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

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152 university of ottawa law & technology journal www.uoltj.ca the author’s need to harmonise her thoughts with those of others. This will to communicate, which ensures that the acquisition of the author’s ideas is not a violation of the author’s right, is expressed in Fichte’s assertion that no-one could wish to “teach facing empty walls” or “write books which no-one reads.” 53 In contrast to the right of the public to use the ideas contained in the work, the right to appropriate and use the form in which the ideas are expressed is not transferred to the purchaser. The form of the expression is a creation of the author; it is a unique expression of her personality. It follows from this that any use or appropriation of the form entails a violation of the personality of the author. Insofar as the reprinting of a book without the permission of the author represents an appropriation of the author’s personality against her will, it is an infringement of her individuality, which is protected as her natural right in virtue of her personhood. With regard to the uniqueness of ideas, Fichte argues that while ideas can be appropriated by others, the connections between ideas and the way in which the ideas are expressed are unique to every individual. He uses two arguments to prove this proposition. First, he argues that from a probabilistic point of view, it is highly unlikely that two people who do not know each other well would connect ideas or represent them in the same way. 54 His second argument is that, not only is it highly unlikely that two people would structure their thoughts in the same way, in fact, in absorbing ideas from others or from the external world, it is impossible that these thoughts be given the same form or be connected to other thoughts in the same was as they were in the minds of others. This is because ideas must be represented through images, and the only images available to the individual are her own. Without access to the minds of others, there can be no similarity between the connections of ideas in the mind of one individual and the connections in the mind of another. Whenever a person reads a book, the ideas contained in it are appropriated by the reader into his thoughts and given the unique form that the reader’s mind generates by analogising the ideas of the author with the ideas and connections between ideas present in the mind of the reader. As Fichte says, “everything that we are to think must be thought in terms of the analogy with our other ways of thinking,” 55 and as a result, our appropriation of the ideas in a book necessarily involves giving them a new form unique to the reader. It would seem to follow from this argument that the appropriation of the way in which the author expressed a series of ideas is a violation of the unique personality of the author, who has given form to ideas that no one else was capable of giving them. Fichte expresses this conclusion somewhat obscurely by claiming that, because it is impossible for another to appropriate the form of ideas given by the author to them, the author could not have intended that the form of the thoughts and the means by which they are expressed be transferred to the reader. Through this obscure formulation, Fichte emphasizes the innate right of the individual to control aspects of her own personality. One could argue that if it is impossible for a reader to appropriate the form given to ideas by the author, then the reproduction of these ideas ought not 53. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 6. 54. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 8. 55. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 8.
(2008) 5:1&2 UOLTJ 141 <strong>Commentary</strong> on Fichte 153 to be forbidden, since no reader of an illegitimate reproduction could appropriate the personal imprint of the author contained in the expression of the ideas. However, at issue is not the reader’s understanding of the ideas, but rather the representation of the form of the expression as authorised by the author. The production of an unauthorised edition is a violation of the author’s right because, while it acknowledges that she is the creator of the communication, it ignores the author’s right to the form, i.e., the fact that the unique form she has given to the communication of an idea is a representation of a unique aspect of her personality. As Fichte later states, the problem is not that the illegitimate publisher fails to acknowledge that the author wrote the words, but rather, that he fails to recognise her status of author, 56 and thereby the imprint of her personality on the words. This difference can be made clearer if we recall the distinction between the Enlightenment concept of author and earlier conceptions of authorship. If the author is merely the vessel for some external creative inspiration, then the reproduction of the author’s work poses no problem since the author was not its source. But if the author is considered as providing her own inspiration, then the reproduction of the author’s work without her permission fails to recognise that she is the source of the ideas, as attested to by the unique form that she has given to the communication. Hidden behind Fichte’s argument is a view about the nature of right itself. In this first section of his argument, Fichte does not appeal to the actual practice of authors and publishers or to existing law. Rather, he appeals to what can be deduced a priori from the fact that each person is a unique individual. He points out that the uniqueness of each individual precludes others from claiming as their own those things which express the individual’s unique personality. The hidden premise of this argument is that the nature of humans as free and unique individuals entails that their unique personality be free from interference by others. In the case of their physical person, this means recognition of rights in physical property, since the appropriation of the physical property of another would entail violation of the bodily integrity of the person who possesses the object. In the case of intellectual property, the idea of right entails recognition of a right in the form in which ideas are expressed, since the appropriation of this form without permission is a failure to recognise that this form could only arise from the unique manner in which the individual connects ideas and represents them to herself. It is from this idea of right and the nature of human creative expression that Fichte derives the two rights of the author: her right to be recognised as the author of the work and her right to exclude others from appropriating that work. 57 In deriving an a priori right to intellectual property, Fichte provides a more elaborate explanation of a rights-based justification for copyright than Kant. For while Kant contents himself with arguing against the legality of reprinting primarily based on the relationship between the publisher and the author, in which the former is the authorised representative of the latter, 58 Fichte’s arguments lead back to a rights-based understanding of law and a rejection of competing 56. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 11. 57. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 9. 58. Kant, “Von Der Unrechtmäßigkeit des Büchernachdrucks, “ supra note 9 at p. 79. Kant also describes this relationship in terms of the “mandate” given to the publisher by the author (see Immanuel Kant, The Metaphysics of Morals, Mary Gregor, ed. (Cambridge University Press, 1996) at p. 72).
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