Commentary on Fichte's “The Illegality of the Unauthorised ... - uoltj

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labour on physical things is a manifestation of our freedom. 48 The state ought
to protect property rights either because property manifests the exercise of
a free will or because “private property rights are crucial to the satisfaction
of some fundamental human needs.” 49 Fichte’s view can be made to fit with
such a rights-based theory of intellectual property. His view is that intellectual
works manifest a form that expresses the unique personality of the individual,
and recognition of this unique form is the basis for the author’s right in the
work. However, Fichte’s view is not an exact fit with the traditional articulation
of the rights-based approach. Fichte does acknowledge that an intellectual
work is the expression of an individual’s unique personality. However, in his
a priori arguments for the proof of the existence of copyright, he provides a
phenomenological justification for this. In his view, the individuality of each
person’s ideas is evident in the inability of any person to use the images or
form of the ideas of another to express his own ideas. The inaccessibility of
the minds of others, which is part of our everyday experience, thus leads us
to the conclusion that the form of each person’s expression is unique. This
view differs from Kant’s, which is based on the idea that a state that does not
protect property fails to recognize the freedom of the individual. For Kant,
freedom entails freedom over objects and hence possession. If the state does
not protect property, human freedom is limited by the need to constantly
protect one’s possessions. 50 Unlike Fichte, Kant’s view of property does not
depend on a recognition of the unique imprint of a person’s individuality on
his creative works.
Fichte’s view also differs from Hegel’s more elaborate justification of
property. For Hegel, the recognition of property in things that we possess is
the recognition of the individual’s power over the external world, and hence, a
manifestation of his freedom. Or in Justin Hughes’ words, “[t]hrough society’s
acceptance of the individual’s claims upon external objects, possession becomes
property, and the expression of the individual becomes more objective.” 51 The
recognition of a right to property is an increase in freedom because, for Hegel,
“social recognition of a person’s claims to private property demonstrates
that the individual’s claims comport with that social will.” 52 Fichte does not
provide a justification for the recognition of a property right on the basis of a
recognition of a fundamental aspect of human nature such as freedom that is the
foundation of a normative system. Instead, his view is based on our experience
of generating ideas. Only later, as we will see when we examine the relationship
between Fichte’s views in “Proof of the Illegality of the Unauthorised Reprinting
of Books” and his subsequent works, will we understand how this essay
foreshadows Fichte’s view that right is related to self-consciousness. It is only
in these later works that we come to see how a legal right can be derived from
the phenomenological observation that the form of a work is the expression of
the unique personality of an individual.
48. For modern interpretation of this view, see Margaret Jane Radin, Reinterpreting Property (University of
Chicago Press, 1993); and Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988).
49. Fisher, “Theories of Intellectual Property,” supra note 40 at p. 171.
50. See Ernest Weinrib, “Poverty and Property in Kant’s System of Rights” (2003) 78:3 Notre Dame Law Review
795–828.
51. Hughes, “The Philosophy of Intellectual Property,” supra note 46 at pp. 333–334.
52. Hughes, “The Philosophy of Intellectual Property,” supra note 46 at p. 334.