to throw it into the fire, no one can stop him. Shakespeare can destroy Hamlet; Molière, Tartuffe; Dante, Inferno.
But as soon as the work is published, the author is no longer its master. It is then that the other character takes hold of it, call it what you will: the human mind, the public domain, society. It is this character who says: I am here, I take this work, I do with it what I believe I should do, I, the human spirit; I possess it, it is mine from now on. And may my honourable friend Mr. de Molinari allow me to say this to him, the work no longer belongs to the author himself. He can no longer remove anything from it; or else, upon his death, everything reappears. His will can do nothing about it. Voltaire, from the depths of his grave, would like to suppress La Pucelle; Mr. Dupanloup would publish it.
The man who is speaking to you at this moment began as a Catholic and a monarchist. He suffered the consequences of an aristocratic and clerical education. Was he refused permission to republish
works from his childhood? No. (Bravo! Bravo!)
I wanted to mark my starting point. I wanted to be able to say: This is where I started and this is where I ended up.
I said this in exile: I started from a happy position and rose to the misfortune that is the consequence of duty fulfilled, of conscience obeyed. (Applause.) I do not want to erase the early years of my life.
But I go much further, I say: It is not up to the author to make a deletion in his work once he has published it. He can make a correction of style, he cannot make a deletion of conscience. Why? Because the other character, the public, has taken possession of his work.
I have sometimes written harsh words, which I later I would have liked, out of a feeling of leniency, to erase . It happened to me one day… I can tell you this, to condemn the name of a very guilty man; and I certainly did well to condemn that name. This man had a son. That son met a heroic end, he died for his country . So I exercised my right and forbade that name from being spoken in the theatres of Paris, where the plays I have just mentioned were read publicly. But it was not in my power to erase the disgraced name from the work; the heroism of the son could not erase the fault of the father. (Bravo.)
I would like to do so, but I cannot. If I could, I would have done so.
You see, then, how much the public, human conscience, human intelligence, the human spirit, that other character who is present alongside the author, has an absolute right that cannot be infringed upon.
All the author can do is write faithfully. As for me, I have peace and serenity of conscience. That is enough for me. (Applause.)
All that the author can do is write faithfully. As for me, I have All the author can do is write honestly. As for me, I have peace and serenity of conscience. That is enough for me. (Applause.)
Let us do our duty and leave it to the future to judge. Once the author dead, the author gone, his work belongs only to his memory, which will either wither or glorify it. (That’s very true! Very good!)
I declare that if I had to choose between the writer’s right and the right of the public domain, I would choose the right of the public domain. Above all, we are men of devotion and sacrifice. We
must work for everyone before working for ourselves.
That said, there is a third character, a third entity in which I take the deepest interest: the heir, the child. This raises the very delicate, very curious, very interesting question of heredity and the form it should take.
I ask your permission to quickly submit to you, from this new point of view, the ideas that seem to me to result from my careful examination of this question.
What is a book?
The author knows. He wrote it.
Society knows. It reads it.
The heir does not know. It is none of his business.
Joseph de Maistre, Voltaire’s heir, would not have the right to say: I know about it.
The heir has no right to make a deletion, to remove a line. He has no right to delay for a minute or to diminish by one copy the publication of his ancestor’s work. (Bravo! Bravo! Very good!)
He has only one right: to live off the inheritance that his ancestor has bequeathed to him.
Gentlemen, I say this quite clearly. I consider all forms of current legislation that constitute the right of the heir for a limited period of time to be detestable. They grant him complete authority that they have no right to give him, and they grant him the right of publication for a limited time, which is a useless part. They grant him complete authority that they have no right to give him, and they grant him the right of publication for a limited time, which is a useless part. The law is very easily circumvented.
The heir, in my opinion, has only one right, I repeat: to live off the work of his ascendant; this right is sacred, and it would certainly not be easy to make me disinherit our children and grandchildren . We work first for all men, then for our children .
But what we firmly want is for the right of publication to remain absolute and entirely in the public domain. It is the right of human intelligence
That is why, many years ago – I am one of those who sadly have to go back a long way in their memories – I proposed a very simple mechanism which seemed to me, and still seems to me, to have the advantage of reconciling all the rights of the three parties involved: the author, the public domain and the heir. Here is the system: when the author dies, their book belongs to the public domain; anyone can publish it immediately, with complete freedom, because I am in favour of freedom. Under what conditions? I will tell you.
There is an article in our laws that has no penalty, which means it has been violated very often. It is an article that requires all publishers, before publishing a work, to make a declaration to the bookshop management, at the Ministry of the Interior, covering the following points:
1st point: What is the book that he is going to publish?
2nd point: Who is the printer?
3rd point: What will be the format?
4th point: What is the name of the author?
This is where the declaration required by law ends. I would like to see two other pieces of information added, which I will tell you about.
The publisher would be required to declare the cost price for each copy of the book he intends to publish and the price at which he intends to sell it. Between these two prices, in this interval, is included the publisher’s profit.
That being the case, you have certain data: the number of copies, the cost price and the selling price, and you can, in the simplest way possible, assess the profit.
Here, I will be told: You are establishing the publisher’s profit on the basis of a simple declaration and without knowing whether he will sell his edition. No, I want the law to be absolutely fair. I even want it to lean more towards the public domain than towards the heirs. So I say to you: the publisher will only be required to account for the profit he has made when he comes to file a new declaration. Then we say to him: You have sold the first edition, and since you want to publish a second one, you owe the heirs their royalties. This right, gentlemen , do not forget, must be very moderate, for the heir’s right must never be an obstacle to the right of the public domain, an obstacle to the distribution of books. I would ask for only a royalty of five or ten per cent on the profit made .
No objection possible. The publisher cannot find onerous a condition that applies to profits already earned and is so moderate; for if he has earned a thousand pounds, he is only asked for a hundred pounds and is left with nine hundred pounds. You can see how advantageous to him is the law that I propose and that I would like to see passed.
I repeat that this is simply a conversation. We are all seeking to enlighten one another. I have studied this question extensively in the interests of enlightenment and freedom. I look for objections and I confess that I cannot find any. I see all objections to the old system crumbling; everything that has been said about the good or bad will of an heir, about a bishop confiscating Voltaire, has been excellently said, it was true in the old system, but in mine it vanishes.
The heir exists only as a stakeholder, levying a very small royalty on the proceeds of his ancestor’s work. Except for the concessions made and stipulated by the author during his lifetime, contracts that are binding, except for these reservations, the publisher may publish the work in as many copies as he sees fit, in the format he pleases; he makes his declaration, he pays the royalty and that is all there is to it.
Here, one objection is that our law has a loophole. There are legal experts in this assembly; they know that there is no statute of limitations without penalty; however, the statute of limitations relating to the declaration has no penalty. The publisher makes the declaration required of him by law, if he wishes to do so. This leads to a great deal of fraud, the perpetrators of which are now victims. The law should attach a penalty to this obligation .
I would like the legal experts to indicate this themselves. It seems to me that a false declaration made by a publisher could be likened to forgery of a public or private document. A penalty is therefore necessary; in my opinion, it is only on this condition that we will be able to use the system that I have the honour of explaining to you, and which I proposed many years ago.
This system has been taken up with great loyalty and competence by a distinguished publisher whom I regret not seeing here, Mr Hetzel; he has published an excellent paper on this subject.
In my opinion, such a law would be useful. I certainly do not have the opinion of the very distinguished writers who are listening to me, but it would be very useful if, in their resolutions, they would take into account what I have had the honour of telling them:
1º There are only two parties with a genuine interest: the writer and society;
2º The interests of the heir, although very respectable, must come second.
The interests of the heir must be safeguarded, but under conditions so moderate that, in no case, do these interests take precedence over the interests of society.
You have seen all the objections collapse. You have heard my words. I do not wish to influence your decision, and I do not want to know to what extent you will agree with the advice I am giving you.
I believe that your decision will be a good one.
I am sure that the future belongs to the solution I have proposed to you.
If you do not accept it, the future is patient, it has time, it will wait.
(Prolonged applause. – The assembly votes unanimously to have this speech printed.)
