The First Initiative (1789–1791)
The revolutionary debate unfolded in two distinct stages. The first legislative effort to define the legal standing of claims upon ideas appeared as a subsection of a comprehensive law on sedition and libel that was presented to the National Assembly by Emmanuel Sieyès on behalf of the Committee on the Constitution, on 20 January 1790.[37] The law was born out of
a convergence of the commercial interests of book publishers and the political imperatives of the National Assembly.
With the collapse of the royal institutions that regulated the printed word and the constitutional challenge to the notion of literary "privileges," pirate publishing ventures flourished. One after another, the publishing elites of the Old Regime were driven into bankruptcy by the collapse of their monopoly on the printed word.[38] Thus the Paris publisher Jean-François Royer lamented in an avis of 1789 that "pirate editions are one of the principal reasons for the losses in the publishing business."[39] And so too a Parisian police commissioner observed: "There is no author who will consecrate his efforts to the instruction of his century if pirating is made legal."[40] Observations like these soon percolated upward into the discussions of the National Assembly. Publishers sent testimony that they were being driven to produce seditious and libelous material in order to stay afloat. Thus in the session of 12 January 1790 the deputy Charles de Lameth testified that "a Paris publisher has just reported to me that, unable to make any profit printing good books, he is being forced to go into the business of printing and selling libelous matter. . . . There are few printers in Paris who can afford not to."[41] Hoping to gain the ear of the assembly, publishers thus linked the economic issue of literary property and its protection to the political questions of sedition, libel, and authorial accountability.
The National Assembly itself was in the throes of a conservative backlash against the collapse of all regulation of the printed word. In the face of a flood of anonymous, libelous, and seditious pamphlet literature, the assembly heard repeated demands for laws requiring authors to sign published works and holding authors accountable for their publications. Thus the economic complaints from publishers converged with the political outcry from Jacques-André d'Emeri for "a law on the freedom of the press" to outlaw seditious publications, or from the deputy Louis-Marie, marquis d'Estourmel for a law requiring authors, publishers, and printers to sign, and thus lay claim to, the works they produced as a means of holding them accountable.[42] As a consequence of this agitation, the assembly moved that "the Committee on the Constitution will be charged to present forthwith, a proposal for a law regulating the freedom of the press."[43] Eight days later, on 20 January 1790, a proposal for a law on sedition, libel, and literary property was presented to the assembly by Sieyès on behalf of the committee.[44]
The initiation of the Sieyès proposal was part of the effort by moderates in Paris and in the assembly to restore order and check the radicalization of the Revolution in the wake of the popular revolt that swept the cities and countryside after the fall of the Bastille.[45] By the end of 1789, Sieyès was meeting with the group of moderates who had splintered off from the Jacobin Club, including Condorcet, Lafayette, the duc de la Rochefoucauld, the duc de Liancourt, and Dupont de Nemours. In early January 1790 these men officially founded the
Society of 1789.[46] There can be little doubt that this group, and in particular Condorcet, played a crucial role in drafting the National Assembly's first legislative effort to regulate the printed word.
Significantly, the proposal was publicly attributed to Condorcet as well as Sieyès.[47] There is good evidence to support this attribution. In both form and content the proposal presented by Sieyès in 1790 bears a striking resemblance to the Fragments sur la liberté de la press that Condorcet had composed in 1776.[48] Indeed, close comparison of the two texts suggests that the Sieyès projet was drafted directly from Condorcet's pamphlet. The two documents share virtually the same organizational structure, and the substantive parallels between the two texts are equally striking. Ironically, then, the pamphlet Condorcet had initially circulated as a radical indictment of the inquisitorial institutions of the Old Regime he in turn revived in 1790 to serve as a conservative check on the flood of ideas unleashed by the collapse of those very institutions, by proposing a law that would hold authors, publishers, and printers legally accountable for their publications.
This conservative turn is further disclosed in the one substantive change made in Condorcet's earlier pamphlet as reworked for the proposal presented by Sieyès. This was the section on "privileges" and literary property. In 1776 Condorcet had argued that ideas were social rather than individual in origin and that as a consequence they could not be considered a form of private property to be protected as a natural right. Further, he had argued that "privileges," as private claims upon texts, inhibited rather than aided the spread of enlightenment. By 1790, Condorcet had evidently reconsidered his position in light of recent events, because nothing could have stood in sharper contrast to this position than the clauses on literary property that replaced this passage in the Sieyès projet . Instead of denouncing literary property as a privilege, they claimed instead that "the progress of enlightenment, and consequently the public good united with notions of distributive justice to necessitate that the property of a work should be guaranteed to the author by law."[49] They went on to specify, however, that this property right was to be limited to the author's life and ten years—the length of time deemed necessary to complete and sell an edition. The Sieyès proposal thus consecrated the notion of property in ideas, but in a limited form. The notion of limiting of authors' property rights reflected the continuing influence of Condorcet's original concern that the "progress of enlightenment" depended upon public access, rather than private claims to ideas.
Article 21 concluded the section on literary property with an effort to smooth the transition from the Old Regime of "privileges" to the new regime of property: "Publishers or others who at present have acquired for any work a privilege for a fixed term, will continue to enjoy this privilege for its entire duration."[50] In direct contrast to Condorcet's original position, the Sieyès proposal thus argued that the spread of enlightenment was best achieved, not by liberating ideas from
particular claims entirely, but rather by ensuring the viability of the book as a legally defined and protected commodity.
The main concern of the debates on the freedom of the press in the assembly, and of the Sieyès proposal itself, was to stem the flood of libels and seditious pamphlets that poured forth after the collapse of the systems of censorship and surveillance of the Old Regime. The projet was primarily an effort to determine the limits of what could be said in print and to establish the legal accountability of authors, printers, and booksellers for what they made public. Consequently, it is the repressive aspects of the projet that have received attention from historians.[51] The assembly, the Committee on the Constitution, and Sieyès had taken Lameth's comments about the state of the book trade seriously. The connection between the crisis in book publishing and the boom in periodical and ephemeral literature was not lost upon them. If the commercial insecurity of book publishing was driving printers and publishers into ephemeral printed matter, then the flood of ephemeral matter (i.e., seditious and libelous pamphlets) might abate if book publishing could be restored to a commercially secure and profitable footing. It is only in light of these political concerns that we can understand why the National Assembly's first legislative effort to define and protect literary property emerged within a law on sedition and libel, and why Condorcet's original position had been reversed.
The first revolutionary effort to give legal recognition to the author's claim on the text, then, was not a grant of freedom to the author, but the imposition of accountability and responsibility. Politically, it formed part of a conservative pro-order move, a police measure. The law made the author legally accountable for the text by defining it as his property.
Nor were the commercial motivations behind the law any more concerned with enhancing the power of the author over the text. In comparison with the royal decrees of 1777, authors were being dealt a rather poor deal by the revolutionary legislators. The proposal rejected the crown's grant of authors' claims in perpetuity. Instead, it argued for limiting authorial claims to ten years after the author's death in the interest of the "progress of enlightenment" and "the public good." Thus, while declaring that texts are authors' property the law in fact severely diminished the author's power to determine the fate of his texts, and put an end to the perpetual private claims (privileges) granted by the crown upon the literary inheritance of the nation. True to the spirit of Condorcet's original pamphlet, he and Sieyès wanted to free those texts for the use of all citizens. This was no theoretical matter. By advancing the notion of "limited property," the two men were proposing that the entire literary inheritance of the nation pour forth from the hands of private publishers and the heirs of authors into the public domain: Rousseau and Voltaire, as well as Racine and Molière, had all been dead for well over ten years. They would now be freely publishable, in any form, by all citizens.
While the proposal rendered publishers, authors, and heirs equal before the law, it failed to address or resolve the philosophical issue at the heart of the late-eighteenth-century debate. If property rights were inviolable natural rights, as the Declaration of the Rights of Man and the Citizen had recently proclaimed, what power did the state have to limit them or regulate their distribution? If claims upon property were instead socially constituted, were they not then just "privileges" by another name? The proposed law appeared incoherent and arbitrary: on the one hand it recognized a property right, and on the other, by defining it as noninheritable, it also advanced an instrumentalist notion of the public good that flew in the face of natural rights theory and explicitly undermined the actual power of individuals to exercise their constitutionally guaranteed right. It was an attempt at a compromise between the two epistemological stances, between individual and collective claims on ideas.
The Condorcet/Sieyès proposal of 1790 broke on the shoals of its own contradictions. While applauded upon presentation in the assembly, the proposal suffered such virulent criticism from so many quarters that it was never even brought to a vote. Much of this criticism focused on the issues of libel and sedition, and, in particular, on the articles that proposed that authors and printers could be held accountable for the seditious and criminal actions that their works could be construed as intending to incite.[52] Radicals were quick to detect the repressive and conservative character of the entire proposal. The militant journalist Elysée Loustallot decried any law that limited the exercise of a natural right: "The patriotic public does not ask for a law granting freedom of the press. . . . The only true limits of freedom are those in the nature of things themselves."[53] There should be no civil laws, according to Loustallot, limiting or regulating what could be said in print—even if it seemed libelous or seditious to the men in power.
Apart from the issues of sedition and libel, the measure was also criticized for its treatment of the issues of literary privileges and property. This section of the law was attacked from three different positions from 1790 to 1791. The first line of attack came from pamphleteers who took up Condorcet's position of 1776 specifically to denounce any measure that would reimpose private claims upon ideas. Thus, the comte de Kéralio attacked the very notion of property in ideas as a threat to freedom of thought and, consequently, to the progress of enlightenment:
[The National Assembly] has negated all privileges as destroyers of liberty. . . . And as liberty cannot be maintained without enlightenment and knowledge, a wise legislator will guard himself from conserving even the smallest of privileges, which, by limiting the freedom of the press, restrain freedom of thought and inhibit the expansion of human knowledge.[54]
He viewed the Condorcet/Sieyès proposal as an unprincipled and misguided effort to translate a regime of privilege into a rhetoric of property. According to
Kéralio, the cause of "authors' property rights" was no more than a political smokescreen, serving to conceal the commercial interests of publishers.[55] The commercial publishing world offered ample evidence to support these charges. Like Condorcet in 1776, Kéralio believed knowledge should be freely accessible to all—even to print, publish, and sell.
A second line of attack on the Condorcet/Sieyès proposal was advanced by the old corporate monopolists of the Paris Publishers' and Printers' Guild and the royally privileged theater directors, who revived and deployed Diderot's arguments in a campaign to have their "privileges" recognized as unlimited property rights. They mounted a lobbying effort to kill the proposal in committee. The playwright Jean François de LaHarpe protested to the National Assembly on 24 August 1790:
Your decrees have pronounced the abolition of all privileges. Having enjoyed such privileges for over one hundred years, the directors of the Comédie française . . . claim that all the plays that they have been given the exclusive privilege to perform since the establishment of their theater are now their eternal and inviolable property.[56]
A few weeks later on 6 September the officers of the Paris Publishers' and Printers' Guild joined in this corporatist reaction and presented a mémoire to the assembly in which they proposed to "put before the eyes of the Committee on the Constitution, the Code for the Publishing and Printing Trades edited by the great d'Aguesseau [i.e., the code of 1723]."[57] It was the code of 1723 that had provided the basis for arguments that publishers' "privileges" were automatically and perpetually renewable and hence actually the confirmation of an anterior property right.[58] How could a revolution that had declared property a natural and inalienable right now take steps to limit that right?
These arguments were forcefully reiterated in 1791 as the forces of cultural reaction mobilized with greater intensity to advance their corporatistic cause under the guise of defending "authors' rights." The Committee on Agriculture and Commerce reported on a letter from the Keeper of the Seals in which he testified that the lack of a law guaranteeing literary property was ruining French letters:
It is impossible to doubt that the vigilant and active protection that the government has always accorded the property of authors and those to whom they cede their works was one of the principal reasons that literature has flourished in France more than with any other modern people. There can be no doubt that pirates of our best books will incessantly inundate the kingdom, ruin proprietors, intimidate those who are in a position to purchase manuscripts, and exhaust, in a word, the most precious branch of our national industry.[59]
The Keeper of the Seals recommended that the Committees on the Constitution, Agriculture and Commerce, and Research meet together to resolve this question. The Committee on Agriculture and Commerce took the initiative to convene the
three committees "to propose a law on these issues which are crucial to the book trade and to literature."[60]
The formal abolition of the Publishers' and Printers' Guild in March 1791 dealt a severe blow to the corporate lobby.[61] But individual publishers of the old guild, as well as public officials, continued to agitate for the protection of literary property. On 22 May the Minister of Justice (formerly the Keeper of the Seals) wrote to the Committee on Agriculture and Commerce urging action.[62] The following day François Hell, a member of the committee, received a letter from
MM. Jean-Marie Bruyset and Pierre-Marie Bruyset and son, printers of Lyon, requesting a law that will assure authors the property in their works and prohibit pirating. . . . They state that this law is urgently needed, as at this moment someone has pirated a fifteen-volume edition of Valmont's Dictionnaire which only appeared fifteen days ago, which cost 500,000 livres to produce, and the loss of which would reduce the author and printers to the state of beggars.[63]
The Committees on Agriculture and Commerce, and on the Constitution, resolved as a consequence of this report to charge Hell with the drafting of a new law.
The Hell projet , published by order of the National Assembly sometime in the summer of 1791, gave legislative embodiment to the principles long advocated by the Paris Publishers' Guild and Diderot. Thus Hell announced to the National Assembly:
The first of all properties is that of thought; it is independent, it is anterior to all laws. . . . All other forms of property are nothing but conventions, social concessions, those of the mind and of genius are gifts from nature, they ought to be beyond any restriction. . . . The Old Regime named the act by which one guaranteed literary property a "literary privilege." A privilege! What a gross abuse of words. You have destroyed the word . . . now you can consecrate the thing.[64]
Nothing could have been further from the views presented a year earlier by Sieyès and Condorcet. The specific clauses of the Hell projet de loi upheld all former "privileges" on the entire literary inheritance of France, which had been accrued by publishers in consequence of the code of 1723, as titles of property. Literary property was to be inheritable and transmissible in perpetuity like any other form of property. The law was to be printed at the end of every publication "replacing the text of the former privilege."[65] This was precisely the interpretation that the Comédie française and the Paris Publishers' and Printers' Guild had long hoped to advance.
A third line of attack on the Condorcet/Sieyès proposal was voiced from within the camp of those who actually sympathized with the principle of a limited property right. Three days after the Sieyès proposal was presented to the assembly, Charles-Joseph Panckoucke, the wealthiest publisher in Paris, published the first of two articles in the Mercure de France exposing his own views on
how the crisis in book publishing could be resolved.[66] Like Sieyès and Condorcet, he expressed ideological concerns about unlimited exclusive claims on ideas: "An author or a publisher who would be the eternal proprietors of their books, would necessarily be monopolists."[67] Panckoucke did not believe in monopolies in ideas. He shared Condorcet's concern that perpetual monopolies on texts left the fate of public enlightenment and the spread of enlightened ideas totally in the hands of private individuals. Limits on private claims, he insisted, were justified by public interest.
He felt, however, that the limits on private claims proposed by Sieyès and Condorcet were too severe. Instead, he proposed that France adopt the model put into place by the English in 1774:
Every author enjoys at first a fourteen-year claim upon his work. If he survives that term, he obtains another fourteen years of enjoyment of his claim. At the expiration of that term, the book belongs to the public. The [English] nation has thought, with reason, that this is the proper means of reconciling private interest with the public good, and that as good books contribute to its enlightenment . . . it is just to favor its writers with these dispositions.[68]
As a publisher of multi-authored, multivolume works, Panckoucke sought to extend the legal definition of the unit of time deemed necessary to complete an edition from ten to fourteen years. Nonetheless, the arguments of even this large commercial publisher rested not upon the inviolability of property rights but, rather, upon the ideal of an enlightened nation. Writers merited special favor not as property holders but because they were the source of the "good books" through which the public received enlightenment. Once they had received their compensation, the public good dictated that these texts belong to all.
By 1791, then, the mid-century debate between Diderot and Condorcet had resurfaced within the Revolution itself. Caught between their interest in liberating public circulation of ideas from the inquisitorial and monopolistic institutions of the Old Regime and their fear of the political consequences of the cultural anarchy that had ensued from the "freeing of the press," Condorcet and Sieyès had advanced the notion of a "limited property right" in an attempt to effect a legislative compromise between private interests and public enlightenment. But cultural libertarians, like Kéralio, took up Condorcet's arguments of 1776 and protested violently against any private claims on ideas. Alternately, the Publishers' and Printers' Guild, along with the directors of the Comédie française, mobilized a corporate lobby to argue for the inviolability of authors' property rights. Even men like Panckoucke, who agreed with the basic premise of a "limited right," found the particular stipulations of the proposal unacceptable. The Condorcet/Sieyès proposal of 1790 foundered in a sea of criticism. There was to be no law regulating claims upon ideas until 1793.