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

[Seth Johnson]

> http://skipper.gseis.ucla.edu/students/dwalker/html/projects/documents/IS-200_Heirs_of_the_Enlightenment.rtf

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.