IV – Le droit d’auteur
A – La vocation impérialiste du droit d’auteur
Le champ du droit d’auteur est vaste et son histoire épique. Elle a eu, pour ou contre elle les plus grandes plumes. Le droit d’auteur est désormais dans toutes les cause, il est au confluent de nombreux intérêts : celui des auteurs, des créateurs, de l’industrie culturelle, des exploitants d’immatériels de tous genre. Il a suivi l’évolution du commerce du livre. Il intéresse désormais les importateurs de iPod, les producteurs de logiciels ou de films, les sites de partage ou les importateurs de chocolat.
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i – Une histoire colonisatrice
a – Des privilèges au droit d’auteur
Charles Lyon-Caen: Lois françaises et étrangères sur la proprieté littéraire
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French legislation concerning right of authors and artists originated with privileges originally granted by the king to booksellers. The privilege to publish a work was not necessarily exclusive and was given to Parisian (as opposed to provincial) booksellers only. Its duration was determined on a case by case basis, as were any penalties incurred by those interfering with the privilege. In the 16th century, the question arose as to whether a privilege might be renewed upon its expiration. Non-privileged publishers resisted such a possibility and Parlaiments often annuled royal decisions to do so. The annulments, however, had effect only as between the parties.
1618: King agrees that no further renewals of privilege would be granted to Parisian booksellers unless the works in questions were somehow augmented or changed. The position proved unsustainable. Renewals continued to be granted for new works and in 1647, the king announced his intention to return to the pre-1618 state of affairs.
1665: Decision that no renewals would be granted for old books unless there had been some significant augmentation or change to them.
How to distinguish between old and new writers?
1671: Decision of the Conseil that old writers were those who had died before the invention of the printing press (1470: publication of first books in France).
Non-privileged booksellers continued to complain but to no avail.
1725: Louis Héricourt publishes a memoire in favor of the perpetuity of privilege, claiming that it derived from the rights of the authors themselves, which were akin to property.
1761 and 1777: The Royal Council issues a number of celebrated decisions which consecrate, in certain measure, the rights of authors.
1761: The grandaughters of Fontaine obtain a privilege over his works once those of the bookseller expired – their right was deemed hereditary.
At the same time, writers begin to resist their dependance upon booksellers – the latter alone had the right to sell books.
1777: The Royal Council issues six decisions regulating the rights of authors, publishers, and the public domain. The preambule of one of these qualified as property the right of the author to publish his work but at the same time called upon une grace fondeé en justice (a contradiction). The duration of privileges was fixed. For old works, one final privelege could be granted. For new works, a bookseller could obtain a privilege of 10 years at the very least and the life of the author at most. Privileges accorded to authors were perpetual unless conceeded to booksellers. Privileges could now be given to Parisian as well as to provincial publishers.
By the time of the French Revolution there was still no clear notion of an author’s rights – authors only had the ability to claim a privilege which could always be refused. Artists faced the same situation.
The French Revolution suppressed privilege and brought about the recognition of authors’ rights.
1793: the right of authors and artists to the reproduction of their works is qualified as property: life + 10 years.
1866, duration is extended.
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b – Un droit colonisateur
Ricketson, “The Development of International Copyright Relations
| 1. Privileges and Early c/r laws
States in Europe react to printing press by granting printing rights and privileges to printers and publishers. Authors' interests were not a priority because of (a) the antiquity of prominent texts and (b) living authors were often supported by the patronage of the wealthy.
UK: 1st to protect authors in the Statute of Anne (1709); it granted a short period of protection.
Early c/r protection in UK/Europe had a pecuniary motivation: it protected investments made into printing a work
this article is generally looking at the period from 1700-1900
2. The development of national c/r laws
French revolutionary laws are the first to explicitly recognize the the rights of authors and dramatic performers. These laws had two characteristics: (1) Exclusive performance rights for the creators of theatrical productions until 5 years post mortem; and (2) Exclusive reproduction rights granted to authors of all manner of works until their death
Author's rights start to be seen as property rights in their work. Protection of these interests is linked with incentivizing intellectual advancement.
The development of authors' rights ended protection by way of imperial privileges. Expanding French influence helped spread these ideas, which were eventually adopted by Germanic and southern European countries.
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