2003
MMLA
New Histories of Writing III:
Laws and Crimes
Maurizio
Borghi
Università Bocconi, Istituto di Storia Economica
Writing
Practices in Privilege- and Copyright-System (On Authorship, Ownership
and Freedom)
I
don't doubt you when you say that five dollars is all you can offer. But
have you ever thought that there may be other ways of remunerating a writer
than by giving cash?
--- Henry Miller Open Letter to Small Magazines
How is writing
influenced by legal systems and the institutions that protect their activity?
Recent studies1 have examined and discussed in depth the relationship
between legal systems and the birth of the concept of the author in various
national and cultural contexts. One of the points that has been focused
on in these researches is the idea that, as Martha Woodmansee has put
it, "one of the most powerful vehicles of the modern authorship construct
was provided by the laws which regulate our writing practices".2
If we look at the history of the laws which regulate writing practices,
we find two fundamental systems that follow each other. The first is "publishing
privilege", and then, from the middle of the 1700's in England, "intellectual
property".
Here an attempt will be made to draw out the significance of the move
from the first system to the second, investigating certain consequences
and repercussions.
This paper is divided into four parts. The first part provides a brief
discussion of the current intellectual property system with particular
regard to the way in which this is interpreted by economic theory. The
second part shows, according to certain essential lines, the system of
printing privilege in Europe between the 15th and 18th centuries. It seeks,
in particular, to reveal the ratio of this system and its justification.
The third part examines the foundation of authorship in Kantian thought.
It discusses the particular link that is established between this concept
and the phenomenon of human freedom. The fourth and final part examines
some possible incongruities in the current intellectual property-system
- incongruities that are noticeable and visible precisely because of the
background of the previous privilege-system and the Kantian foundation
of authorship.
I.
Our
way of relating to books, and more generally to the writings of both past
and contemporary authors, is based on certain more or less explicit assumptions.
The first of these is that books themselves are fundamentally a particular
category of "product". They differ from other industrial or
manual production because they are creative works. The second assumption
is that the only real and legitimate individual responsible for the realisation
of a creative work is the author. The third assumption follows from the
second, by arguing that the author is also the only real and legitimate
owner of the work that he has created. Finally, as the owner of the work
created by himself, the author should have the right to make free use
of his ownership. This means that he should be free to sell it in whole
or part, and that he possesses as well as "moral" rights over
the work (personal and thus inalienable rights), material rights as well.
Taken together, these assumptions influence our relationship with writing
practices (both our own and those of others). They provide a sort of "paradigm",
namely - to use the terms employed by Thomas Kuhn3 - a durable and relatively
flexible system of shared assumptions. For the sake of simplicity we will
indicate this paradigm with the name of its most representative legal
institution, that is to say: intellectual property-system.4
The idea of intellectual property did not always exist. The assumptions
behind it that we have briefly recalled (creativity, authorship, free
use, ownership), are not universal and timeless concepts. They are the
result of a relatively recent, profound and unprecedented change in the
way that people have traditionally related to works of art and thought.
This is a "revolution" that we are perhaps still a long way
away from completely understanding in all its meaning.
Before trying to describe some of the elements of this "revolution"
we should consider one of its consequences. We have said that the author,
as the legitimate and unique owner of the work created by him, can make
what use of it he thinks best. Although he can never renounce his authorship
of a work, he remains free to grant in whole or in part his ownership
of the work. In this way the creative work becomes an exchangeable good.
It becomes, in the full economic sense of the word, a commodity. The relationship
between the writer and society thus takes the particular form of an exchange.
It is an exchange in which the commodity that is exchanged is not just
a product, but the creative product of an author who freely sells his
own property.
From the 1850's onwards, when the fundamental concepts of the intellectual
property system took shape in the laws and legal institutions of different
countries, the traditional legal doctrine progressively moved towards
the concepts and language of political economy.5 From the point of view
of economic theory, the presence of laws that protect intellectual property
is justified on the grounds of the particular nature of these goods that
are "works of the mind". In defining this nature the economists
of the first half of the 1800's sometimes talk about "immaterial
products".6 The central point, that was well explained by Léon
Walras in an article in 1890,7 is that the so-called fruits of human ingenuity
- artistic, scientific or industrial ideas - can certainly be considered
as "useful goods" like the products of industry or manual labour;
they lack, however, an essential condition that makes a useful good capable
of being an object of exchange. This lack is the impossibility of making
them available in a limited quantity. In economics, the limited quantity
of a useful good is called "scarcity". There can only be a demand
for the purchase of relatively scarce useful goods, as no one would ask
to purchase items that are freely limitless such as air or sunshine. As
a result, only scarce useful goods can be privately owned. The characteristic
of ideas, however, is that they are never economically scarce. Once they
become public, they are available to everyone and can be shared by everyone
without losing any of their value. Anyone who wishes to do so can benefit
from them freely, unless some authority does not intervene to make them
artificially scarce, "making a naturally free item into an artificial
monopoly".8 The law that protects intellectual property arranges
things so that ideas and works of intellect become exchangeable and can
pass from hand to hand not freely and without limit, but on the basis
of an economic exchange relationship. In other words, it is a specific
act of authority that adds an "exchange value" to the "value
of use" that these goods have.9
A first indication becomes clear from what has been said: ideas, and specifically
the works of ingenuity, are not naturally commodities, but that they are
nonetheless treated as if they were commodities. This "as if",
this "fiction" has to be guaranteed by an authority that remains
above the individual actors of the economic exchange. No natural market
law (any "unseen hand") is capable of producing this fiction
by itself. The fiction must be established as such.10 From the economic
viewpoint, ignoring for the moment the other, albeit important elements,
the intellectual property-system is a way of establishing the exchangeability
of ideas, and thus a way of giving life to the fiction according to which
these are full commodities like other goods.
Acknowledging that such a fiction is to some degree necessary, we ask
however: is what we have called the "intellectual property-system"
the only possible way of establishing it?
II.
From the period
of the invention and diffusion of printing - at the end of the 1400's
- there was a long pause until the middle of the 1700's before the assumption
began to take shape that the work of the mind should be considered in
all effects the "property" of its "author". It was
only around the middle of the 1800's that this assumption, along with
the other ones related to it that we have described above, was translated
into a stable legal and institutional framework. If we have to give a
name to the way in which, before the invention of intellectual property,
the exchangeability of intellectual work was established and maintained,
we could refer to book privilege.
The book-privileges are usually seen as the forerunners of intellectual
property, and are thus regarded as primitive legal instruments that were
after all inadequate to represent the real "rights" of the author.
Their inadequacy would consist in the fact that the privilege (priva lex
= law-exempt) remained a favour, a concession of the sovereign, almost
the recognition of a status outside or above the law. They were not based
on the principle that ideas are the property of the individual just like
all the other outcomes of his labour. On the occasion of the first meeting
of the international association of writers (1878), Victor Hugo, addressing
legislators warned that "literary property is in the right, and it
is up to you now to bring it in the laws".11 Conversely, privilege
is not just outside the law, but is an explicit exception to law in favour
of an individual or category of individuals.
However, if we examine the privilege system in itself rather than starting
from principles and notions that will take the form of acquired wealth
only in the intellectual property system, the privilege system can have
a different appearance. It might seem not just an "imperfect approximation"
to the intellectual property system, but a rational and successful way
to make the work of the mind an exchangeable good.
Let us thus endeavour to understand the reasoning of the privilege system
without being influenced by assumptions and concepts that emerged later.
The book-privilege is, in some respects, similar to patenting rights for
new inventions. The strict separation, in the sphere of intellectual property,
between "copyright paradigm" and "patent paradigm",
only came about in the second half of the 1800's.12 In Flaubert's celebrated
novel Madame Bovary, 1857, monsieur Homais raises a toast to "industry
and the fine arts, those two sisters!" It is no coincidence that
the distinction between "invention" and "creation"
- a distinction upon which is implicitly founded the subdivision of intellectual
property into copyright- and patent-paradigm - was not made in European
languages before the middle of the 1800's. As late as 1850, Alessandro
Manzoni entitled Dell'invenzione [On Invention] a treatise on the essence
of artistic and literary work.13 Up to the 18th century, the sphere of
invention was ample enough to include what we nowadays attribute to aesthetic
creation.14 Thus, the book-privilege is not different, from the juridical
point of view, from a privilege granted, for instance, to exploit mineral
resources or to the invention of a new loom.
We come to the same conclusion if, instead of looking to the object of
the privilege, we examine the reasons for the request and granting of
the privilege. Apart from contingent motives that might encourage a sovereign
to grant a privilege, the fundamental reason for the granting of privilege
seems to be the need to protect an economic interest. The economic considerations
were frequently explicitly mentioned in both the requests and the privileges
themselves, while considerations of other kinds (social utility, literary
excellence, entertainment value, etc.) appear more rarely.15 Since only
few books had a pre-eminent economic interest, the institution of privilege
was designed almost exclusively for a restricted category of library production.
Of all the books published in Paris in the first quarter of the 1500's,
only 5% or a few more contain on the frontispiece the words "cum
privilegio".16 A similar calculation carried out on Venetian publications
for the period 1741 to 1757 shows that privileged books amounted to 20%
of the total.17 The use of privilege was thus increased but always involved
a small number of publications, and precisely those with a striking commercial
character. In the same way, in England, at least until the end of the
1600's, privileges regarded almost exclusively "classes of books
such as lawbooks, catechisms, Bibles, ABCs and almanacs",18 in other
words books which represented a considerable investment by printers and
were at risk from pirate editions. Still in the 1700's, privilege was
an exceptional fact in the kingdom of Savoy, and only regarded editions
that were of certain success such as almanacs and scholastic editions.
19
The fact that privilege was designed as an instrument that responded to
an economic need finds indirect confirmation in the difference in the
duration of one privilege and another. Although there is no absolute evidence
in this regard, it is certain that, in deciding the duration of the privilege,
the authorities above all took account of the need to maintain a certain
proportion with the scale of the investment made. It is known that, mostly
in the initial period of the diffusion of printing, a longer privilege
was usually granted to books that required a large investment (such as
dictionaries and illustrated books).20 Later on, when the method of granting
privileges and their duration had become standardised, this institution
was also used as an instrument for redistributing resources among members
of the guild. In Venice, for example, a rule of 1765 established that
"common books", those that were not privileged or books whose
privilege had expired, would be assigned to "needy printers"
as a form of "compensatory monopoly for losses suffered".21
Another consideration has to be made about the subjects of privileges.
From the beginning the custom was to grant privileges not just to printers
but also directly to the author(s) or editor(s) of the work. It would
be however mistaken to see in this practice an advance of "author's
right" in the sense of the current intellectual property system.
The author was regarded not as the individual responsible for creative
production, but as an individual with a specific interest (economic and
otherwise) that had to be safeguarded. The author was protected uniquely
owing to the expenses and troubles he had undertaken, and not because
the book was his "legitimate property". It is no surprise that,
in their requests to sovereigns, authors always emphasised the exceptional
investment (in terms of time, money and labours) that the work had caused.
According to John Feather, privileges granted directly to authors in pre-Revolutionary
England concerned books that "almost without exception […] were
learned works that had involved their authors in long periods of compilation,
and sometimes great expense".22 In the 1700's the author's privileges
granted in the kingdom of Savoy "concern a still restricted number
of works" made up of demanding works such as "dictionaries,
translations of the Latin and Greek Classics, maps, etc.".23 Sometimes
the privilege was granted for reasons of prestige or to emphasise the
particular value of a work. The celebrated papal privilege obtained by
Ludovico Ariosto in 1516 for the first Ferrara edition of his Orlando
furioso is a case in point. As Mark Rose comments, there were many other
episodes where "the actions of [the authorities] are best understood
in terms of "honour" and "reward" rather than "property".24
The conditions included in the privileges relate above all to economic
considerations. The commonest condition concerns the sale price of the
book which must not exceed a given sum, while on other occasions a general
condition was included that the book had to be sold justo pretio, "at
a fair price". In Venice, in 1554, the granting of the privilege
included an estimate that, among other things, had to establish the sale
price.25
Concerning the authorities which granted privileges, it can be said that
every acknowledged power could manage their granting and observance. We
find, thus, a plurality of "sources" that reflect the organisation
of powers in the States of the ancien régime. In France, alongside
royal patents, we find a series of privileges accorded by parliament,
by other sovereign courts (such as the Cour des Aides or the Grands Jours)
and provincial parliaments as well as ecclesiastical hierarchies (religious
orders, bishops) and academies (schools, universities).26 In Venice, before
the system was reformed in 1603, privileges were granted equally by the
Senato and by the Consiglio.27 The situation in Germany was clearly more
complex, and privileges were granted by a multiplicity of authorities,
ranging from the Emperor to the Reichsregiment, as well as princes, dukes,
and the Senates of different cities.28 To all these privileges, which
had validity over a more or less extensive territory, are to be added
papal privileges, which incorporated an implicit moral dissuasion or even
the explicit threat of excommunication of transgressors. Papal privileges,
and in a different sense imperial ones, could be regarded as almost "supranational"
acts on the grounds of their moral value which was universally recognised.29
We cannot conclude this brief reconstruction of the privilege system without
considering the market structure in which book privileges operated. We
have already recalled that only a few books were protected by privilege.
But there were also differences among the books that did receive protection,
and this depended on the type of privilege obtained. One can reasonably
suppose that beneath these differences there was a plurality of "circuits"
that were more or less connected with each other, and that each category
of book was exchanged within a specific circuit. We can above all hypothesise
a "vertical" difference. There were books whose diffusion was
predominantly or exclusively in local markets. Then there were books which
circulated within the boundaries of a national language (which did not
necessarily coincide with state boundaries).30 Finally, there were books
destined for a refined and polyglot readership: these were often written
in Latin and their market extended virtually over the whole civilised
world. It was only as regards the final group that it was worthwhile requesting
a papal or imperial privilege. Other books had less protection if any
at all. In the ambit of the "high" circuit, i.e. the international
market, there were as well unwritten rules and customs that provided good
protection against pirate editions. Febvre and Martin remark, with reference
to the international book trade in the 1500's and 1600's that "bookmakers
had no interest in competing against each other. In an epoch when every
large publisher had business with foreign counterparts, the ruin of one
would risk the ruin of many others. Every bookmaker, every city had its
own 'assortment' that commercial correctness and the interest of all involved,
would usually impede to imitate".31 As well as this "vertical"
difference we also discover a "horizontal" difference, or rather
a plurality of circuits that corresponded to different genres and purposes
of books. Thus, for religious books it could be useful to obtain an ecclesiastical
privilege. This could be granted not just by the papacy but also by the
bishop or even a religious order.32 Legal, medical and scientific texts
which generally circulated in the universities could receive privileges
directly from the academic authorities.
The book market in the privilege system thus seems like a group of circuits
operating independently of each other, each of which had its own rules
and purposes with no common denominator. Privilege is a method for establishing
the exchangeability of the book-commodity as a function of the market
in which this commodity was exchanged (i.e. bought and sold). A book's
exchange value, which the privilege creates with a free institutional
act, remains determined and defined not just within tempo-spatial limits,
but "moral" ones also. The book is not purely and simply "a
commodity": it is a commodity as well as serving the needs of a buying-selling
exchange. Where there is no economic interest, or where economic interest
has already been met, and thus where there are no longer buyer-seller
relationships, no exchange value needs to be ascribed to the book. A book
outside a buyer-seller relationship, and thus outside a commercial circuit,
no longer needs to be conceived as a commodity.33
III.
On one side the privilege system is an alternative method to that of the
intellectual property system for establishing the exchangeability of works
of the mind. On the other side it is a practice, or series of practices,
within which exchangeability is not extended indefinitely but is maintained
within certain limits. The questions we now have to raise are: what are
these limits? To what extent can a book be considered a commodity? And
how can one determine, within these limits, the figure of the author and
of authorship?
We will respond to these questions by following in the tracks of a writer
who, from the chronological point of view, is found on the borders of
the two "paradigms" that we have called privilege and the intellectual
property system. This thinker is Immanuel Kant.
In his Metaphysical Principles of the Science of Right, 1797, Kant attempts
to deduce the illegitimacy of counterfeiting books by starting with the
question "What is a book?"
A book is a writing which represents a discourse addressed by some one
to the public, through visible signs of speech. […] He who speaks
to the public in his own name is called the author (auctor); he who addresses
the writing to the public in the name of the author is the publisher.
[…] The publisher, again, speaks, by the aid of the printer as his
workman (operarius), yet not in his own name, for otherwise he would be
himself the author, but in the name of the author; and he is only entitled
to do so in virtue of a mandate (mandatum) given him to that effect by
the author.34
The book brings together a set of relationships. Firstly, between the
author and the public; then, between the author and the publisher and
between the publisher and the public; finally, there is a relationship
between the publisher and the printer. The first of these relationships
is one "of his words" - the author speaks to the public. The
second (author-publisher) is, on the other hand, a contract, and specifically
a contract based on a mandate. The third relationship (publisher-public)
is also a relationship "of his words" like the first, but in
this case the words are not those of the publisher. The publisher limits
his actions to administering, "conducting the negotiation between
the author and the public",35 and enjoying all the advantages that
he legitimately can from this negotiation. Among these advantages, although
Kant does not mention them specifically, is included the sale of the book.
The final relationship is between the publisher and the printer, and this
is a contract of work done.
Before proceeding, one thing is worth noting in Kant's formulation. These
relationships are not simply placed alongside each other at the same level.
There is a "prioritary" relationship which underlies and regulates
all the others, i.e. which gives rise to a series of "derived"
relationships. The principal relationship is that between the author and
the public. This takes the form of the relationship between the author
and the publisher and the publisher and the public, and this in turn gives
rise to the relationship between the publisher and the printer. This subdivision
of relationships is not random - each of the "derived" relationships
corresponds to a precise contractual figure.36
To settle these contractual figures, Kant relies explicitly on the tradition
of Roman law. As far as the institutions that regulate working relationships
among individuals are concerned, we find in Roman law a difference between
the contract of work done (locatio operarum) and the contract of attorney
or mandate (mandatum). Thus, there is a strict distinction between these
two contracts on one side and the contract of purchase and sale (emptio-venditio)
on the other.37 It is only the purchase-and-sale contract that contains
the price equivalent (pretium). In a contract for work done, given that
the thing (res) exchanged is not a piece of work (opus) but one's own
work (opera), the contract does not contain the payment of an equivalent
price but a straightforward wage (merces) for the work performed. On the
contrary, the mandate is a perfect contract in itself which is based on
the trust (fides) of the two counterparts, and thus has no need to conclude
with an act of payment. The contract may - but does not have - to be followed
by a grateful reward in the form of an honorarium. The main characteristics
of the honorarium compared to all other forms of payment (such as the
pretium and the merces) are as follows: 1. It is not obligatory; 2. There
is no a priori relationship of equivalence with the work provided by the
mandatary or the task entrusted by the mandator.38
What Kant argues in the passage quoted is that the author is not a performer
of work (including intellectual work) nor a seller (of his own manuscript).
The relationship between the author and the publisher is maintained within
the precise limits of the mandate, with all the results that derive from
this legal figure. One of these consequences is illustrated in the article
On the Unlawfulness of Counterfeiting Books, 1785:
[The publisher] possesses the manuscript only on the condition to use
it for the purpose of a deal of the author with the public; but this obligation
towards the public remains, though that towards the author has ceased
by his death. Here [the argument] is not built upon a right of the public
to the manuscript, but upon a right of the public to a deal with the author.
Should the publisher give out the author's work, after his death, mutilated
or falsified, or let the necessary number of copies for the demand be
wanting; the public would thus be entitled to force him to more justness
or to augment the publication, but otherwise to provide for this elsewhere.
All of which could not take place, were the publisher's right not deduced
from a deal that he transacts between the author and the public in the
name of the former.39
If, then, the book is founded on a deal between the author and the public,
what is the ultimate purpose and reason for this deal?
In Kant's view, the book has, as far as thought is concerned, a similar
function to that of money in the commercial world. As money is "the
universal means through which men exchange the products of their work
with each other",40 the book is the pre-eminent means for men to
communicate and exchange what they think. The peculiarity of the book,
its essential characteristic, is thus the fact that it is the "medium
for the exercise and circulation of thought".41 The similarity with
money stops here, however. The relationship between thought and its communication
is not something extrinsic like that between commodities and their circulation.
A commodity remains a commodity even when it lies unemployed in a warehouse,
while thought - unlike what is commonly assumed - cannot be thought in
the absence of communication. That's what Kant propounds in an essay of
1786 called What Does It Mean: to Orient Oneself in Thought?:
It
is often said that a superior power can deprive ourselves of the freedom
to speak or to write, but not of the freedom to think. But how much and
how correctly we would think, if we won't think so to say 'in common'
with others, to whom we communicate our thoughts and who communicate us
theirs? Thus one can really say that the power that removes men's freedom
to communicate their thoughts publicly, also deprives them of their freedom
to think, that is the only treasure left us in the midst of social impositions,
the only means which can still permit us to find remedies for the ills
of this condition.42
A power
that limits the freedom of communication also prejudices the possibility
itself of thought. It is frequently thought that thinking is a solitary
activity, a sort of individual performance that can remain confined to
the individual or may be shared with others at a later date. At most we
can imagine a "collective work", meaning that the thought may
result from the combined efforts of more individuals. What we cannot see,
is that thought is precisely the element that, so to say, "de-individualises"
the individual, bringing into play something greater than the individual
itself. Thinking puts man immediately in relationship with something other,
which is not merely the dimension of "other individuals". Kant
wants to draw our attention to the fact that thought is, in itself, "communication"
in a high sense. To be aware of this it is enough to consider what thinking
really means. In line with tradition, Kant understands thought as essentially
judging.43 Judgement is certainly an operation that involves each individual.
But precisely in judging, that is in connecting a "predicate"
with a "subject" in a proposition, every individual relies on
something other - in the matter in hand: to what regards which is accomplished
the connection. In Kantian terms, every judgement is based on "the
necessary unity" in view of which the judgement is carried out.44
In this sense, precisely in the individual act of judgement the individual
is already de-individualised - he is already beyond himself and heading
towards something other. The most immediate form of this "being-by-otherness"
is being with other human beings. This is why it is so necessary to have
one's own thoughts (judgements) tested by other thinking (judging) beings.
Denying or undervaluing the importance of this comparison is for Kant
a shifty form of absence of thought, a sort of egoism. In his Anthropology
from the Pragmatic Viewpoint he uses the term "logical egoism"
to distinguish this from the commoner form of "moral" one:
The logical egoist considers it superfluous to subject his own thought to another intellect, as if he had no need for this comparison (criterium veritatis externum). But it is so certain that we cannot give up this means to assure ourselves of the correctness of our own judgement, that this is perhaps the principal reason why learned people fight so hard for the freedom of the press. If this freedom is denied, we would thereby lose a very potent means for proving the correctness of our own judgements and we would be left to error.45
No form of
thought, including pure mathematics, can give up this means of testing
its own judgements.46 And because this means can be fruitfully deployed,
it is necessary that "the best means for the circulation of thought"
are left free. The freedom of the press is thus only a means for guaranteeing
a much more fundamental freedom, that is the freedom from error. Here
Kant is once again a faithful interpreter of tradition:47 humanity can
only be free in the truth, and the freedom of the press is only a formal
condition of the full and complete liberty of man.
It is not possible here, as would be necessary, to go deeper into the
Kantian idea of freedom. It will suffice to observe that, for Kant, freedom,
because it is a faculty that "belongs to the activity of all rational
beings endowed with a will",48 cannot be showed and demonstrated
on the ground of experience. All experience is possible only because we
are free. Consequently, "every being that cannot act except under
the idea of freedom is just for that reason in a practical point of view
really free".49 Thus freedom is the element in which each free experience
of man takes place. It is in this freedom that the basis of the relationship
between the author and the public is found, a relationship on which all
the other relationships remain subordinate, each of which has a precise
contractual shape.
IV.
In
Kantian thought, the author is not only the "owner" of the "work",
but is above all responsible for a discourse, that is a thought explicitly
offered to be shared with other human beings in order to weigh and test
together its own truth. In its turn, the "public", as beneficiary
of the author's discourse, is not simply a set of consumers of a good,
but is the ambit in which the judgements can be placed for testing, and
is thus the ambit in which the possibility of being in the truth is preserved.
Consistent with Kant's position are the following words of Vittorio Alfieri,
who writes in his clear-sighted treatise Il principe e le lettere [The
Prince and Letters], 1789: "Reading, as I intend it, means profoundly
thinking; thinking means hold on and hold on, it means to endure".50
The public is then a set of readers in the full sense of the word. Readers
are not merely "consumers of books" but thinking beings, that
is willing to endure and share the author's search for the truth. It is
in only in this willingness to endure that the ultimate justification
for the Kantian "right of the public to deal with the author"
finds itself.
On the basis of these considerations we can now turn to the question with
which we started: to what extent are writing practices influenced by the
legal systems and institutions that protect their activity? After what
we have seen, we can formulate the question in the following terms: Is
there a substantial difference in the author and public relationship in
the privilege and intellectual property systems?
Before attempting to answer this question, it is worthwhile briefly reviewing
the points made so far.
We started with a definition of the intellectual property system as a
way of establishing the exchangeability of ideas through the recognition
of a right of author's ownership. We then considered, as an alternative
method for establishing this exchangeability, the privilege system that
was used in European States until the 18th century. The main feature of
privilege is the fact that it regards exclusively economic relationships
in production and exchange, and has no significance outside these relationships.
As a result, the establishment of the exchangeability of "works of
the mind" is limited to the sphere of exchange only and does not
touch other ambits. In the privilege system the book is a commodity insofar
as it satisfies the needs of a buying-selling relationship or a cycle
of such relationships. The reference to Kant's thought here thus allows
for perceiving more clearly where these limits are: the purchase-and-sale
contract regulates only one kind of relationship to which the book gives
rise, that is the relationship that the publisher establishes with the
public by virtue of the contract of mandate that links the publisher to
the author. Neither the publisher-author relationship, nor the author-public
one can turn purely and simply into a "purchase-and-sale contract".
The transformation of the book-privilege into literary property (or, better,
the move from one paradigm to another), thus has a clear significance:
buying and selling becomes the determining form for each contract, including
the primary and original contract between the author and the public. This
does not mean, in general, that no other kind of relationship is possible,
but these other relationships will always be "deviant cases"
or "exceptional cases" seeing that they are not provided for
in the paradigm.51 What happens in the move from the privilege to the
intellectual property system is a real change of prospective, as a result
of which the principle of exchange on the basis of sales, which had previously
concerned only one - non-essential - aspect of the author-public relationship,
is now not only central to the relationship but its totality. Historically,
this change began in the 1750's and reached maturity about a century later.
To show this effect, we could collect some testimony. In the first half
of the 1800's, that is in a crucial period of the rise of the intellectual
property principles in national and supranational legislation, a wide
debate took place in the intellectual world. Lawyers, men of letters,
simple journalists, but above all economists, were asking about the foundations
of the legal protection of works of the mind and its meaning. Very different
positions emerged that reflect the diversity of interests, positions,
and ideologies.52 Below these differences, however, it is not difficult
to see common responses coming together.
Among the founding fathers of classical economics, one of the first to
concern himself in detail with questions of intellectual property was
John Stuart Mill. In his Principles of Political Economy, 1848, we read:
It is generally admitted that the present Patent Laws need much improvement; but in this case, as well as in the closely analogous one of Copyright, it would be a gross immorality in the law to set everybody free to use a person's work without his consent, and without giving him an equivalent.53
Patent laws
and copyright are "analogous cases" but distinct ones that belong
to the family of intellectual property. The important point, however,
is that no result of human work can be used without asking the permission
of the person who has produced it, and without paying the latter an equivalent.
To go against this principle, according to Mill, is not only unfair but
immoral. As we saw earlier, in the traditional legal conception the payment
of an equivalent is precisely that which cannot take place in the case
of a "work of the mind". To this latter belongs a honorarium,
i.e. a reward that is expressly separate from other kinds of payment (such
as the merces or the pretium) on the grounds that it cannot enclose any
"relationship of equivalence between work and payment".54 What
Mill implicitly assumes, is that the relationship between "everybody"
and the "person's work" is wholly resolved through a buyer-seller
relationship.
This largely implicit assumption in John Stuart Mill becomes explicit
in the work of a contemporary of his, the Italian economist Gerolamo Boccardo.
From the point of view of the history of economic thought, Boccardo is
not at all a "giant" like his English colleague. His main work,
the Dictionary of political economy and commerce, was published in four
volumes between 1857 and 1861, and is regarded by historians above all
as a great explanatory work, a summa in which are brought together various
themes of the liberal economic culture of the time. Just for this reason,
however, it is interesting for us to read what he says about "Artistic,
industrial and literary property".
The author is a workman in science, civilization, progress, to whom society
pays a salary, just as the factory-owner pays a salary to his dependants.
[…] So-called 'literary property' is simply a wage for work, the
price of a work done, the payment for a duty, in the form of a privilege
that the civil law grants to the author in recognition of his work and
service to the social community.55
What is implicit
in Mill's text is stated clearly here. The relationship between "social
community" and the author - a relationship that is regulated by literary
property - is just a particular case of an economic relationship between
a giver and a supplier of work. The author is just a particular type of
"workman", and society treats the author like a factory-owner
treats his employees, by paying a salary for the work performed. The different
nature of the relationships, which gave rise in the traditional concept
to quite distinct contractual figures, is here flattened to one level
- the "wage for work", "the price of a work done",
"payment for duty". These latter are at last equivalent formulae
which are incapable of any substantial distinction. The author provides
a "service" and society pays a price for it.
We find surprisingly similar words to those of Boccardo in the work of
a very different writer. This is the socialist economist Pierre-Joseph
Proudhon, the famous author of the treatise What is property? In 1858
he published a pamphlet against the legal project that was intended to
make literary property perpetual in France. He writes:
The author is a trader, isn't that the truth? And with whom does he trade? Neither with you, nor with me, nor with someone in particular; but he trades in general, with the public. […] Between the author and society there is a tacit agreement, by virtue of which the author will be paid a fee by means for a temporary privilege of sale. If there is a great demand for the work the author will earn a great deal. If the work is refused he will earn nothing. Let's allow him an agreement that lasts for 30, 40, or 60 years to cover the costs. I say that this contract is perfectly regular and fair, and that it satisfies all the needs, safeguards the rights, respects the principles, and responds to all objections.56
Although
coming from different traditions, the two economists arrive at the same
formulations. The contract on the basis of which society pays the author
a straightforward fee is a "perfectly regular and fair" contract.
Proudhon does not and cannot find any objection that could demonstrate
the opposite.
There is therefore an essential difference between the writing practices
in privilege- and intellectual property-system: while in the first system
the relationship author-public can be conceived as a free liaison between
thinking beings - a liaison from which some reciprocal obligations originate,
like the author's responsibility as regards to the truth, and the public's
obligation to truthfully read -, in the second system, this relationship
must, in some way, be reduced to an "exchange" in which the
author's credits are settled by requiting an equivalent. As a matter of
fact, the "purchase-and-sale contract" is concluded by a payment.
Can this contract really fulfil all the needs? Let's hear, in conclusion,
the words of an American writer. For him, the author is not a "workman"
in society's service nor a "trader". He's rather a "beggar"
- and not in the sense that he's begging for cash:57
Writers,
in a way, are like beggars. They are continually begging for a chance
to give of their great gifts - which is the most heart-rending begging
of all and a disgrace to any civilised community in which it happens.
Which is to say, almost the entire civilised world.58
Notes
1 See generally: M. Woodmansee, "The Genius and the Copyright: Economic
and Legal Conditions of the Emergence of the 'Author'", Eighteenth
Century Studies, 17, 1984 and Id. The Author, Art and the Market. Rereading
the History of Aesthetics, Columbia University Press, New York 1994; C.
Hesse "Enlightenment Epistemology and the Laws of Authorship in Revolutionary
France, 1777-1793", Representations, n. 30, 1990; M. Rose Authors
and Owners. The Invention of Copyright, Harvard University Press, Cambridge
MA- London 1993; R. Chartier, "Figures of the Author" in: B.
Sherman and A. Strowel (eds.) Of Authors and Origins: Essays in Copyright
Laws, Clarendon Press, Oxford 1994; M. Woodmansee and P. Jaszi (eds.)
The Construction of Authorship: Textual Appropriation in Law and Literature,
Duke University Press, Durham 1994; for the italian case, see: M. Borghi,
La manifattura del pensiero. Diritti d'autore e mercato delle lettere
in Italia (1801-1865), Franco Angeli, Milano 2003.
2 M. Woodmansee "On the Author Effect: Recovering Collectivity",
in M. Woodmansee and P. Jaszi (eds.) The Construction of Authorship, supra
note 1, at 26.
3 Th. Kuhn The Structure of Scientific Revolutions, Chicago 1962.
4 In this context we leave out of consideration all the differences, some
of them very relevant, that take place in the various juridical traditions.
Specifically, we shall distinguish between the Anglo-American copyright
system and the European-continental system of author's rights (cf. W.
Fisher Theories of intellectual property, in S. Munzer (ed.) New Essays
in the Legal and Political Theory of Property, Cambridge University Press,
Cambridge MA 2000).
5 "While pre-modern law utilised the language, concepts and questions
of classical jurisprudence, modern intellectual property law employed
the resources of political economy and utilitarianism" (B. Sherman
and L. Bently The Making of Modern Intellectual Property Law, Cambridge
University Press, Cambridge UK 1999, at 4). By "pre-modern [intellectual
property] law", Bently and Sherman refer to the UK legislation between
1760 and 1850.
6 The term was probably introduced by Jean Baptiste Say (1767-1832). Other
authors, such as Adam Smith (1723-1790), define the ambit of the fine
arts and of thought as "non-productive work'" while Gian Maria
Ortes (1713-1790) speaks of "non economic occupations" and the
Physiocratics of "sterile industries". In the first half of
the 1800's economic theory tried in various ways to extend economic laws
to these areas as well (cf. M. Borghi La manifattura del pensiero. Diritti
d'autore e mercato delle lettere in Italia (1801-1865), Franco Angeli,
Milano 2003, at 55-99).
7 L. Walras, De la propriété intellectuelle, in "Gazette
de Lausanne", 10, 11, 12 June 1890.
8 Ibidem, at 58.
9 This principle had already been formulated some years earlier by Antonio
Scialoja in his book on economics (cf. A. Scialoja Principii della economia
sociale esposti in ordine ideologico, Torino, 1846, at 22).
10 The term "fiction" is used here in a strict technical sense,
not in a "moral" one (see generally the theory of "fictitious
commodities" in: K. Polanyi The Great Transformation, New York 1944).
11 Quoted in J. Boncompain La Révolution des auteurs. Naissance
de la propriété intellectuelle (1773-1815), Fayard, Paris
2001, at 16 (my italics). It should be remembered that author's rights
are now included in the Universal Declaration of Human Rights of 1948.
12 The most significant dates in this development are 1883 and 1886, where
internationals agreements respectively on patents and on copyright were
reached in the "Great Conventions" of Paris and Berne, which
sanction the bifurcation of the intellectual property rights into two
distinct branches (cf. J.H. Reichmann Legal Hybrids between the Patent
and Copyright Paradigm, "Columbia Law Review", n. 94, 1994).
13 The treatise debates openly against the indiscriminate use of the language
of 'creation' to define the work of the artist. "Do you want to know
what the artist really does? I say, that he invents […]. I ask you
to use this word instead of that harmful expression 'to create'".
(A. Manzoni Dell'invenzione. Dialogo, in Tutte le opere, a cura di A.
Chiari e F. Ghisalberti, vol. III, Mondadori, Milano 1863, at 694).
14 Ludwig Gieseke, observing the use of the Latin term invenire (germ.
erfinden) in German privileges in the 1600's, writes that "the concept
of invention includes an ambit of indefinite activity that is extended
from the mere construction of something to the creation of genius"
(L. Gieseke Die geschichtliche Entwicklung des deutschen Urheberrechts,
Verlag Otto Schwartz, Göttingen, 1957, at 37). Speaking of an "indefinite
ambit", Gieseke retrospectively applies to the privilege system a
distinction - between "invention" and "creation" -
that belongs only to the intellectual property-system.
15 Commenting on one of the first French privileges, granted by Louis
XII to the writer Eloi d'Amerval in 1508, Elizabeth Armstrong says: "The
economic considerations which Eloi had put forward were to remain uppermost
in most request for privileges, whether by authors or publishers."
(E. Armstrong Before Copyright. The French Book-Privilege System 1498-1526,
Cambridge University Press, Cambridge UK 1990, at 79, 84). She writes
later: "Publishers who sought privilege naturally tended to put forward
economic arguments in support of their request […] Sometimes however
the difficulty and cost of acquiring the manuscript is particularly stressed."
(Ibid., at 84). The high costs of production (for paper, characters, for
the purchase of the manuscript, etc.) were frequently mentioned in Venetian
privileges (cf. R. Fulin Documenti per servire alla storia della tipografia
veneziana, "Archivio veneto", XXIII, 1882).
16 E. Armstrong Before Copyright, supra note 16, at 78.
17 M. Infelise L'editoria veneziana nel 700, Franco Angeli, Milano 1991,
at 289.
18 M. Rose Authors and Owners. The Invention of Copyright, Harvard University
Press, Cambridge MA - London 1993, at 11.
19 Lodovica Braida quotes the evidence of Giuseppe Vernazza, the author
in 1812 of a history of 18th century publishing in Turin (L. Braida Il
commercio delle idee. Editoria e circolazione del libro nella Torino del
Settecento, Olschki, Firenze 1995, at 336-7). The evidence is confirmed
by the collections of Savoy privileges in the 1700's (L. C. Ubertazzi
I Savoia e gli autori, Giuffré, Milano 2000, at 131 sg.)
20 The cases revealed by Elizabeth Armsrong confirm this hypothesis: "On
the available evidence, the choice of books granted the longer duration
shows signs of being rational rather than capricious" (E. Armstrong
Before Copyright, supra note 16, at 122).
21 G. B. Salvioni, L'arte della stampa nel Veneto. La proprietà
letteraria, "Giornale degli economisti di Padova", IV, 1877,
at 261.
22 J. Feather From Rights in Copies to Copyright: The Recognition of Author's
Rights in English Law and Practice in the Sixteenth and Seventeenth Century,
in M. Woodmansee and P. Jaszi (eds.) The Construction of Authorship, supra
note 1, at 193.
23 L. C. Ubertazzi I Savoia e gli autori, supra note 20, at 19. "The
literary privileges of the 18th century in Savoy are still very similar
to booksellers' mercantile privileges" (ibidem, at 20).
24 M. Rose Authors and Owners, supra, note 19, at 17. Later we shall see
why the honorarium is the suitable method for remunerating the author.
25 G. B. Salvioni L'arte della stampa nel Veneto, supra note 22, at 259.
The provision was confirmed in the law on printing of 1603. In the judgement
in the case Pezzana e Consorti (1781) concerning the perpetuity of privileges,
the court wrote that "the privilege gives the publisher the necessary
security of capital invested in view of the profit" (ibidem, at 264).
26 E. Armstrong Before Copyright, supra note 16, at 21-62.
27 R. Fulin Documenti, supra note 16, at 93.
28 L. Gieseke Die geschichtiliche Entwicklung, supra note 15, at 24-37.
29 This refers, clearly, to Catholic and imperial "universality"
which remained more or less in vigour until the end of the 1700's.
30 This no-coincidence
was for instance the case of Italy until 1861 and of Germany until 1871.
31 L. Febvre and H.-J. Martin L'apparition du livre, Ed. Albin Michel,
Paris 1958, at 308.
32 In Germany the Jesuits were authorised by the emperor to give special
privileges (cf. N. Stolfi La proprietà intellettuale, vol. I, Utet,
Torino 1915, at 62).
33 The general extension of privileges in the course of the 1800's is
an important sign of the collapse of the privilege system. In 1780, the
Venetian government established the perpetuity of privileges in order
to deal with the grave publishing crisis in the area (G. B. Salvioni L'arte
della stampa nel Veneto, supra note 22, at 210-12). In this way the exchange
value of the book (and thus its status as commodity) was extended infinitely,
beyond its natural economic cycle. This provision looks similar to that
of a government that tries to cope with a stagnant housing market by declaring
a permanent opening (24/7) of the Stock Exchange…
34 I. Kant Metaphysik der Sitten, in Kants gesammelte Schriften, ed. Königl.
Preuß. Akademie der Wissenschaft, De Gruyter, Berlin-Leipzig 1907
[hereinafter KGS], Bd. 6, at 404.
35 I. Kant Von der Unrechtmäßigkeit der Büchernachdrucks,
KGS, Bd. 7.
36 One can certainly imagine other derived relationships, adding further
subjects (the distributor, the bookseller, the translator, etc.). The
substance, however, would remain the same. Every other relationship would
become part of one of the three mentioned contractual figures.
37 Cf. A. Berger Encyclopedic Dictionary of Roman Law, Philadelphia 1953.
38 One can read, in the J.-H. Zedler's Universal-Lexicon (1735): "Honorarium
means acknowledgement or reward, recognition, favor, stipend; it is not
in proportion to or equivalent to the services performed; differs from
pay or wages, which are specifically determined by contracting parties
and which express a relationship of equivalence between work and payment"
(quoted in: M. Woodmansee The Author, Art and the Market, supra note 1,
at 42).
39 I. Kant Von der Unrechtmäßigkeit der Büchernachdrucks,
KGS, Bd. 7.
40 I. Kant Metaphysik der Sitten, KGS, Bd. 6, at 401.
41 Ibidem, at 400.
42 I. Kant Was heißt, sich im Denken orientieren?, KGS, Bd. 7, at
144-5.
43 Cf. I. Kant Kritik der reinen Vernunft: "we can reduce all acts
of the understanding to judgements, so that understanding may be represented
as the faculty of judging. For it is, according to what has been said
above, a faculty of thought." (A 69, B 84). Judging means connecting
a predicate to a subject in the form "S is P". The truth of
thought corresponds to the correctness of the judgement. (On these questions,
which cannot be explored more deeply here, see generally M. Heidegger
Kant und das Problem der Metaphysik, 1929, hrsg. Fr.-W. von Herrmann,
Gesamtausgabe, Bd. 3, Klostermann, Frankfurt a./M. 1991 and Id. Einleitung
in die Philosophie, 1928/29, hrsg. O. Saame und I. Saame-Speidel, Gesamtausgabe,
Bd. 27, Klostermann, Frankfurt a./M. 1996, at 267 fw.).
44 The concept of such unity is the "category". The ways of
"connecting", i.e. of unifying, are deduced from the traditional
table of judgements (Kritik der reinen Vernunft, A 65, B 80 fw.).
45 I. Kant Anthropologie in pragmatischer Hinsicht, KGS, Bd. 7. at 128-9.
46 "If there was an initial lack of perception of the fact that the
judgement of the land-surveyor regularly agreed with the judgement of
all those working diligently and carefully in the same area, mathematics
itself would not be able to be free from the fear of falling into error"
(ibidem, at 129).
47 Cf. "the truth shall make you free" (John 7:32).
48 I. Kant Grundlegung der Metaphysik der Sitten, KGS, Bd. 4.
49 Ibidem.
50 V. Alfieri Del principe e delle lettere, a cura di E. Falcomer, Rizzoli,
Milano 1986 at 212.
51 See J.H.
Reichmann Legal Hybrids, supra note 13.
52 See generally: F. Machlup and E. Penrose "The Patent Controversy
in the Nineteenth Century", Journal of Economic History, 1, 1950;
P. Drahos A Philosophy of Intellectual Property Law, Dartmouth, Aldershot
1996; B. Sherman and L. Bently The Making of Modern Intellectual Property
Law, supra note 6, at 101 fw..; M. Borghi La manifattura del pensiero,
supra note 1, at 55-99.
53 J. S. Mill Principles of Political Economy (1848), Book V, chap. X.
54 M. Woodmansee The Author, Art and the Market, supra note 1, at 42 (see
also supra note 39).
55 G. Boccardo Dizionario della economia sociale e del commercio, vol.
IV, Torino 1861.
56 P.-J. Proudhon Les majorats littéraires. Examen d'un projet
de loi, in Oeuvres complètes, tome XVI, Paris 1868, at 24.
57 See supra the Miller's quotation in exergue.
58 H. Miller Stand Still Like the Hummingbird, New York 1962, at 75.