Article by Jane C. Ginsburg
The French and U.S. copyright systems are well known as opposites. The product of the French Revolution, French copyright law is said to enshrine the author: exclusive rights flow from one's (preferred) status as a creator. For example, a leading French copyright scholar states that one of the “‘fundamental ideas”’ of the revolutionary copyright laws is the principle that “‘an exclusive right is conferred on authors because their property is the most justified since it flows from their intellectual creation.”’ By contrast, the U.S. Constitution's copyright clause, echoing the English Statute of Anne, makes the public's interest equal, if not superior, to the author's. This clause authorizes the establishment of exclusive rights of authors as a means to maximize production of and access to intellectual creations.
Pursuing this comparison, one might observe that post-revolutionary French laws and theorists portray the existence of an intimate and almost sacred bond between authors and their works as the source of a strong literary and artistic property right. Thus, France's leading modern exponent of copyright theory, the late Henri Desbois, grandly proclaimed: “The author is protected as an author, in his status as a creator, because a bond unites him to the object of his creation. In the French tradition, Parliament has repudiated the utilitarian concept of protecting works of authorship in order to stimulate literary and artistic activity.”'
By contrast, Anglo-American exponents of copyright law and policy often have viewed the author's right grudgingly. One of copyright's reluctant advocates, Lord Macaulay, labeled the institution of copyright as “exceedingly bad,”' but was willing to tolerate it as the means to promote the dissemination of socially useful works. In this view, copyright should afford authors control no greater than strictly necessary to induce the author to perform his part of the social exchange.
Conceptions of French copyright law as author-oriented and of Anglo-American copyright law as society-oriented carry certain corollaries. In general, one may anticipate that the more author-centered the system, the more protective the copyright regime will be. And the extent of this author-centrism will promote some interests over others. For example, some argue that the different foci of the systems account for the active protection of authors' noneconomic moral rights to receive attribution for and preserve the artistic integrity of their creations in France, and for the traditional paucity of such safeguards in the U.S. Similarly, the French perspective will encompass most comfortably works of discernible literary or artistic content, while the U.S. emphasis on social utility may explain its historically vigorous copyright coverage of works such as compilations conveying much information but little subjective authorial contribution, as well as its present receptivity to computer program protection.
Another consequence of different copyright conceptions pertains to the role of formalities. Formalities are state-imposed conditions on the existence or exercise of copyright. If copyright is essentially a governmental incentive program, many formal prerequisites may accompany the grant. For example, requiring the author to affix a notice of copyright, or to register and deposit copies of the work with a government agency, before the right will be recognized or enforced is fully consistent with a public-benefit view of copyright. But these requirements clash with a characterization of copyright as springing from the creative act. If copyright is born with the work, then no further state action should be necessary to confer the right; the sole relevant act is the work's creation.
Despite these paradigms, the differences between the U.S. and French copyright systems are neither as extensive nor as venerable as typically described. In particular, despite the conventional portrayal, the French revolutionary laws did not articulate or implement a conception of copyright substantially different from that of the regimes across the Channel and across the Atlantic. The French revolutionary sources themselves cast doubt upon the assumed author-centrism of the initial French copyright legislation. The speeches in the revolutionary assemblies, the texts of the laws, and the court decisions construing the laws, all indicate at least a strong instrumentalist undercurrent to the French decrees of 1791 and 1793. Similarly, while the law of U.S. letters predominantly reflects and implements utilitarian policies, U.S. law was not impervious to authors' claims of personal right. Indeed, some of the earliest U.S. state copyright laws set forth author-oriented rationales of which any modern Frenchman would be proud—and from which some revolutionary legislators might have drawn considerable inspiration.
This Article examines the rhetoric and policies of the first French and U.S. copyright laws as well as their application in practice. Initially, I briefly review printing privileges under the ancien règime. Next, I examine the early Anglo-American copyright regime, with particular reference to the policies underlying the first U.S. copyright statute, and the works it covered. I then turn to the parliamentary speeches and texts of the French 1791 and 1793 decrees. Finally, I consider the French court decisions through 1814 construing the revolutionary copyright laws. This examination will demonstrate that the principles and goals underlying the revolutionary French copyright regime were far closer to their U.S. counterparts than most comparative law treatments (or most domestic French law discussions) generally acknowledge. The first framers of copyright laws, both in France and in the U.S., sought primarily to encourage the creation of and investment in the production of works furthering national social goals.
This study stops at the end of the Napoleonic era, substantially before the development of personalist doctrines, such as moral rights, by French copyright scholars and courts. These doctrines did provoke theoretical and practical divergences between the French and U.S. copyright regimes. But the later occurrences of a conceptual breach between the two copyright systems should not obscure the significance of their initial similarities. Recognizing this early congruence is important for several reasons.
First, in addition to the inherent interest the subject of comparative eighteenth-century copyright may hold, there is some value to setting the historical record straight. Second, historical accuracy may promote future legislative harmonization; now that increasing U.S. participation in international copyright agreements and policy-making bodies calls key features of the U.S. copyright system into discussion, one can properly argue that U.S. copyright has not always been different from that of its Continental partners. The comparison of systems shows that their distinctions are neither original nor immutable. A copyright regime's initial instrumentalist formulation does not preclude later reception of more personalist notions of protection. By the same token, a modern author-oriented copyright system's reference to its utilitarian past may assist its absorbtion of newer productions perhaps remote from the core of the beaux arts.
About the Author
Jane C. Ginsburg. Professor of Law, Columbia University. B.A. 1976, M.A. 1977, University of Chicago; J.D. 1980, Harvard University.
Citation
64 Tul. L. Rev. 991 (1990)