The Public Domain Part 4

I demand whether, if another act for printing should be made, it be not reasonable that n.o.body should have any peculiar right in any book which has been in print fifty years, but any one as well as another might have liberty to print it: for by such t.i.tles as these, which lie dormant, and hinder others, many good books come quite to be lost.40 45

This sounds like a strongly utilitarian argument, rather than one based on labor and natural right. Of course, we are not bound by what Locke or Jefferson thought. Still it is striking to see the turn to a utilitarian conception from both of them.

46

The Lockean tradition is not the only one, of course. Others believe that the property right stems from the unique personality of each individual--the configurations of your individual genius made manifest in the lines of your sonnet.

(Some limit the natural right to literary and expressive work; can a mousetrap or a drug molecule express the riddle and wonder of the human spirit?) Whatever their moral basis or their ambit, the common ground between these positions is the belief in a rationale for intellectual property rights beyond the utilitarian concerns of Jefferson or Macaulay.

47

The norms embodied in the moral rights or natural rights tradition are deeply attractive--at least to me. Many of us feel a special connection to our expressive creations--even the humble ones such as a term paper or a birthday poem. It is one of the reasons that the central moral rights in the French droits d'auteur, or author's rights, tradition resonate so strongly with us. The ent.i.tlement of an author to be correctly attributed, to have some control over the integrity of his work, seems important regardless of its utilitarian functions.1 48

Yet even as we find this claim attractive, we become aware of the need to find limiting principles to it. It gives us pause to think that Margaret Mitch.e.l.l or her heirs could forbid someone parodying her work. Are there no free-speech limitations? When other forms of authors.h.i.+p, such as computer programs, are brought into copyright's domain, does the power of the moral right decrease, while the need to limit its scope intensifies?

49

Then there is the question of length. How long is a natural right in expression or invention supposed to last? It seems absurd to imagine that Shakespeare's or Mozart's heirs, or those who had bought their copyrights, would still be controlling the performance, reproduction, and interpretation of their works hundreds of years after their death. If the rights are truly formed for a nonutilitarian purpose, after all, why should they expire? The person who first acquires property rights in land by work or conquest pa.s.ses those rights down to heirs and buyers with the chain of transmission reaching to the present day.

Should copyright follow suit? Even in France, the home of the strongest form of the droits d'auteur and of the "moral rights"

tradition, the answer to this question was in the negative.

50

We owe a large part of the literary moral rights tradition to the immediate aftermath of the French Revolution. In France before the Revolution, as in England before the Statute of Anne, the first true copyright legislation, the regulation of publis.h.i.+ng was through a set of "privileges" given to printers, not rights given to authors. Publishers would have a guild- enforced monopoly over certain t.i.tles. Their right was against competing publishers printing the list of t.i.tles over which they had the privilege. The Revolution abolished these privileges and, at first, put nothing in their place. On the other hand, as Carla Hesse's fascinating work reveals, there was intermittent interference by the Prefecture of Police with those who copied most flagrantly. One such publisher was sternly instructed by the police in these terms: 51

[A]ccording to the Declaration of the Rights of Man, liberty means only the freedom to do what does not harm others; and that it harms others to appropriate the work of an author, because it is an infringement of the sacred right of property; and that such an enterprise, if it were to remain unpunished, would deprive citizens of the instruction they await from celebrated authors like M. Bernardin de St. Pierre, because no author would want to consecrate his labors to the instruction of his age if piracy were ever authorized.41 52

Note the interesting mixture of the language of the "sacred rights of property" and the strong utilitarian justification which cites effects on future literary production and the "instruction" of citizens.

53

More expansive conceptions of the rights of authors and, particularly, of publishers were also offered. Even before the Revolution, publishers had been making the arguments that their privileges were a form of property rights and had the very good sense to hire the young Diderot to make those arguments. Hesse quotes his words: 54

What form of wealth could belong to a man, if not a work of the mind, . . . if not his own thoughts, . . . the most precious part of himself, that will never perish, that will immortalize him? What comparison could there be between a man, the very substance of man, his soul, and a field, a tree, a vine, that nature has offered in the beginning equally to all, and that an individual has only appropriated through cultivating it?42 55

Diderot's theme is that authors' rights should actually be stronger than other property rights for two reasons. First, they relate to the very essence of the person, the most "precious part of himself." Second, they are the only property rights over something that has been added to the existing store of wealth rather than taken from it. Authorial property, unlike property in land, adds to the common store rather than detracting from it. Locke believed that a just a.s.sertion of property rights must leave "enough and as good" for others in the society. What could better satisfy this condition than a property right over a novel that did not exist before I wrote it? One hundred years later Victor Hugo echoed the same thoughts in a speech to the Conseil d'Etat and pointed out at the same time that literary property rights could potentially "reconcile" troublesome authors to society and state.

56

You feel the importance and necessity of defending property today. Well, begin by recognising the first and most sacred of all properties, the one which is neither a transmission nor an acquisition but a creation, namely literary property . . .

reconcile the artists with society by means of property.43 57

Diderot wanted perpetual copyrights for authors and, agreeably to his employers, a correspondingly perpetual printing privilege. If the author's heirs could not be traced, the copyright would devolve to the current publisher.

58

But as Hesse points out, there was another view of literary property--a much more skeptical one put forward best by Condorcet. This view is also an influential part of the heritage of the droits d'auteur, even if it is downplayed in its contemporary rhetoric. Condorcet began by framing the question of literary property as one of political liberty. "Does a man have the right to forbid another man to write the same words that he himself wrote first? That is the question to resolve."44 Like Jefferson, Condorcet is utterly unconvinced that property rights in a book can be compared to those in a field or a piece of furniture which can be occupied or used by only one man. The type of property is "based on the nature of the thing." He concluded, again in language strikingly similar to Jefferson's and Macaulay's, that literary property was not a real property right but a privilege, and one which must be a.s.sessed on a utilitarian basis in terms of its contribution to enlightenment.45 59

Any privilege therefore imposes a hindrance on freedom, placing a restriction on the rights of other citizens; As such it is not only harmful to the rights of others who want to copy, but the rights of all those who want copies, and that which increases the price is an injustice. Does the public interest require that men make this sacrifice? That is the question that must be considered; In other words, are [literary] privileges needed and useful or harmful to the progress of enlightenment?46 60

Condorcet's conclusion was that they were not necessary and that they could be harmful. "The books that most furthered the progress of enlightenment, the Encyclopedie, the works of Montesquieu, Voltaire, Rousseau, have not enjoyed the benefits of a privilege." Instead he seemed to favor a combination of "subscriptions" to authors with a trademark-like protection which allowed an author to identify a particular edition of his work as the genuine one, but which also allowed competing editions to circulate freely. In such a market, he believed that the price of the competing editions would fall to "natural"

levels--today we would call it marginal cost--but the original author would still be able to charge a modest premium for the edition he authorized or certified because readers would prefer it as both more accurate and more authentic. One possible a.n.a.logy is to the history of the fas.h.i.+on industry in the United States. It operates largely without design protection but relies heavily on the trademarks accorded to favored designers and brands. There are "knockoffs" of Armani or Balenciaga, but the wealthy still pay an enormous premium for the real thing.

61

Condorcet also insisted that whatever protection was accorded to literary works must not extend to the ideas within them. It is the truths within books that make them "useful"--a word that does not have the same luminance and importance for us today as it did for the philosophers of the Enlightenment or the French Revolution. He argued that any privilege given the author could not extend to "preventing another man from exhibiting the same truths, in perfectly the same order, from the same evidence" or from extending those arguments and developing their consequences. In a line that Hesse rightly highlights, he declares that any privileges do not extend over facts or ideas.

"Ce n'est pas pour les choses, les idees; c'est pour les mots, pour le nom de l'auteur."

62

In sum, Condorcet favors a limited privilege, circ.u.mscribed by an inquiry into its effects in promoting progress and enlightenment. The privilege only applies to expression and to "the author's name," rather than to facts and ideas. This is very much within the tradition of Jefferson and Macaulay.

63

Hesse argues, correctly I think, that two warring ideas shaped--or are at least useful ways of understanding--the development of the droits d'auteur tradition. On one side were Diderot and the publishers promoting an expansive and perpetual natural authorial right, which nevertheless was supposed to vest suspiciously easily in publishers. On the other was Condorcet, looking skeptically at authorial privileges as merely one type of state interference with free markets and the free circulation of books and ideas. In place of Diderot's perpetual natural right, Condorcet sketched out a regime that encourages production and distribution by granting the minimum rights necessary for progress.

64

Different as they are, these two sides share a common ground.

They both focus, though for different reasons, on "expression"--the imprimatur of the author's unique human spirit on the ideas and facts that he or she transmits. It is this "original expression" that modern copyright and the modern droits d'auteur actually cover. In today's copyright law, the facts and ideas in an author's work proceed immediately into the public domain. In other work, I have argued that by confining the property right tightly to the "original expression" stemming from the unique personality of an individual author the law seems to accomplish a number of things simultaneously. It provides 65

a conceptual basis for partial, limited property rights, without completely collapsing the notion of property into the idea of a temporary, limited, utilitarian state grant, revocable at will. [At the same time it offers] a moral and philosophical justification for fencing in the commons, giving the author property in something built from the resources of the public domain--language, culture, genre, scientific community, or what have you. If one makes originality of spirit the a.s.sumed feature of authors.h.i.+p and the touchstone for property rights, one can see the author as creating something entirely new--not recombining the resources of the commons.47 66

That is an account of the romantic theory of authors.h.i.+p in the context of contemporary Anglo-American copyright law. But when one looks at the history of the French droits d'auteur tradition, it is striking how well those words describe that system as well. When the French legislature finally produced a law of authors' rights it turned out, in Hesse's words, to reflect "an epistemologically impure and unstable legal synthesis that combined an instrumentalist notion of the public good with a theory of authors.h.i.+p based on natural rights."

67

Although it drew on a Diderotist rhetoric of the sanct.i.ty of individual creativity as an inviolable right, it did not rigorously respect the conclusions Diderot drew from this position. In contrast to the privilege d'auteur of 1777, the law did not recognize the author's claim beyond his lifetime but consecrated the notion, advanced first by Pierre Manuel to defend his edition of Mirabeau, that the only true heir to an author's work was the nation as a whole. This notion of a public domain, of democratic access to a common cultural inheritance on which no particular claim could be made, bore the traces not of Diderot, but of Condorcet's faith that truths were given in nature and, although mediated through individual minds, belonged ultimately to all. Progress in human understanding depended not on private knowledge claims, but on free and equal access to enlightenment. An author's property rights were conceived as recompense for his service as an agent of enlightenment through publication of his ideas. The law of 1793 accomplished this task of synthesis through political negotiation rather than philosophical reasoning--that is, by refas.h.i.+oning the political ident.i.ty of the author in the first few years of the Revolution from a privileged creature of the absolutist police state into a servant of public enlightenment.48 68

Hesse argues that this instability would continue through the revolutionary period. I agree; indeed I would argue that it does so to the present day. Why? The answer is simple. The moral rights view simply proved too much. Without a limiting principle--of time, or scope, or effect--it seemed to presage a perpetual and expansive control of expressive creations, and perhaps of inventions. Our intuition that this is a bad idea comes from our intuitive understanding that "Poetry can only be made out of other poems; novels out of other novels. All of this was much clearer before the a.s.similation of literature to private enterprise."49 69

This is the flip side of the arguments that Diderot and later Hugo put forward. Perhaps the romantic author does not create out of thin air. Perhaps he or she is deeply embedded in a literary, musical, cultural, or scientific tradition that would not flourish if treated as a set of permanently walled private plots. Even within the tradition, we see a recognition that the continuing progress of enlightenment and the ssacred genius of authors might both require a certain level of freedom in knowledge inputs and a certain level of control over knowledge outputs. We see also the recognition that these two requirements are in fundamental tension. When it comes to reconciling that tension we must turn in part to utilitarian effects. In short, we should pay attention to Jefferson and Macaulay and Condorcet, not just because their thoughts shaped the legal and philosophical traditions in which we now work--though that is particularly true in the case of the United States--but because they were right, or at least more right than the alternative.

70

Of course, we could build a culture around a notion of natural, absolute, and permanent rights to invention and expression. It is not a world many of us would want to live in. There are exceptions of course. In a recent New York Times op-ed, Mark Helprin--author of Winter's Tale--argued that intellectual property should become perpetual.50 After all, rights in real estate or personal property do not expire--though their owners might. Why is it that copyrights should "only" last for a lifetime plus seventy additional years, or patents for a mere twenty? Mr. Helprin expresses respect for the genius of the framers, but is unmoved by their firm command that rights be granted only for "limited times." He concludes that it was a misunderstanding. Jefferson did not realize that while ideas cannot be owned, their expression can. What's more, the framers were misled by their rustic times. "No one except perhaps Hamilton or Franklin might have imagined that services and intellectual property would become primary fields of endeavor and the chief engines of the economy. Now they are, and it is no more rational to deny them equal status than it would have been to confiscate farms, ropewalks and other forms of property in the 18th century." Poor Jefferson. How lucky we are to have Mr.

Helprin to remedy the consequences of his lack of vision.

71

Or perhaps not. Think of the way that Jefferson traced the origins of the mechanical arts used in the elevators and hopper- boys all the way back to ancient Persia. (In Mr. Helprin's utopia, presumably, a royalty stream would run to Cyrus the Great's engineers.) Jefferson's point was that for the process of invention to work, we need to confine narrowly the time and scope of the state-provided monopoly, otherwise further inventions would become impossible. Each process or part of a new invention would risk infringing a myriad of prior patents on its subcomponents. Innovation would strangle in a thicket of conflicting monopolies with their roots vanis.h.i.+ng back in time.

Presumably the t.i.tle of Mr. Helprin's excellent novel would require clearance from Shakespeare's heirs.

72

Of course, one could construct a more modest Lockean idea of intellectual property51 --building on the notion of "enough and as good" left over for others and drawing the limits tightly enough to avoid the worst of Mr. Helprin's excesses. But as one attempts to do this systematically, the power of the Jeffersonian vision becomes all the more apparent--at least as a starting place.

73

The Jefferson Warning will play an important role in this book.

But my arguments here have implications far beyond Jefferson's time, country, or const.i.tutional tradition. In the last a.n.a.lysis, I hope to convince you of the importance of the Jefferson Warning or the views of Macaulay not because they are famous authorities and revered thinkers or because they framed const.i.tutions or debated legislation. I wish to convince you that their views are important because they encapsulate neatly an important series of truths about intellectual property. We should listen to the Jefferson Warning not because it is prestigious but because of its insight. As the Diderot-Condorcet debates point out, the questions on which Jefferson and Macaulay focused do not disappear merely because one embraces a philosophy of moral rights--if anything, they become more pressing, particularly when one comes to define the limits of intellectual property in scope and time. I ask that those readers who remain leery of the Jeffersonian focus concentrate on that last issue. In an era when we have been expanding intellectual property rights relentlessly, it is a crucial one.

If the Jefferson Warning produces in my unconvinced reader even a slight queasiness about the likely effects of such a process of expansion, it will have done its job--though in fact the tradition it represented was much richer than a simple utilitarian series of cautions.

74

A TRADITION OF SKEPTICAL MINIMALISM 75

Eighteenth- and nineteenth-century intellectual property debates went beyond Macaulay's antimonopolist focus on price, access, quality, and control of the nation's literary heritage. While Macaulay is the best-remembered English skeptic from the 1840s, there were other, more radical skeptics who saw copyright primarily as a "tax on literacy" or a "tax on knowledge,"

identical in its effects to the newspaper stamp taxes.52 This was a time when ma.s.s literacy and ma.s.s education were the hotly debated corollaries to the enlargement of the franchise. The radical reformers looked with hostility on anything that seemed likely to raise the cost of reading and thus continue to restrict political and social debate to the wealthier cla.s.ses.

Macaulay worried about a world in which "a copy of Clarissa would . . . [be] as rare as an Aldus or a Caxton."53 His more radical colleagues saw copyright--to use our ugly jargon rather than theirs--as one of the many ways in which state communications policy is set and the communicative landscape tilted to favor the rich and powerful.54 Macaulay worried about the effects of monopoly on literature and culture. All of them worried about the effects of copyright on democracy, on speech, on education. In the world of the Internet, these skeptics too have their contemporary equivalents.

76

Patent law also attracted its share of attacks in the mid- nineteenth century. A fusillade of criticism, often delivered by economists and cast in the language of free trade, portrayed the patent system as actively harmful.

77

At the annual meeting of the Kongress deutscher Volkswirthe held in Dresden, September 1863, the following resolution was adopted "by an overwhelming majority": "Considering that patents hinder rather than further the progress of invention; that they hamper the prompt general utilization of useful inventions; that on balance they cause more harm than benefit to the inventors themselves and, thus, are a highly deceptive form of compensation; the Congress of German Economists resolves: that patents of invention are injurious to common welfare."55 78