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Copyright law and genius in France 1793. A843 Ex 4.3.1

Tuesday, 3 Oct 2017, 08:27
Visible to anyone in the world- Edited by Steve Bamlett, Tuesday, 3 Oct 2017, 08:33

The task

Consider the following extract from Lakanal’s report on the French copyright law of 1793 and try to identify the central concepts he uses to argue for special rights for authors:

Of all properties, the most incontestable, the one whose increase is in no way injurious to Republican equality and which gives no offence to liberty, is undeniably the property of works of genius; it is if anything surprising that it should have proved necessary to recognize this property and to secure its free exercise by a positive law, and that a great Revolution like ours should have been required to return us, in this as in so many other matters, to the simplest elements of common justice.

Genius fashions in silence a work which pushes back the boundaries of human knowledge: instantly, literary pirates seize it, and the author must pass into immortality only through the horrors of poverty.

Ah! What of his children …? Citizens, the lineage of the great Corneille sputtered out in indigence!

Since printing is the only means whereby the author may make useful exercise of his property, the fact of being printed alone cannot make an author’s works public property, at least not in the way that the literary buccaneers understand; for if it were so, it follows that the author would be unable to make use of his property without losing it in the same moment.

What a cruel fate for a man of genius, who has dedicated his waking hours to the instruction of his fellow citizens, to receive only a sterile glory, and to be unable to claim the legitimate reward of such noble labour.

It is after careful deliberation that this Committee advises you to create dedicated legislative provisions which will form, in a sense, the Declaration of the Rights of Genius.

(Lakanal, 2008 [1793], p. 176)

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My response:

The passage works by setting up an assumption that property and capital accumulated by certain individuals may be the source of significant inequality (and, unsaid) oppression. In a sense, that is the meaning (at that time at least) of the French Revolution – in that it challenged the control of land, and objects whose exchange may be more fluid (though the objects themselves are still solid material) property by a minority – those who call themselves the ‘best’;  the aristocracy. Aristocracies may be set up by accumulation of property in the hands of a few, but the French Revolution here does not declare that property is itself a problematic category: where ‘all property is theft’, Instead it implicitly declaims that property ownership be determined according to the ‘simplest elements of common justice’.

This belief in property rights as inalienable rights will become the trademark of bourgeois revolution. It institutes itself on a belief in unequal distribution of talents, founded on the example of ‘genius’. Genius is never equally distributed – if it were it could not be recognised as such and there would be no reason to separate our feelings about the fate of Corneille’s children from those of the children of every (wo) man. And if our belief that intellectual property is the ‘most incontestable’ can only be a step away from a New-Right’s (the neoliberal) justification that property itself is not the source of inequality but rather the natural and diversity of the qualities of its holders.

The passage is a defence of ownership in its crudest form and applying to objects that are unseen. A printed work may be an object that can enter the free market but its contents represent that which naturally belongs to the ‘author-function’ – that work which alienates (in silence) the author’s internal property and makes  it appropriable unless its ownership be legally protected as a ‘right’. If we believe in the ‘Rights of Man’ (sic) then (assuming that only some men (sic.) are genii) the rights of the genius are also an obvious corollary of those rights and we are a step away from copyright law.

We have reinstituted a kind of aristocracy in the name of equality and merit – a contradiction worthy of a true bourgeois revolution. Such a view must be music to a ‘genius’ like Marat or David.

An aristocracy of Nature. The masturbatory image of Corneille sputtering out his semen as waste is at its root – a right of man indeed. What we requite is a coming together of:

• the law (legitimacy),
• the recognition as a ‘fact’ that ‘natural’ inequalities of mental capital are an incontestable basis for inequality in the organisation of an ordered (and thus hierarchical) society – at least of bourgeois society.

This is the tragedy of nineteenth century France. The peasants die for a fraternity of capitalists.

Come back Zola – all is forgiven – even what you did to Cezanne!.