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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.
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