The exercise is obviously perilous because about 230 years separate us from the French Revolution. However, it is very likely that if they were to look at copyright today, De Boufflers, Le Chapelier, Lakanal and the philosophers of the Enlightenment who theorized on the subject in the 18th century would be saddened by the fate of the copyright they helped to create and consecrate.
First of all, because the results for the authors of this legislative device are more than mixed. If at the end of the 18th century, the property right granted to the author on his work was supposed to give him a financial and intellectual independence in relation to the patron on whom he often depended under the Ancien Régime, it must be noted that today only a small minority of authors manage to live thanks to the incomes generated by their works and that a great majority of authors are dependent on incomes generated by other activities, in particular of the “food” type. Professor Dietz, a great theoretician of German contract law, already sounded the alarm in the 1980s when he pointed out that too many authors were living below the poverty line and that social assistance had probably been more beneficial to authors than any copyright for their benefit.
Our revolutionary legislators would thus be pained to note that their rhetoric aiming at anchoring copyright in natural law in order to give it legitimacy in relation to the arbitrary granting of royal privileges was used as a flagship argument by traditionalist copyright thinking, This was seen as the consecration of a so-called “French-style” copyright (wrongly, in our opinion, because French law allows for other readings), making copyright sacred without sufficiently taking into account the concrete fate of authors. There have been a few attempts to correct the situation, notably by putting in place rules to protect authors from operators, such as the principle of granting proportional remuneration to the author. But unfortunately, the “proportion” has often remained minimal, since proportional remuneration does not mean that it is appropriate, as the Conseil d’Etat recently reminded us in a decision of November 15, 2022, sanctioning the French legislator who, despite the 2019 directive (which had tried to redress the situation for the benefit of authors, taking its inspiration from German law), had considered that the provisions of French law were sufficient to ensure fair remuneration for authors. As laudable as these protective rules are, they are unfortunately often not very effective in practice because authors do not like to turn against their financiers. “It is better not to bite the hand that feeds you”, as the saying goes. Here is a paradox of copyright in its traditionalist conception: copyright is sacralized, but authors’ pockets often remain empty!
In fact, in the current system, the real beneficiary of the copyright is most of the time the operator, the producer, the investor, who will systematically be assigned by the author the exploitation rights on the work for their entire duration (it is the logical consequence of the property, it can be fully assigned). The operators very early perceived the intuitive force of the putting forward of a natural right of property to the profit of the author: one will remember that when Diderot wrote in the 18th century his vibrant pleas in favor of the intellectual property, it was as a lawyer of the booksellers of province in their litigations against the booksellers of Paris, who were attributed the majority of the royal privileges. Equipped with the owner’s weapon, the operator is thus a strong winner: he will benefit as an investor from a very strong right whose rules and duration are drawn in relation to the physical author, creator of the work: one only has to think of the very long duration of the right (in particular in relation to the patent law) going up to 70 years after the author’s death. As it has been written, the role of the dispossessed author is often no more than to die in order to give a certain date to the expiration of the monopoly. And since authors have continued to live precariously despite the advent of a battery of rights for their benefit, operators will not cease to demand, on their behalf, a strengthening of copyright and its implementation. It is so much more effective in front of the decision-makers than to put forward the poor authors to ask for a reinforcement of prerogatives that are, de facto, exercised by the exploiters. Diderot’s intuitive argument has always remained very effective, especially when combined with the necessary guarantee of cultural diversity. The public opinion and the decision-makers do not always make the difference, the argument will also be used by the operators to ask for rights directly to their profit, with as a consequence the consecration of various rights for the investors: neighboring rights, sui generis, related rights, even immaterial rights which often keep their name silent, multiplying the prohibitions and the tolls in their favor. And we always ask for more: once these rights are established, they are then extended in time, like the neighbouring right of the phonogram producer whose duration was increased by the European legislator in 2011.
Recently, it is the master argument of the “value gap” that has proven to be successful: the value generated by the exploitation of online works must be shared. One can only intuitively subscribe to this claim, but when one looks at it more closely: sharing the value, yes, but for whose benefit? It remains to be seen whether the new obligations imposed on platforms by the European legislator following great pressure from the cultural industries will really improve the situation of authors who create content. This will most probably depend, as it has always done, on their reputation and their ability to negotiate fair remuneration with their operators when transferring their rights (and generally also incidentally on their ability to obtain legal advice, as the language of copyright and its complexity does not make the rules of the game easily understandable).
Faced with this, an alternative doctrine has put forward the necessity to think about the development of remuneration rights for the benefit of authors, in addition to or instead of the prohibition rights that often escape them, which could not be transferred, like the remuneration for private copy which, in addition, generates important incomes for authors. These proposals generally immediately attract the wrath of the guardians of the temple: they are offended by a distortion of copyright, they brandish the spectre of socialization, the downgrading of the author’s prerogatives, as if the right to remuneration would be a “lesser good” compared to the right to prohibit; if this were to be a loss of earnings, it would be for the operator who must share his profits more widely, not for the author. On the contrary, the latter generally benefits from a much more favorable redistribution percentage than the one he would have obtained by negotiating the transfer of his right. Some European courts have explicitly pointed this out when some operators have tried to challenge the extension of remuneration rights to authors by brandishing the famous “three-step test”, which is supposed to contain any restriction of exclusive rights. However, minds are gradually changing. For example, it will be remembered that ex officio licenses for patents were still very much frowned upon in the recent past, and that they have nevertheless imposed themselves as a useful and acceptable compromise to fight the COVID-19 pandemic.
Yet intellectual property in the eighteenth century mindset was indeed a property “of a kind quite different from other properties,” to use Le Chapelier’s phrase. It was a purposeful property, supposed to benefit society, and therefore could not be exercised in a discretionary or selfish way. It was supposed to allow authors to live from their pen while ensuring a diffusion of works within the social body and an intellectual and cultural development. As Pascal Attali pertinently reminds us (see on this blog “Le brevet, une invention de génie”, October 19, 2022), the Chevalier De Boufflers knew this well when he pleaded for the granting of limited property rights on inventions and succeeded in convincing the revolutionary legislator of the relevance of the model: the Zeitgeist of the revolution imposed on him the need to insist on the social contract and the collective benefit resulting from the enshrinement of a patent right in favor of the inventor.
One can also suppose that this loss of sight of collective interests in the subsequent evolution of copyright would also grieve our 18th century thinkers, and the fact that the points of friction between copyright and freedom of expression, the right to information and freedom of creation are multiplying today would scandalize them to the utmost. Indeed, one should not forget that the philosophers of the Enlightenment, who were ardent defenders of the rights of authors over their works, conceived most of the time copyright as a guarantee of freedom of expression and that for them, granting a right to authors meant allowing the dissemination of ideas and knowledge, the author having an educational mission, in charge of “enlightening” the citizens. Condorcet, in his Fragments sur la liberté de la Presse of 1776, translates it very well, estimating that “the happiness of men depends in part on their enlightenment, and the progress of enlightenment depends in part on the legislation of the printing press. Even if this legislation had no influence on the discovery of useful truths, it has a prodigious influence on the way truths are spread. It is one of the real causes of the difference which exists between the opinions of enlightened men, those of the public and the opinions of people who fill places. We will not quote here the long developments of the rapporteur of the law of 1791 Le Chapelier, because others did it brilliantly before us, underlining the importance of the interests of the community to see the rights of the public in his famous speech on “the most sacred, the most legitimate and the most unassailable property”. In our opinion, he would not have appreciated the abusive exploitation that some people have made of this formula, which has been systematically quoted out of context in order to make him the spokesman of a sacralized vision of copyright, whereas we know since the very serious works of Jane Ginsburg, Alain Strowel, Gillian Davies and many others that his speech was tinged with many utilitarian considerations.
It should also be recalled that the close link between copyright and the dissemination of knowledge is found in the fact that the second decree of 19 July 1793 was drawn up by the Committee of Public Instruction. It is therefore difficult to imagine that even today, exceptions to copyright for educational and research purposes remain confined within very narrow limits, that exceptions aimed at allowing text and data mining are not up to the level required by a true information society, that authors are forbidden to put a working version of their work online by the operators to whom they have assigned the rights, that technical barbs (called in copyright jargon “technical measures for the protection of works”) have come to restrict access to works while networks make it possible to set up virtual archives allowing everyone to access knowledge. Or that heirs are determined to forbid the use of works for creative purposes, thus putting an enormous brake on the freedom of expression of many artists and Internet users, and thus on cultural development. We can only welcome the Court of Justice of Rennes of May 10, 2021, which, on the basis of parody and freedom of expression, allowed an artist to use the character of Tintin in his paintings, a cultural icon to which one must be able to refer in an artistic context. Paraphrasing almost word for word the German Constitutional Court, which had validated certain creative uses of works on the basis of the freedom of creation, the court considered “that the alleged violation of the author’s rights is of small scale and entails only a minimal or even totally hypothetical financial loss for the right holders, who cannot oppose the freedom of creation, the interest of the artist in the free use of the work within the framework of a confrontation on the artistic terrain having to prevail over the simple financial interests of the right holders”. Such a reasoning would certainly have pleased our thinkers of the Enlightenment, they who undoubtedly made irreverence to the established cultural and political order the foundation of their commitment. In any case, they would certainly not have accepted that copyright be used as a means of censorship.
So, what can we conclude from these few thoughts? It seems to us that the discourse on copyright must evolve: we can no longer refrain from thinking about new protection mechanisms and from questioning certain principles that have not -at least not always- provided the expected results. The system requires at least an independent and objective audit, if only to (re)convince ourselves of the relevance of the model. It is also necessary to question the governance of the current system: indeed, it is not certain that, given the speed of technical and societal developments, the legislator and the courts are always in the best position to propose the necessary changes to the legal framework in place, and it will be necessary tomorrow to imagine other structures for the creation of the norm that can accommodate a broader reflection (we have thus pleaded for several years for the establishment of an independent institution within the European Union to anticipate and accompany the reforms of copyright as well as their implementations). In this context, “think tanks” are precious places of expertise: they must be fully heard and not only be used as an argument when the recommendations go in the right direction (and be politely ignored when this is not the case). To come back to copyright, an overhaul around the principles firmly anchored in international human rights law would seem to us, because of their universality, to be a good way to go: guaranteeing a right of access to science and culture as well as protecting the material and moral interests of creators. Let us bet that De Boufflers, Le Chapelier, Lakanal and the enlightened thinkers of the copyright of the 18th century, whose ideas had undoubtedly a universalist vocation, would not have anything to say about it!
Christophe Geiger
Professor at the University Luiss Guido Carli (Rome)