The Second Initiative (1791–1793)

The revolutionary law of July 19, 1793, which defined the legal limits and powers of the author and laid the foundation for republican publishing, has served as the basis for French publishing to this date. It is still the first standard citation in French law school textbooks on literary property.^[101] In order to understand how a law was finally passed and why it took the form it did, critical changes in the revolutionary context between 1791 and 1793 must be considered.

In 1791 there was a crucial shift in the balance of forces for and against the notion of a limited property right. The suppression of the Paris Book Guild in March 1791 had dealt a severe blow to the proproperty corporate lobby. A distinct law on libel and sedition was incorporated into the constitution in September, leaving the property question to be resolved independently of the issue of censorship. This

[101] See, for example, Henri Desbois, Le Droit d'auteur en France, 3d ed. (Paris: Dalloz, 1978), 416; or Claude Colombet, Propriété littéraire et artistique (Paris: Dalloz, 1980), 6.

separation significantly depoliticized the property issue. The Hell proposal, which circulated for public discussion in those uncertain months of the summer of 1791, appears never to have reached the floor of the assembly for a vote. By autumn it had become clear that the advocates of perpetual private property in ideas had wasted their energies by courting the wrong legislative committee.

The transfer of power from the Constituent to the Legislative Assembly on October 1, 1791, was accompanied by a structural reorganization of the assembly's committees. Jurisdiction over the question of literary property now passed from the Committees on Agriculture and Commerce to the newly formed Committee on Public Instruction, headed by Condorcet.^[102] He was joined by, among others, Sieyès.^[103] Thus the question of literary claims, raised first in 1790 as part of a repressive police measure and then as a commercial interest, was, by virtue of changing circumstances, recontextualized as a question of education and the encouragement of knowledge.

By 1791, moreover, the results of a second wave of agitation for authors' rights reached legislative formulation. This agitation came not from corporate interests, but rather from playwrights protesting the monopoly of the Comédie Française on dramatic works. Since the founding of the Comédie Française in 1680, only theater directors could legally receive privileges to present and publish theatrical works.^[104] This monopoly had not been affected by the royal recognition in 1777 of authors' literary privileges. The agitation of "unprivileged" playwrights was therefore crucial in disassociating the cause of authors' rights from a rearguard defense of Old Regime privileges and realigning it politically within the prorevolutionary attack on privileged interests.

Playwrights began their agitation in 1790 with the creation of a committee led by Pierre-Augustin Caron de Beaumarchais to assert the rights of dramatic authors to their own works and to call for abolition of the privileges of the Comédie Française. A protest petition bearing the signatures of twenty-one writers was presented to the National Assembly

[102] M.-J. Guillaume, ed., Procès-verbaux du Comité d'Instruction Publique de la Convention Nationale (Paris: Imprimerie Nationale, 1891), 1:iv.

[103] Ibid., iv–xiii. Although the exact composition of the committee was constantly changing, Condorcet and Sieyès were continuous and influential presences.

[104] See Renouard, Traité des droits d'auteur, 211–225. See also Michele Marie Root-Bernstein, Boulevard Theater and Revolution in Eighteenth-Century Paris (Ann Arbor: UMI Research Press, 1984).

by LaHarpe on August 24, 1790. This petition was essentially an effort to reintroduce into the assembly the clauses of the Sieyès proposal that had pertained to the theater and to property in dramatic works. Anyone, the signers argued, should be free to open a theater. The works of authors dead more than five years should be considered public property, but no one should be allowed to represent or publish the works of living playwrights without their written consent.^[105] The petition was sent to the Committee on the Constitution.^[106]

LaHarpe's plea did not fall on deaf ears. In fact, supporters of the Comédie Française charged that the petition drive had been instigated by a key member of the very committee to which it was submitted: "It's chez M. de Mirabeau . . . that this petition was cooked up."^[107] Whether true or not, there can be little doubt that Honoré-Gabriel de Mirabeau helped to advance the cause of the petitioners.^[108] Less than a month later, on January 13, 1791, René-Guy LeChapelier, for the Committee on the Constitution, presented to the National Assembly a projet de loi drafted by Mirabeau on behalf of the petitioners.^[109]

The Mirabeau proposal was essentially a redrafting of the articles of the Sieyès proposal pertaining to literary property, but this time focused on theater authors alone. In contrast to the earlier proposal, however, the preamble of the new projet stressed not authors' rights, but the rights of the public. Thus LeChapelier argued:

In soliciting for authors . . . exclusive property rights during their lifetime and five years after their death, authors acknowledge, even invoke, the rights of the public, and they do not hesitate to swear that after a period of five years the author's works are public property. . . . The public ought to have the property of great works. . . . But despotism invaded that communal property and carved it up into exclusive privileges.^[110]

The authors represented themselves as servants of the public good, of its enlightenment, in opposition to the private interests of publishers and

[105] LaHarpe, Adresse des auteurs dramatiques, 37–39.

[106] Ibid., 44.

[107] Article by M. de Charnois in Le Modérateur, cited by LaHarpe, ibid., 45.

[108] Renouard, Traité des droits d'auteur, 305–306.

[109] For the attribution of the projet to Mirabeau, see the letter written to the National Assembly on behalf of the authors of dramatic works on September 18, 1792, in Guillaume (ed.), Procès-verbaux du Comité d'Instruction Publique 1:52.

[110] René-Guy LeChapelier, Rapport fait par M. Le Chapelier au nom du Comité de Constitution sur la pétition des auteurs dramatiques, 13 janvier 1791 (Paris: Imprimerie Nationale, 1791), 4–6, in AN, ser. ADVIII, carton 16.

theater directors. Hence the authors themselves rejected the Diderotist argument for unlimited and absolute claims on their texts and, reviving the compromise position of Sieyès and Condorcet, presented themselves as contributors to "public property" and guardians of the public claim to the nation's cultural commons. The author was now depicted as a hero of public enlightenment, rather than as a selfish property owner. Unlike the Sieyès proposal, that of LeChapelier passed into law on January 13, 1791, abolishing all past privileges and recognizing the playwright's claims as exclusive property rights until five years after the author's death, at which point they would become part of the public domain.

This law, however, covered only the work of authors in the theater. The initiative to define the legal status of all authors therefore passed to the newly formed Committee on Public Instruction. Ironically, it was the recently empowered authors of dramatic works who again brought the issue to the committee's attention. On December 6, 1791, the Committee on Public Instruction received a request from a deputation of authors headed by Beaumarchais to hear new charges against theater directors for noncompliance with the law of January 13. It seems the theater directors had chosen to interpret this law as applying only to future works, leaving them free to present any work, even by a living author, that had already been printed or published. Further, they claimed publication rights on any work contracted by their companies prior to the law.^[111]

Following a series of meetings, the committee drafted a projet de loi that was presented by Gilbert Romme and passed in the National Assembly on August 30, 1792.^[112] This law, however, represented a victory for the theater directors: it upheld all contracts between authors and the theaters and sustained the exclusive right of the theaters to stage any work performed prior to the passage of the law of January 13, 1791. Needless to say, the law met with a vociferous outcry from authors. This time the playwright Marie-Joseph Chénier headed up the protest with a

[111] A succession of meetings and debates on the retroactive implications of the law ensued between the authors and the theater directors in the Committee on Public Instruction on December 9 and 23, 1791, and January 2, 6, 9, 13, and 23, 1792. See M.-J. Guillaume, ed., Procès-verbal du Comité d'Instruction Publique de l'Assemblée Législative (Paris: Imprimerie Nationale, 1889), 47–8, 76, 78–9, 83, and 94. See also Pierre-Augustin Caron de Beaumarchais, Pétition à l'Assemblée Nationale . . . contre l'usurpation des auteurs ([Paris]: Dupont, [1791–1792]).

[112] Presentation of the proposal was first attempted on February 5, 1792, but was deferred, first to February 8 and finally to August 30, 1792. See Guillaume (ed.), Procèsverbal du Comité d'Instruction Publique, 96.

letter and petition to the Committee on Public Instruction dated September 18, 1792. The law, Chénier argued, had been slipped through by Romme without the support of the majority of committee members.^[113] Consequently, the committee reopened the question.^[114]

Those expressing discontent in 1792 were not just writers of dramatic works. On January 2, 1792, the committee received a petition from thirty authors and editors of music who begged the National Assembly, "in all its wisdom, to find a means to protect their property and prevent pirating."^[115] The novelist Jean-Baptiste Louvet de Couvray wrote to the National Assembly as well, requesting permission to present a petition "calling for a law against piraters, who are destroying the book trade and bringing me to ruin."^[116] These appeals did not go unnoticed. On February 20, 1793, the Committee on Public Instruction finally assigned Chénier the task of drafting a general law against pirate editions in all genres.^[117] News of the forthcoming proposal was announced in the Moniteur in April, but Chénier did not succeed in getting the convention floor during the troubled spring of 1793.^[118]

[113] Guillaume (ed.), Procès-verbaux du Comité d'Instruction Publique 1:52–53. For the original letter, the reference is now AN, ser. F17, carton 1001, doss. 39, doc. 1.

[114] The struggle between the theater owners and authors was as byzantine as it was, ultimately, fruitless; see ibid., 1:51. In February, P.-C.-L. Baudin was charged by the committee to draft yet another law concerning the rights of authors of dramatic works, with the intention of abrogating the law of August 30, 1792; see Baudin, Rapport et projet de décret sur la propriété des auteurs dramatiques présentés au nom du Comité d'Instruction Publique par P.C.L. Baudin (Paris: Imprimerie Nationale, [1793]), in AN, ser. ADVIII, carton 16. The report was announced in the Journal des débats et des décrets, no. 168 (March 4, 1793); cited in Guillaume (ed.), Procès-verbaux du Comité d'Instruction Publique 1:347, 349n. 1. On February 28, the playwright Michel-Jean Sedaine sent a letter and a petition to the committee demanding that the heirs of Jean Racine receive perpetual royalties on the presentation or publication of his works—but to no avail; see AN, ser. F17, carton 1004b, doss. 447, doc. 1, Letter and petition from Sedaine to the Committee of Public Instruction. On March 4, Baudin's proposal, which abrogated the law of August 30, 1792, and reaffirmed the original law of January 13, 1791, was published by the committee and distributed to the members of the National Convention. Protest against the proposal was registered by the committee on March 19. The proposal was pursued no further. See Guillaume (ed.), Procès-verbal du Comité d'Instruction Publique, 367, 369–371, 392n.3.

[115] AN, ser. F17, carton 1004a, doss. 397, Letter from authors and editors of music to the National Assembly, January 2, 1792. This letter and a petition were forwarded to the Committee on Public Instruction on June 2, 1792.

[116] AN, ser. C, carton 147, no. 167, Letter from Jean-Baptiste Louvet de Couvray to the National Assembly, February 23, 1792.

[117] Guillaume (ed.), Procès-verbaux du Comité d'Instruction Publique 1:347 (session of February 20, 1793).

[118] Cited in ibid., 348.

After the "revolution" of May 31–June 2, 1793, which purged the Girondist faction from the National Convention, Condorcet ceased appearing at committee meetings. A month later he was in hiding.^[119] Sieyès took over the committee presidency on May 23, but he and Chénier both soon withdrew as well.^[120] Denounced as Girondists, all three were formally excluded from the committee on October 6, 1793.^[121] It is ironic that the Girondist law on which modern French publishing is based should emerge precisely at the moment of the Jacobin victory that suppressed its authors. Indeed, it was the Jacobin consolidation of power that made it possible for the law to pass. On July 19, 1793, the convention at last heard Chénier's proposal, presented on behalf of the Committee on Public Instruction by Joseph Lakanal.^[122] It was passed with no recorded discussion.^[123]

The decree amounted to yet another version of the Sieyès proposal of 1790. No longer perceived as a "Girondist" police measure intended to insure the accountability of authors, or as a commercial regulation to protect the private property interests of publishers, it was now presented as a mechanism for promoting public enlightenment by encouraging and compensating intellectual activity—that is, by granting limited property rights to authors:

Citizens, of all the forms of property the least susceptible to contest, whose growth cannot harm republican equality, or cast doubt upon liberty, is property in the productions of genius. . . . By what fatality is it necessary that the man of genius, who consecrates his efforts to the instruction of his

[119] Ibid., xiii.

[120] Alfred Jepson Bingham, Marie-Joseph Chénier: Early Political Life and Ideas (1789–1794) (New York, 1939 [privately printed]), 123–126.

[121] Ibid., 125.

[122] For a textual analysis of the provenance of the projet, see Guillaume (ed.), Procèsverbaux du Comité d'Instruction Publique 2:80. My hypothesis is that Chénier drafted the version of the law but for political reasons did not present it himself. It was ultimately presented by Lakanal. In both the contemporary press and the Committee on Public Instruction's proceedings, Chénier is assumed to be the author, and the proposal conforms closely to the views expressed in his petition of September 18, 1792. This theory is also supported by Bingham, Marie-Joseph Chénier, 123. It should be noted, however, that Joseph Lakanal later claimed credit for the proposal; see his Exposé sommaire des travaux de Joseph Lakanal (Paris: Didot, 1838), 9–12.

[123] Madival and Laurent (eds.), Archives parlementaires 69:186–187. A little over a month later, on September 1, 1793, the convention added a new clause to the law to clarify explicitly that this law was intended to supersede the LeChapelier law on theater authors of 1791 and to cover equally authors of dramatic works; see ibid., 73:293–294.

fellow citizens, should have nothing to promise himself but a sterile glory and should be deprived of his claim to legitimate recompense for his noble labors?^[124]

Like the Sieyès proposal three years earlier, this law guaranteed authors, their heirs, or those to whom they ceded the text by contract an exclusive claim on the publication of the text for the lifetime of the author plus ten years. The royal Administration of the Book Trade, which had registered the literary privileges of the Old Regime, was to be replaced by a national depository at the Bibliothèque Nationale, where all property claims were to be legally registered. The decree differed from the Sieyès proposal in one crucial respect: it gave no retroactive protection to the former holders of privilèges en librairie or privilèges d'auteur . With the law of July 19, 1793, then, the cultural capital of the Old Regime was definitively remanded from the private hands of heirs and publishers into the public domain. As Condorcet had dreamed, the authors of the Enlightenment as well as those of the classical age became the inheritance of all.

The severing of the clauses on literary property from their original context in the Sieyès proposal on sedition and libel, the deletion of the clause reaffirming current privileges, the mobilization of authors, and the new stress on public enlightenment significantly transformed the law's political meaning and impact. Initially part of a concerted moderate effort to re-regulate and police the printed word and insure publishers profits, the recontextualized clauses were presented by Lakanal as a "declaration of the rights of genius"—a Jacobin effort to abolish the vested interests of inherited privileges, to consecrate the bearers of enlightenment, and to enhance public access to the ideas of the Enlightenment.

But the law did not resolve the epistemological tension between Condorcet and Diderot. Instead it produced an unstable synthesis of the two positions. Although it drew on a Diderotist rhetoric of the sanctity of individual creativity as an inviolable right, it did not rigorously respect the conclusions Diderot drew from this position. In contrast to the privilège 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

[124] Lakanal's speech to the National Convention, July 19, 1793, is in Guillaume (ed.), Procès-verbaux du Comité d'Instruction Publique 2:82.

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 refashioning the political identity 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.

This understanding of the history of the formation of the legal identity of the author returns us to Foucault's original question: What is an author? The author as a legal instrument for the regulation of knowledge was created by the absolutist monarchy in 1777, not by the liberal bourgeois democracy inaugurated in 1789. The author was created by a royal regime that exercised power through privilege, rather than by a constitutional regime committed to insuring the protection of the individual as a private property owner. The revolutionary legislation did redefine the author's privilege as property, but not as an absolute right. The intention and the result of this redefinition of the author's claim to his text as property did not, however, enhance the author's power to control or determine the uses and meanings of the text. Quite the opposite, in fact.

What the revolutionaries acknowledged and sought to insure was not the individual dictation of meanings and truths, but their maximum exchange, conflict, and social negotiation. Progress in understanding, they believed, occurred through enhanced access and exchange. In reshaping the cultural regime, the revolutionaries sought to make a world appropriate not to an absolutist police state, but to a liberal state founded on conflict and negotiation. The democratic bourgeois revolution did not mark a further step in the progressive consolidation of the notion of the author. Rather, the revolutionaries explicitly intended to dethrone the absolute author, a creature of privilege, and recast him,

Plate 5. 
Detail of "La Révolution française." Engraving by A. Duplessis [1790s]. The 
Revolution celebrated the author as a hero of public enlightenment rather than 
as a private individual creator. Musée de la Révolution française, Vizille, France.

not as a private individual (the absolute bourgeois), but rather as a public servant, as the model citizen (plate 5). This civic ideal of authorship was shared by both liberal statesmen such as Condorcet and Sieyès and the most capitalistically inclined publishers like Panckoucke. Concern for the public good explains why the author's regulative powers, rather than being further consolidated, were eroded and destabilized by the revolutionary legislation.

Contrary to Foucault's Diderotist interpretation, the revolutionary legislation actually reflected not one but both sides of the Enlightenment debate, effecting an epistemologically impure and unstable legal synthesis that combined an instrumentalist notion of the public good with a theory of authorship based on natural rights. Precisely because of this legal instability, the regime by which the public exchange of ideas was regulated would be challenged and renegotiated repeatedly throughout the revolutionary period.

If the Old Regime first accorded Voltaire, Rousseau, or Mirabeau the possibility of legal status as privileged authors with perpetual private lineages for their texts, the Revolution relocated these figures in the public domain, the legal parallel to the civic rituals that unearthed them from private gravesites and reposed their bodily remains in the public temple of the Pantheon. By legally consecrating and protecting the public domain, rather than the private authorial lineage, the French revolutionary laws on authorship shifted the legal basis of exclusive commercial claims on the majority of books from the manuscript to the edition, from the text to the paratext. As a result, the problem of determining the fate and meaning of a text shifted away from its source, the author, and toward its destination, its representation and reception by the editor and reader.^[125] In this way the revolutionaries inaugurated a new cultural regime preoccupied as much with paratexuality—that is, with distinctions between different editions and readings of texts—as with epistemological debates about the origins of ideas.^[126] The questions "Who is Voltaire?" and "What is Rousseau?" were thus joined by a new set of legal, commercial, and also literary preoccupations: Whose Voltaire? Which Rousseau? Not until the end of the nineteenth century would the legal recognition of the "moral rights" of authors put limits on how an author's works, once devolved into the public domain, could be edited or represented.^[127]

Although there can be little doubt that the eighteenth-century expansion of commerce in the printed word placed unprecedented pressures on public authorities to recognize authorial property, the legal responses of both prerevolutionary and revolutionary authorities did not reflect these socio-economic changes alone. Politics, and a concern for public life, mediated the successive negotiations between the private interests of authors and publishers and the concerns of legal authorities. As a consequence, the revolutionary legislators produced a legal conception of authorial identity that did not merely consecrate, but also limited, the author's power of self-determination, for the sake of the public good.

[125] For recent developments in the history of reading, see Chartier, Lectures et lecteurs; Chartier (ed.), Usages de l'imprimé; Roger Chartier, "Texts, Printings, Readings," in The New Cultural History, ed. Lynn Hunt (Berkeley and Los Angeles: University of California Press, 1989), 154–175; and Robert Darnton, "Readers Respond to Rousseau: The Fabrication of Romantic Sensitivity," in Great Cat Massacre, 215–256.

[126] For important theoretical reflections along these lines, see Genette, Seuils .

[127] See Desbois, Droit d'auteur .

With the "declaration of the rights of genius," the power to determine the meaning and fate of ideas devolved from the state, the family, and the corporate publishers to individual authors and to the public at large. The ideal of an enlightened republic was embodied in more than just the "rights of genius"; it lay also in the notion of democratic access to a common cultural inheritance, preserved in the public domain.