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

154 university of ottawa law & technology journal www.uoltj.ca
utilitarian conceptions. This has led Benoit to claim that Fichte appears “more
Kantian than Kant.” 59
5.2. The Proof of the Argument a posteriori
Having deduced the right of the author in her work from the nature of the book
and the idea of right entailed by a recognition of human individuality, Fichte then
turns to the actual practices of publishers and authors to demonstrate that the
rights of the author that he has deduced a priori are able to justify this practice. He
examines each of the aspects of the book in turn: its physical aspect, its content,
and the form in which the content is expressed. With regard to the physical aspects
of the book, the existence of libraries demonstrates that the right of the author in a
book that has been sold to another is not in the physical object itself. If it were, then
the author would have a legitimate claim that libraries are a violation of her rights.
However, while it is evidently financially disadvantageous to the author, as the seller
of books, to have them available in libraries, the fact that the author has no right
to prevent the lending of books through libraries demonstrates that, with the sale
of the book, the right in the physical object has been transferred to another. 60 This
transfer of rights is also evident in the fact that the author has no right to prevent
the purchaser from destroying her book.
With regard to the right in ideas, the academic use of books demonstrates
that the author has no exclusive right in the content of the book. The ideas are in the
public domain, and they can be appropriated by others through study, portrayed
in various ways, and applied to different subject matters to yield new results. 61
This fact explains why it is permissible for a person to express the ideas of another
(for instance, those heard during a public lecture) in her own words. 62 In contrast,
plagiarism, i.e. the direct copying of the words used by another to express an idea,
is a violation of the author’s rights. In contrast to the views of Reimarus, Fichte’s
antagonist, plagiarism is forbidden, not because it fails to attribute the words to
the author, but because, in ignoring the fact that they were authored by another, it
denies the other’s right to the expression and thereby violates the very idea of right,
i.e. the idea that those things which express a person’s intellectual personality must
not be appropriated by another. It is not simply that the plagiarist fails to attribute
authorship, but that through this failure, he appropriates as his own what belongs
to another and thereby denies the other’s capacity for authorship. 63
Thus we see that the proscribed practices, such as plagiarism, as well as
the practices that are permitted, such as the lending of books, the destruction of
books, the use of their contents and the application of these ideas to new fields,
are consistent with Fichte’s assertion that the author has a right in the form of the
expression but not in the content of the ideas or the physical object once the latter
is sold to another.
59. Benoit, “En guise d’introduction au texte de Fichte,” supra note 7 at p. 99.
60. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 10.
61. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 10.
62. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 13.
63. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 11. It is interesting to
consider whether Fichte’s account of plagiarism is consistent with our modern understanding. The modern
concept of plagiarism seems broader than Fichte’s, since Fichte says that it is not plagiarism for an author to
repeat the ideas of another without attribution, as long as he does not use the author’s exact words. See
Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 12.