Diderot vs. Condorcet: Information Technology and "Moral Rights"

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Heirs of the Enlightenment: Copyright During the French Revolution and Information Revolution

In Historical Perspective

By David Walker December 17, 2000

Introduction

During the Enlightenment, two conflicting viewpoints on the nature of authorship, creativity, and copyright emerged. One view, proposed by the French thinker Denis Diderot, advanced the notion that literary works are unique creations of the individual mind, and thus should be protected as the most sacred form of property. The other view, advanced by the Marquis de Condorcet, saw literary works as the expression of ideas that already exist in nature, and thus belong to all and should be made available to all for the common good. Both viewpoints had a profound influence on the changing legal status of intellectual property during the French Revolution. Even more, this paper will argue that these two conflicting viewpoints, both of which were firmly grounded in Enlightenment thought, still continue to have an influence into the present, and the tension between the two continues to be played out in the arena of copyright in the United States in the year 2000. The paper will examine both time periods, taking as its analytical framework a model in which the preexisting state of copyright changed to a new form of copyright due to a crisis in publishing. During the French Revolution, political upheaval changed copyright in France from a Diderot-like model to a Condorcet-like model. Recent trends in copyright law in the United States, however, seem to suggest that the crisis of the Information Revolution will produce the exact opposite result.

Epistemological Tension: Diderot and Condorcet

To begin, let us turn briefly to the authors, outlining their respective positions. In 1763, Denis Diderot (1713-1784), the most prominent of the French Encyclopedists, was hired by the the Paris Book Guild to write a treatise defending their claim that literary works were a form of property. In that work, Diderot argued that ideas sprang directly from the individual mind, and thus were a unique creation in and of themselves. Indeed, they were, in his words, “the very substance of a man” and “the most precious part of himself.” There was no comparison between the work of the mind and physical objects, such as a field, a tree, or a vine, which nature had given to all freely, and could be cultivated only through labor and a social claim to the land. Ideas were subjective, individual, and uniquely constituted, and thus were the most inviolable form of property.1

For Diderot, copyright should be recognized as a perpetual property right, bestowed upon an author and inherited by his or her offspring. In the event that an author's lineage could not be determined, this indefinite monopoly should fall to the holder of the copyright (or more specifically its eighteenth century French equivalent, the “literary privilege”), following the theory of the “right of first use.” Building on Diderot's argument, the Paris Book Guild could argue that its claim to the literary rights of a number of works gave them sole copyright as a form of property.2

In sharp contrast to the position of Diderot was another French Enlightenment position on intellectual property, set forth by one of the nation's most prominent mathematician, philosopher, and political thinkers, the Marquis de Condorcet (1743 - 1794). In a pamphlet entitled Fragments sur la Liberté de la Presse, Condorcet argued that ideas did not spring directly from the mind, but originated in nature, and were thus open to all. Like Locke, who argued that ideas emerged from the combination of sensations, Condorcet saw literary works as the expression of ideas that already existed. The form of a work might be unique, but the ideas were objective and particular, and could not be claimed as the property of anyone. Unlike land, which could only be settled by an individual or a family, and passed down by lineage to offspring, ideas could be discovered, used, and cultivated by an infinite number of people at the same time.

For Condorcet, individuals could not claim any special right or privilege to ideas. In fact, his ideal world would contain no authors at all. Instead, people would manipulate and disseminate ideas freely for the common good and the benefit of all. Books would be replaced by periodicals, which would be supported by subscriptions to a specific field of knowledge rather than purchased for a specific author. Copyright would not exist, since no individual or institution could claim to have a monopoly on an idea. 3

These two opposite, conflicting viewpoints have never found their full expression in any time or place. Nevertheless, the epistemological tension and conflict between the two played itself out, perhaps unwittingly, during the French Revolution, and serves as a convenient framework for analyzing the events of 1789 and beyond. Let us then turn to the situation in France at the end of the eighteenth century.

French Revolution

Under the Old Regime, copyright in the modern sense did not exist. Instead, the Crown bestowed the right to publish on various authors, printers, and book guilds under a “royal privilege.” The Administration of the Book Trade, a division of the Office of the Keeper of the Seals, dispensed and registered these literary privileges in cooperation with various pre- and post-publication censors. The Administration could grant several different types of privileges with a wide array of legal sanctions accompanying the publication of a work. These included everything from tolerance of an illegal work (i.e., a work that had not passed the censors) up to and including a privilège d'auteur, which “gave the author of a work and his or her heirs an exclusive monopoly on the publication in perpetuity.”4

Lucrative publication privileges for literary classics, religious texts, and seventeenth century Enlightenment works gradually accumulated in the hands of powerful publishers located in major cities, in particular the Paris Book Guild. Located in the nation's capital, and thus uniquely situated for royal patronage and close scrutiny by the Crown, Parisian publication houses, which were owned by a few wealthy families, began to enact a monopoly on printing. They alone had the right to control the publication of the best works of the past, as well as limit the publication of future works. These publishing houses were supported by the Crown, which limited the number of presses in France, and the police, who uncovered and destroyed illegal copies of books and unsanctioned presses.

Prior to the Revolution, then, the concept of authorship in France essentially followed the model of Diderot. An author and his or her heirs could maintain what amounted to a form of copyright on a work indefinitely, reflecting the belief that a literary work was the author's uniquely created property. The result, however, was the consolidation of publication rights, not in the hands of authors, but in the hands of powerful publishers. This system also stifled the sharing of ideas, both of older works, which did not receive wide circulation due to limited press runs, and of newer works, since the guilds proved to be inflexible in the face of new literary movements and ideas.5

This system of literary privileges came to a crashing halt in 1789 when the French Revolution set in motion a course of events that would fundamentally change the political landscape of France, including the dissolution of the monarchy and the royal privileges that sprang forth from its divine absolutism. The Deceleration of the Rights of Man and the Citizen, issued on August 26, 1789, declared that “the free communication of thought is one of the most precious rights of man. All citizens can, therefore, speak, write, and print freely.”6

In freeing the presses, it appears that the National Assembly intended to break the monopolistic hold of the book guilds, allowing the great literary works of the Enlightenment to be printed and circulated freely, as well as allowing new works to be published without censorship. The result, however, was far different. Having essentially dissolved all copyright, pirating of new and older works became widespread. Although slanderous and libelous pamphlets circulated widely, the publication of books came to a virtual halt as both authors and publishers found that rampant pirating made the publishing of books economically unfeasible. Rather than foster creativity, the freedom of the presses stifled creativity.

This crisis in publishing fostered by the political upheavals of the French Revolution naturally required a resolution. In 1793, the National Assembly passed legislation to restore copyright to authors. Unlike the privilège d'auteur of the Old Regime that had invested publishing privileges in the hands of authors and publishers indefinitely, however, the Declaration of the Rights of Genius allowed the author, his or her heirs, and any who had acquired the manuscript by contract to have publication rights only for the author's lifetime plus ten years. At that point, the work would pass to the public domain.

Although the decision drew upon the rhetoric of Diterot and the sanctity of the author's creative work, the Declaration substantially incorporated the concepts and even the words of Condorcet, striking a somewhat uneasy balance between the two.7 Authors would be granted a temporary monopoly on the publication of their work as an incentive to foster new ideas, while the limitations on that monopoly allowed democratic access to the nation's cultural and scientific inheritance. Progress, it was decided, would depend on the free and equal access to enlightenment. Authors and publishers would now have the ability to enforce their unique privilege, no longer based on royal decree, but for the good of the people.8

Information Revolution

Having set out the intellectual positions of Diderot and Condorcet, and seen how the French Revolution precipitated the change from the initial state of publishing in France before the Revolution (Diderot) to the state of publishing after the Revolution (Condorcet), let us now take this analytical framework and apply it to the Information Revolution of the last few decades in the United States. As this paper hopes to make clear, the tension between these two ideas continues to play itself out in the present, but here the process moves in the opposite direction than was evident during the French Revolution.

Similar in many respects to the state of copyright in France following the Revolution and before the creation of the droit moral, and echoing the British copyright tradition first codified in the Statute of Anne, American copyright laws, grounded in the Constitution, were designed to give authors a limited monopoly on the reproduction of their works in order to foster the development of scientific and cultural ideas. Following much of the thinking of Condorcet, the Constitution attempted to strike a delicate balance between users and creators, aimed toward the public good.9

The crisis that changed American copyright during the Information Revolution was not political upheaval, as was the case during the French Revolution, but rather the emergence of reproductive technology, first in the form of the photocopier, and later audio and video recording devices, such as the tape deck and the VCR, and finally the personal computer, the development of the Internet, and peer-to-peer file transfer software such as Napster. This development in technology, as much as the dissolution of copyright during the French Revolution, created a crisis, or at least the perception of a crisis, in the publishing industry, here defined not simply as book publishers, but also film and record companies.

Many have raised the question of whether these technologies in fact create a crisis in the publishing industry. Let us take Napster as an illuminating example. Social commentators such as John Perry Barlow have pointed to the fact that the proliferation of freely available music may actually produce a greater demand for commercial music.10 In support of this claim, he and others point to the increase in record sales over the last few years despite the development of online music transfer software. They also point to earlier misguided crusades to ban technology, such as the film industries failed attempt to stop the production of VCRs in the early 1980s. Film executives feared that the new technology, pioneered by Sony, would essentially wipeout the movie market, since consumers could easily record movies for themselves. The result, however, was not a decrease in the number of moviegoers, but actually an increase in movie attendance, and the beginning of a whole new market of rental tapes. Similar fears over photocopy machines and audio tapes also did not bring forth the rampant pirating envisioned by book publishers and record companies.

There are, however, some weaknesses in these arguments. First of all, we must approach these analogies with some skepticism. The reproductive technologies of the past, such as the VCR and the audiotape, could never reproduce a video or audio recording in exact detail. Each new dubbed cassette is, by the very nature of the magnetic tape on which it is recorded, a generation removed from the original. In digital media, however, exact reproduction is possible. Rather than magnetic impulses, digital text and recordings, whether they are e-books, songs, or full-length motion pictures, are simply an array of ones and zeros. They can be reproduced in exact detail without loosing any quality. Thus the ability to reproduce digital text and recordings is fundamentally different from reproduction in the past.

Secondly, simply because the VCR and the audio tape did not lead to substantial revenue loses for the film and recording industries is no guarantee that that trend will continue into the digital age. Few have argued that the ability to share and reproduce software programs, for example, has encouraged people to go out and buy those same software programs in the same way that recording of concerts leads to more record sales for performers. In support of this, consider that a recent survey by the San Francisco Chronicle showed that 78% of people who downloaded music from the Internet saw nothing wrong with the activity, and that only 21% said they bought most of the music they downloaded.11 So too, one must keep in mind that the recent availability of CD burners and MP3 players have only now begun to make pirating of music viable. Keeping the music on your hard drive is one thing. Making it available for play back on one's stereo or on a Walkman is something else altogether. It is simply premature to assess the impact of Napster on record sales based on current figures.

Whether the crisis of these technologies is merely an imagination of the record and film industries, or whether it is perhaps more real, as this paper suggests, the mere existence of this technology has regardless begun to have an effect on copyright in the United States over the last three decades. What has been the result? It appears that, in an attempt to defend their “intellectual property,” the music and film industries have lobbied Congress to pass more restrictive copyright laws, beginning with the lengthening of copyright from twenty-eight years from the time of publication, to life plus fifty years for an individual in 1976, to life plus seventy years for an individual in 1998. The Digital Millenium Copyright Act and recent lawsuits against Napster have also begun to clamp down on the proliferation of pirating. It is not a radical suggestion, then, that these laws are attempting to produce a more Diderot-like system, where the author might have perpetual copyright on his or her work, backed by legislation that limits technology and severely punishes offenders. In fact, the Sonny Bono Copyright Term Extension Act, as originally authored by the rock star's widow, called for copyright on works to extend in perpetuity.12 Modification of the bill, of course, lowered the limit. But this trend may very well continue into the future, until copyright in the United States does last indefinitely long. It is also not a radical suggestion to point out that, like in pre-Revolutionary France, this model of copyright has resulted in the consolidation of publication rights, not in the hands of authors, but in the hands of powerful publishers.

Conclusion

In summary, this paper has developed a basic model of analyzing these two periods of time, outlining in broad strokes the changes in copyright that occurred during the French Revolution and during the Information Revolution in the United States. In the former, political upheaval changed copyright in France from a Diderot-like model to a Condorcet-like model, granting authors limited copyright aimed toward fostering creativity for the common good. In the United States, the emergence of lucrative film and recording copyrights, coupled with the emergence of potentially damaging reproductive technology, have brought about changes in copyright from the original Condorcet-like model to a Diderot-like model, where record and film corporation have lobbied for greater protection and lengthier copyrights. As mentioned above, at no time in history have these two conflicting theories found their fullest expression. However, taken as trends rather than firm positions, the evidence of the past and of the present seem to bear out the thesis of this paper tolerably well. What of the future? It seems that, unless firmly opposed by those who are sympathetic with the theories of Condorcet and the intentions of the Constitution, the trend toward more restrictive copyrights and the view of ideas as the most inviolable form of property, as expressed by Diderot 250 years ago, will continue indefinitely into the future.