1. Part III Individualism, the Original Genius and the Pragmatic Distributor

2. Kyrnos, by me as I practice my art let a seal be set on these words, and never will they be stolen unobserved. Nor will anyone substitute something worse for the good that is present, and everyone will say, “The words are Theognis of Megara's. Among all mankind he is named.” Theognis, IEG 19-26, as cited in Louise Pratt, The Seal of Theognis, Writing and Oral Poetry, 116 T HE A MERICAN J. P HIL. 171, 171 (1995).

3. Aristonothos krater, 7 th century BC

4. [t]he Gilgamesh epic was a great literary success for hundreds of years. It was copied and translated again and again – perhaps it even influenced the Homeric epics. Yet during all that time and among all those people, nobody seems to have asked who the author of this work was, although it was carefully crafted and, in its own way, a great literary achievement. Likewise, there are no individual authors of Hittite and Ugaritic epics, or in the Old Testament. Walter Burkert, Die Leistung eines Kreophylos: Kreophyleer, Homeriden und die archaische Heraklesepik, 29 MH 74, 75 (1972)

5. [The construction of Homer feed] our desire for a transcendent originary unity.” B ENNETT, T HE A UTHOR 35

6. P RINTING P RIVILEGES, T RADE AND C ENSORSHIP

7. Mainz, Germany, 1439

8. Whereas such an innovation, unique and particular to our age and entirely unknown to those ancients, must be supported and nourished with all our goodwill and resources and [whereas] the same Master Johannes, who suffers under the great expense of his household and the wages of his craftsmen, must be provided with the means so that he may continue in better spirits and consider his art of printing something to be expanded rather than something to be abandoned, in the same manner as usual in other arts, even much smaller ones, the undersigned lords of the present Council, in response to the humble and reverent entreaty of the said Master Johannes, have determined and by determining decreed that over the next five years no one at all should have the desire, possibility, strength or daring to practice the said art of printing books in this the renowned state of Venice and its dominion, apart from Master Johannes himself. Johannes of Speyer’s Printing Monopoly, Venice (1469), at 1, in P RIMARY S OURCES ON C OPYRIGHT (1450-1900) (emphasis added)

9. privilege – a lex made for a privus

10. WIPO-Turin LL.M. Annual Conference, October 10, 2012 Typography had made the written word into a commodity. The old communal oral world had split up into privately claimed freeholdings. The drift in human consciousness toward greater individualism had been served well by print. W ALTER J. O NG, O RALITY AND L ITERACY : T HE T ECHNOLOGIZING OF THE W ORD 131 (Methuen 1982)

11. Individual Privilegies Bishop of Würzburg, Rudolf von Scherenberg (1479) Conrad Celtis John Scolar (1518) Richard Pynson (1518)

12. WIPO-Turin LL.M. Annual Conference, October 10, 2012 To booksellers: it is not without great cost that these Missals have issued from our press into the light of day. Therefore, if any man induced by greed or avarice, or motivated by the frenzy of envy, presume to print them or put on sale copies printed elsewhere, let him be warned, lest he incur the penalties of the privilege granted to us by the King’s Majesty. See Th. Wierzbowski, Polonica xv ac xvi seculorum (Warsaw 1889), no. 2076 (Printing Privilege from the King of Poland to Johann Haller, 1516)

13. WIPO-Turin LL.M. Annual Conference, October 10, 2012 certain seditious and heretical books rhymes and treaties are daily published and printed by divers scandalous malicious schismatical and heretical persons, not only moving our subjects and lieges to sedition and disobedience against us, our crown and dignity, but also to renew and move very great and detestable heresies against the faith and sound catholic doctrine of Holy Mother Church.... Stationers’ Charter (1557), in I A T RANSCRIPT OF THE R EGISTERS OF THE C OMPANY OF S TATIONERS OF L ONDON, 1557-1640 xxviii (E. Arber, 1875-94)

14. Decree Establishing the Venetian Guild of Printers and Booksellers (1549)

15. Edict of Moulins by Charles IX (1566) Book Trade Regulations and Incorporation of the Parisian Book Trade (1618)

16. The privilege system “was never established with the principal aim of protecting and securing the interest of the author.” Laurent Pfister, Author and Work in the French Print Privileges System: Some Milestones, in P RIVILEGE AND P ROPERTY. E SSAYS ON THE H ISTORY OF C OPYRIGHT 123 (Ronan Deazley, Martin Kretschmer and Lionel Bently eds., Open Book Publishers 2010)

17. A LBRECHT D ÜRER, I NGENII, AND THE “S UPER -A RTIST ”

18. ... in a famous encounter with Guido Reni, Michelangelo Merisi da Caravaggio threatened to split his rival skull if he did keep stealing his maniera – manner or style... Michelangelo Merisi da Caravaggio, 1571-1610

19. [... ] beware, you envious thieves of the work and inventions of others, keep your rash hands from the works of ours [... ] Albrecht Dürer (in a Latin colophon printed on the final leaf of the 1511 complete edition of his Life of the Virgin, Large Passion, and Small Passion) as cited in K OERNER, T HE M OMENT OF S ELF -P ORTRAITURE 213 Albrecht Dürer, 1471-1528

20. The foreigner, who sold prints before the town hall, some with Albrecht Dürer’s monogram that were fraudulently copied from him, shall be bound by oath to remove all the said monograms and sell none of them here; and if he refuses, all his said prints shall be confiscated as counterfeit [ain falsch] and taken into the hands of the council. Nuremburg City Council’s Ratsprotokoll of January 2, 1512, as cited in K OERNER, T HE M OMENT OF S ELF -P ORTRAITURE 209.

21. And so Philip once said to his son, who, as the wine went round, plucked the strings charmingly and skilfully, ‘Art not ashamed to pluck the strings so well?’ It is enough, surely, if a king have leisure to hear others pluck the strings, and he pays great deference to the Muses if he be but a spectator of such contests. P LUTARCH, L IFE OF P ERICLES II.1.5, in P LUTARCH ’ S L IVES (Bernadotte Perrin trans., Harv. U. Press 1916) [y]ou may turn out a Phidias or a Polyclitus, to be sure, and create a number of wonderful works; but even so, though your art will be generally commended, no sensible observer will be found to wish himself like you; whatever your real qualities, you will always rank as a common craftsman [banausos] who makes his living with his hands. L UCIAN OF S AMOSATA, T HE D REAM (160-164 A. D. circa), in T HE W ORKS OF L UCIAN OF S AMOSATA 7 (Henry W. Fowler and Francis G. Fowler trans., Forgotten Books 2007) (1905) No generous youth, from seeing the Zeus at Pisa or the Hera at Argos, longs to be Phidias or Polycleitus; nor to be Anacreon or Philetas or Archilochus out of pleasure in their poems. P LUTARCH, L IFE OF P ERICLES, at II.1.6

22. Albrecht Dürer’s Melancolia I

23. Works of art are not to be judged by the amount of useless labour spent on them but by the worth of the knowledge and skill which went into them. F RANCISCO DEL H OLLANDA, D A P INTURA A NTIGUA 59 (Edição de "Renascença Portuguesa" 1918)

24. the super-artist

25. [Michelangelo is] the first example of the modern, lonely, demonically impelled artist – the first to be completely possessed by his idea and for whom nothing exists but his idea – who feels a deep sense of responsibility towards his gifts and sees a higher and superhuman power in his own artistic genius.” H AUSER, II T HE S OCIAL H ISTORY OF A RT 60.

26. It is to be noted, however, that an understanding and practiced artist can display more of his great power and art [gwalt vnd kunst] in little things of rough and rustic form that many other can in their large works. Only powerful artist will understand that I speak truth in this strange saying. For this reason, something one man sketches in a day, with a pen on a half-sheet of paper, or engraves with his graver in a little block of wood, will be more artful and excellent than other man large work, which he makes with great diligence in a whole year. And this gift is wonderful. For God often allows one man to learn and understand how to do something well, for which no equal can be found in his time, and perhaps no one will come before him and after him none shall soon come. A LBRECHT D ÜRER, A ESTHETIC E XCURSUS, as cited in K OERNER, T HE M OMENT OF S ELF -P ORTRAITURE 213

27. It is to be noted, however, that an understanding and practiced artist can display more of his great power and art [gwalt vnd kunst] in little things of rough and rustic form that many other can in their large works. Only powerful artist will understand that I speak truth in this strange saying. For this reason, something one man sketches in a day, with a pen on a half-sheet of paper, or engraves with his graver in a little block of wood, will be more artful and excellent than other man large work, which he makes with great diligence in a whole year. And this gift is wonderful. For God often allows one man to learn and understand how to do something well, for which no equal can be found in his time, and perhaps no one will come before him and after him none shall soon come. A LBRECHT D ÜRER, A ESTHETIC E XCURSUS, as cited in K OERNER, T HE M OMENT OF S ELF -P ORTRAITURE 213

28. Man was conscious of himself only as a member of a race, people, party, family, or corporation – only through some general category... [i]n Italy this veil first melted into air... man became a spiritual individual and recognized himself as such.... J ACOB B URCKHARDT, I T HE C IVILIZATION OF THE R ENAISSANCE IN I TALY 143 (S. G. C. Middlemore tr., B. Nelson and C. Trinkaus eds., Harper and Row 1958)

29. B EN J ONSON, I NDIVIDUALISM, P LAGIARISM, AND A MBIGUITIES

30. “To Prowle, the Plagiary” B ENJAMIN J ONSON, E PIGRAMS LXXXI, in J ONSON, T HE W ORKS 220 Benjamin "Ben" Jonson, 1572-1637 The Workes of Benjamin Jonson in folio (1616)

31. [... ] during his lifetime [Jonson] contended vigorously against various forms of literary theft, introducing to the language a number of words, still in common currency, to describe the practice. After his death he was ironically regarded in many quarters as something of a thief himself. Donaldson, ‘The Fripperie of Wit’, at 123.

32. François de Lauze, Apologie de la danse v. Berthélemy de Montagut, Louange de la danse

33. Having read most of our English Plays, as well ancient as those of latter date, I found that our modern Writers had made Incursions into the deceas’d Authors Labours, and robb’d them of their Fame. [... ] I know that I cannot do a better service to their memory, than by taking notice of the Plagiaries, who have been so free to borrow, and to endeavour to vindicate the Fame of these ancient Authors from whom they took their Spoiles. G ERARD L ANGBAINE, M OMUS T RIUMPHANS : OR, T HE P LAGIARIES OF THE E NGLISH S TAGE ; E XPOS ’ D IN A C ATALOGUE A4 (1688)

34. “The Domenichino Affair” E LIZABETH C ROPPER, T HE D OMENICHINO A FFAIR : N OVELTY, I MITATION, A ND T HEFT I N S EVENTEENTH -C ENTURY R OME 118-120 (Yale U. Press 2005)

35. [... ] and new will be the poem when the weaving of the plots is new, new the solutions, new the episodes in between, no matter how well known is the material and how much it has been treated by others. For the novelty of the poem lies in the form rather than the material. On the other hand, a poem cannot be called new in which the names and the people are fictional, but the plot and its working are taken from others. T ORQUATO T ASSO, I S CRITTI SULL ’A RTE P OETICA 186 (E. Mazzali 1977) (1587) Torquato Tasso 1544-1595

36. [t]he new perception of the literary text that emerged at the end of the Renaissance both shared in and, more important, helped to shape a new mentality. Seeking authorizing origins in the past, Renaissance culture encountered his own human historicity. The consequences of this discovery were felt with a special force in its literature, for it was in literature that the contest between individual innovation and the authority of tradition was recast as a struggle for independence from sacred authority, and it was in literature that Renaissance thought first achieved an autonomous, secular identity. But the very nature of this achievement may have obscured the extent to which it is contributed to an intellectual revolution. By obtaining a cultural autonomy from systems of authorized truth, literature gave up its right to be authoritative. D AVID Q UINT, O RIGIN AND O RIGINALITY IN R ENAISSANCE L ITERATURE : V ERSIONS OF THE S OURCE 219 (Yale U. Press 983)

37. K ANT, O RIGINALITY AND M ISPERCEPTIONS

38. The mind of a man of Genius is fertile and pleasant field, pleasant as Elysium, and fertile as Tempe; it enjoys a perpetual Spring. Of that Spring, Originals are the fairest flowers: Imitations are of quicker growth, but fainter bloom. [... ] hope we, from Plagiarism, any Dominion in Literature; as that of Rome arose from a nest of Thieves? E DWARD Y OUNG, C ONJECTURES ON O RIGINAL C OMPOSITION. I N A LETTER TO THE A UTHOR OF S IR C HARLES G RANDISON 7 (A. Millar. and J. Dodsley 1759) Edward Young 1681-1765

39. A Genius differs from a good Understanding, as a Magician from a good Architect; That raises his structure by means invisible; This by the skilful use of common tools. Hence Genius has ever been supposed to partake of something Divine. Nemo unquam vir magnus fuit, sine aliquo afflatu Divino. Y OUNG, C ONJECTURES ON O RIGINAL C OMPOSITION, supra note 640, at 7.

40. genius is properly the faculty of invention [... ] by which a man is qualified [... ] for producing original works of art and which is given by the mental power of imagination. A LEXANDER G ERARD, A N E SSAY ON G ENIUS 8 (W. Strahan 1774)

41. Genius is the talent (or natural gift) which gives the rule to Art. Since talent, as the innate productive faculty of the artist, belong itself to Nature, we may express the matter thus: Genius is the innate mental disposition (ingenium), through which nature gives the rule to Art. [... ] [Genius] is not a mere aptitude for what can be learned by a rule [but] a talent for producing that for which no definite rule can be given [... ] hence originality must be its first property.” I MMANUEL K ANT, K RITIK DER U RTEILSKRAFT § 46, in K ANT ’ S K RITIK OF J UDGMENT 188(J. H. Bernard trans., Macmillan and Co. 1892) (1790). Immanuel Kant, 1724-1804

42. the severity of the accusation indicates an anxiety of originality becoming an obsession, with the concomitant fears that the sacred well of individual genius can be poisoned or simply drawn dry by intruders. Nick Groom, Forgery, Plagiarism, Imitation, Pegleggery, in P LAGIARISM IN E ARLY M ODERN E NGLAND 77 (Paulina Kewes ed., Palgrave 2003)

43. William Lauder, An Essay on Milton Use and Imitation of the Moderns, in his Paradise Lost (1750)

44. Coleridge: The Damaged Archangel [Coleridge’s] borrowings contradict the logic of Romanticism: he is the brilliant and innovative poet who claimed imaginative origins for his work but who borrowed covertly from the texts of other writers. M AZZEO, P LAGIARISM IN THE R OMANTIC P ERIOD 7-8.

46. After all, the Immortal Bard would never stoop to copy the works of another. Once again, originality becomes the key. J AMES B OYLE, S HAMANS, S OFTWARE, AND S PLEENS : L AW AND THE C ONSTRUCTION OF THE I NFORMATION S OCIETY 230 ft. 12 (Harvard University Press 1996)

48. [w]hatsoever then he [the man] removes out of the state that Nature hath provided, and left it in, he hath mixed his Labour with, and joined to it something that is his own, and thereby makes it his Property. J OHN L OCKE, T WO T REATISE OF G OVERNMENT § 27 (1690), John Locke, 1632-1704

49. When a man by the exertion of his rational powers has produced an original work, he has clearly a right to depose of that identical work as he pleases, and any attempt to take it from him, or vary the disruption he has made of it, is an invasion of his right of property. W ILLIAM B LACKSTONE, II C OMMENTARIES ON THE L AWS OF E NGLAND 405 (Clarendon Press 1766) Willam Blackstone, 1723-1780

51. WIPO-Turin LL.M. Annual Conference, October 10, 2012 “public sphere” – social process giving birth to a new sense of civil society as a collectivity distinct from the family or the state. J ÜRGEN H ABERMAS, T HE S TRUCTURAL T RANSFORMATION OF THE P UBLIC S PHERE : A N I NQUIRY INTO A C ATEGORY OF B OURGEOIS S OCIETY 57-67 (Thomas Burger trans., MIT Press 1991)

52. the question of literary property...

53. [t]here seems [... ] to be in authors a stronger right of property than that by occupancy; a metaphysical right, a right as it were of creation, which should from its nature be perpetual; but the consent of nations is against it, and indeed Reason and the interests of learning are against it... For the general good of the world, therefore, whatever valuable work was once been created by an author, and issued out by him, should be understood as no longer in his power, but as belonging to the publick. J AMES B OSWELL, II B OSWELL ’ S L IFE OF J OHNSON, TOGETHER WITH B OSWELL ’ S J OURNAL OF A TOUR TO THE H EBRIDES (George B. Hill and Lawrence F. Powell eds., Clarendon Press 1934) (1791) Samuel Johnson, 1709-1784

54. Millar v. Taylor, 4 Burr. 2303, 98 Eng. Rep. 201 (K.B. 1769) William Murray, 1st Earl of Mansfield, 1705-1793

55. [... ] from the moment of publication, [literary works] are thrown into a state of universal communion [... ] like land thrown into the highway, it is become a gift to the public. Tonson v Collins, 96-98 Eng. Rep. 169, 185, 1 Black W. 321, 334 (K. B. 1762) (Justice Joseph Yates) Joseph Yates (1722-1770)

56. In a word, I have no difficulty to maintain that a perpetual monopoly of books would prove more destructive to learning, and even to authors, than a second irruption of Goths and Vandals. Hinton v Donaldson, Mor 8307 (1773) (Lord Kames) Henry Home, Lord Kames, 1696-1782

57. Science and Learning are in their Nature publici juris, and they ought to be as free and general as Air or Water. Donaldson v. Becket (1774) Hansard, 1st ser., 17 (1774): 999 (Lord Cadmen) Charles Pratt, 1st Earl Camden, 1714-1794

58. [a]ll the plaintiffs can claim is, the ideas which the book communicate... [t]hese, when published the world is as fully in possession of as the author was before. Tonson v. Collins, 96-98 Eng. Rep. 169, 185, 1 Black W. 321, 334 (K.B. 1762 The identity of a literary composition consisted in the ideas or “sentiments” and the “style” or “language,” so that “the same conceptions, cloathed in the same words, must necessarily be the same composition....” B LACKSTONE, II C OMMENTARIES 406 F RANCIS H ARGRAVE, A RGUMENT IN D EFENCE OF L ITERARY P ROPERTY (W. Otridge 1774) Francis Hargrave 1741–1821

60. [i]t is thus obvious, that according to common judgment, the public regards and must regard itself as being in joint possession of a published work: and that which has been published in print, can no less than manuscripts in earlier times, be considered publici iuris. Johann Albert Heinrich Reimarus, Der Bücherverlag in Betrachtung der Schriftsteller, der Buchhändler und des Publikums abermals erwogen, D EUTSCHES M AGAZIN, 1.Bd., at 383-414 (1791). Johann Albert Heinrich Reimarus, 1729-1814

61. Once expressed, it is impossible for [ideas] to remain the author’s property... It is precisely for the purpose of using the ideas that most people buy books [... ] it is too obvious that the concept of intellectual property is useless. My property must be exclusively mine: I must be able to dispose of it and retrieve it unconditionally. Let someone explain to me how that is possible in the present case. Just let someone try tacking back the ideas he has originated once they have been communicated so that they are, as before, nowhere to be found. Christian S. Krause, Uber den Büchernachdruck, 1 D EUTSCHES M USEUM 415 (1783), as cited in Woodmansee, The Genius and the Copyright, supra note 635, at 443-444.

62. The author and the owner of a copy can both say with equal right of the copy: it is my book! - but in different senses. The former is regarding the book as a written work or speech, whereas the latter sees in it simply the mute instrument for the delivery of the speech to him, or to the public – i.e. he regards it as a copy. Immanuel Kant, Von der Unrechtmäßigkeit des Büchernachdrucks [On the Injustice of Counterfeiting Books], in 5 B ERLINISCHE M ONATSSCHRIFT 403-417 (1785)

63. [w]hat is certainly offered for sale through the publication of a book, then, is first of all the printed paper, to anyone, that is, who has the money to buy it or a friend who will lend it to him; and secondly, the content of the book, namely to anyone who has enough brains and diligence to appropriate it. As soon as the book is sold, the former ceases to be the property of the author [... ] and passes exclusively to the buyer, since it cannot have more than one lord and master. The latter, however, the book’s content, which on account of its ideal nature can be the common property of many, and in such a manner that each can possess it entirely, clearly ceases upon publication of the book to be the exclusive property of its first proprietor [... ], but does continue to be his property in common with many others. What, on the other hand, can absolutely never be appropriated by anyone else, because this is physically impossible, is the form of the ideas, the combination in which, and the signs through which they are presented. [... ]. From this follow two rights of the author: not only [... ] the right to prevent anyone from disputing his ownership of this form (the right to demand that everyone recognize him as the author of the book), but also the right to prevent anyone from infringing upon his exclusive ownership of this form and taking possession of it. Johann Gottlieb Fichte, Proof of the Illegality of Reprinting: A Rationale and a Parable, in B ERLINISCHE M ONATSSCHRIFT 443, 449-452447 (1793) (emphasis added). Johann Gottlieb Fichte, 1762-1814

64. to guarantee scientists and artist against theft and enable them to benefit from the protection of their property G EORG F RIEDRICH W ILHELM H EGEL, P HILOSOPHY OF R IGHTS § 69 (Thomas M. Knox trans., Clarendon Press 1967) (1821) exception and limitation to copyright (“[t]hose engaged in the propagation of knowledge of all kinds, in particular those whose appointed task is teaching, have as their specific function and duty [... ] the repetition of well-established thoughts, taken up ab extra and all of them given expression already... [t]he same is true of writings devised for teaching purposes and the spread and propagation of the sciences”), derivative works (“whereby in turn they make what they have learnt [... ] into a 'thing' which they can alienate, very likely form of its own in every case... [t]he result is that they can regard as their own property the capital asset accruing from their claim for themselves of the right to reproduce their learning in books of their own”), transformative uses (“[t]he ease with which we may deliberately change something in the form of what we are expounding or invent a trifling modification in a large body of knowledge or a comprehensive theory which is another's work, and even the impossibility of sticking to the author's words in expounding something we have learnt, all lead of themselves [... ] to an endless multiplicity of alterations which more or less superficially stamp someone else's property as our own”), and plagiarism (“[t]o what extent is such repetition of another's material in one's book a plagiarism?... [t]here is no precise principle of determination available to answer these questions, and therefore they cannot be finally settled either in principle or by positive legislation... [h]ence plagiarism would have to be a matter of honour and be held in check by honour”). Id., at § 69 (72-74). Georg Wilhelm Friedrich Hegel 1770-1831

65. There seems, however, to be an impression that there is a sort of common right to print and publish books; but the slightest reflection must convince any one that this would be a great injustice. The reason of it is found simply in the fact that a book, regarded from one point of view, is an external product of mechanical art (opus mechanicum), that can be imitated by any one who may be in rightful possession of a copy; and it is therefore his by a real right. But, from another point of view, a book is not merely an external thing, but is a discourse of the publisher to the public, and he is only entitled to do this publicly under the mandate of the author (praestatio operae); and this constitutes a personal right. I MMANUEL K ANT, M ETAPHYSIK DER S ITTEN [M ETAPHYSICS OF M ORALS ] § 31 (1797) (William Hastie trans.)

66. This right of the author is, however, not a right to the object, that is, to the copy (for its owner is certainly entitled to, say, burn it in front of the author); rather, it is an innate right, invested in his own person, entitling him to prevent anyone else from presenting him as speaking to the public without his consent.... Kant, On the Injustice of Counterfeiting Books 416. if one modifies a book written by someone else (abridging it, or adding to it, or reworking it) in such a way that it would actually be wrongful to bring it out under the name of the author of the original, then such a modification carried out in the publisher's own name does not constitute reprinting and is therefore not forbidden. Id., at 417.

68. Denis Diderot, Letter on the Book Trade. A historical and political letter to a magistrate on the book trade, its former and current state, its regulations, privileges, tacit permissions, censors, pedlars, the expansion of trade across the river and other subjects relating to literary laws (1763), Denis Diderot, 1713-1784 Simon-Nicholas H. Linguet, Opinion on the Ruling of 30 August 1777 Regarding Privileges (1777) manner

69. Every man owes to society the tribute of his physical and intellectual abilities in exchange for that which he receives from the other individuals who comprise it. The man of genius, who communicates his ideas to society, is only returning, in exchange, the product of those ideas that he has received from society. Jean-François Gaultier de Biauzat, Memorandum for Consultation by the Booksellers and Printers from Lyon, Rouen, Toulouse, Marseille, and Nisme, Concerning Book Trade Privileges and their Prolongations, at 41 (Imprimerie Alexandre-Antelme Belion 1776). Jean-François Gaultier de Biauzat, 1739-1815

70. the differing purposes of these privileges ought to be reflected in their duration [so that the author] shall retain the privilege for himself and his heirs in perpetuity, so long as he does not transfer it to a bookseller; in which case the duration of the privilege shall be reduced, as a consequence of that transfer, to the life of the author.” Arret du Conseil d'Etat du Roi, Portant Règlement sur la durée des Priviléges en Librairie [Decree of the King's Council of State, containing regulations on the duration of book trade privileges] Art. 5 (August 30, 1777).

71. Authors are not securely at the core of the new [Revolutionary] literary property regime; rather the public plays a major role. Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tulane L. Rev. 991, 1006 (1990).

72. The most sacred, the most legitimate, the most unassailable, and if I may say so, the most personal of all properties, is the work, the fruit of the mind of a writer; yet it is a property of a totally different kind than other properties [... ] [Once the work is disclosed to the public], the writer has associated the public with his property, or rather he has transferred it entirely to it. However, because it is highly fair that the men who cultivate the domain of the mind, retrieve some fruits from their work, it is necessary that, during their whole lives and some years after their deaths, no one may without their consent, dispose of the product of the genius. But also, after the fixed delay, the property of the public commences, and everyone has to be able to print, publish the works which have contributed to enlighten the human spirit. Isaac René Guy Le Chapelier, Report made by M. Le Chapelier, on behalf of the Constitutional Committee, on the Petition of the Dramatic Authors, in the Session of Thursday 13 January 1791, with the Decree rendered in this Session, at 16 (National Printing Press 1791) (emphasis added) Isaac René Guy Le Chapelier, 1754-1794

73. [Upon publication the work] is no longer the property of its producer [because] in the nature of things there is no literary property right in a work once it has been given over to the public. Rapport fait au nom de la Commission rassemblée pour la rédaction d’un projet de loi sur la propriété d’arts, de sciences et des lettres, par le Comte de Ségur, Moniteur du 28 mars 1837, reprinted in Fernand Worms, 2 Etude sur la Propriété Littéraire 228, 244, 249 (Lemerre 1878) (Conseiller d’Etat Riché)

74. Before the publication, the author has an undeniable and unlimited right. Think of a man like Dante, Molière, Shakespeare. Imagine him at the time when he has just finished a great work. His manuscript is there, in front of him; suppose that he gets the idea to throw it into the fire; nobody can stop him. Shakespeare can destroy Hamlet, Molière Tartuffe, Dante the Hell. But as soon as the work is published, the author is not any more the master. It is then that other persons seize it: call them what you will: human spirit, public domain, society. It is such persons who say: I am here; I take this work, I do with it what I believe I have to do, [...] I possess it, it is with me from now on.... Victor Hugo, speech as a Chair of the Association Littéraire Internationale [International Literary Association] (1870). Victor Marie Hugo 1802-1885

75. Intellectual property does not merely encroach on the public domain; it cheats the public of its share in the production of all ideas and all expressions. Joseph Prudhon, Les Majorats Littéraires: Examen d’un Projet de Loi Ayant pur but de Créer, au Profit des Auteurs, Inventeurs et Artistes, un Monopole Perpétuel, in L E C OMBAT DU DROIT D ’ AUTEUR 140, 152-53 (Jan Baetens ed., Les Impressions Nouvelles 2001) Pierre-Joseph Proudhon, 1809-1865

77. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea [... ] He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me [...] society may give an exclusive right to the profit arising from [inventions] as an encouragement to men to pursue ideas which may produce utility. Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813), in T HE W RITINGS OF T HOMAS J EFFERSON (Albert Ellery Bergh ed., The Thomas Jefferson Memorial Association of the United States 1907). Thomas Jefferson, 1743-1826

78. [f]or John Adams before the Revolution or for James Madison after his term as president, the goal was democratic self- governance... [f]or Benjamin Franklin as a young inventor or for Thomas Jefferson in his retirement, the goal was the Progress of Science. L EWIS H YDE, C OMMON AS A IR 228 (Macmillan 2010)

79. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. [...] It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good. Thomas B. Macaulay, A Speech Delivered in the House of Commons (Feb. 5, 1841), in VIII T HE L IFE AND W ORKS OF L ORD M ACAULAY 201 (Longmans, Green, and Co. 1897) Thomas Babington Macaulay, 1st Baron Macaulay, 1800-1859

80. Monopolies [... ] ought to be granted with caution, and guarded with strictness against abuse [... ] A temporary monopoly... ought to be temporary [... ] Perpetual monopolies of every sort are forbidden not only by the genius of free Governments, but also by the imperfection of human foresight. James Madison, Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments (1819), in Aspects of Monopoly One Hundred Years Ago, 128 H ARPER ’ S M AGAZINE 489-490 (1914). James Madison, Jr. 1751-1836