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

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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.
(2008) 5:1&2 UOLTJ 141 <strong>Commentary</strong> on Fichte 155 5.3 The Relationship Between Author and Publisher If the author cannot transfer the form of the book to the publisher, and if the ideas cannot be transferred without in-depth study on the part of the publisher, Fichte questions what the publisher gains from an agreement with the author. He does not acquire a physical object since the manuscript handed over by the author is of little value. What is of value, however, is the right to use the manuscript to make available to the public the opportunity of acquiring the ideas contained in it. In other words, the publisher gains the right to the usufruct of the property of the author. The publisher thus acts not on his own behalf, but on behalf of the author as her representative. 64 That this is what is transferred from the author to the publisher in return for money is again evident from the actions that are permitted and proscribed in practice. The fact that the publisher must seek the permission of the author to print subsequent editions or extend print runs attests to the fact that the contract between the author and the publisher does not transfer the ownership of the book to the publisher, but merely gives him a license to use the book for a limited purpose. Furthermore, the fact that our disappointment in a poorly written book is directed towards the author and not the publisher provides additional proof of the continuing property right of the author in the book. It is to the author that we turn for compensation for a useless, unstimulating or unoriginal book, not to the publisher, who has no control over the content of the book. The deceit of an inferior book is not on the part of the publisher, who is merely the author’s representative, but rather it is a result of the actions of the author. 65 The illegitimate publisher of a work thus makes use of the author’s property without entering into a contract that sets out the terms in accordance with which the publisher represents the author. As Fichte explains, the illegitimate publisher . . . appropriates, not the property of the author, nor his ideas (this he cannot do for the most part, for if he were not ignorant, he would pursue an honest trade), nor the form of the ideas (this he could not do, even if he were not ignorant), but rather the use of the property. He operates in the name of the author, without receiving instructions from him, and without coming to an agreement with him, and arrogates the profits which arise from this representation. He acquires in this way a right to which he is not entitled, and so interferes with the author’s exercise of his exclusive right. 66 Here, Fichte’s understanding of the relationship between author and publisher is reminiscent of Kant’s argument in his essay on reprinting. In his paper, Kant also distinguishes between the ownership of the material of the book and the ownership of its intellectual aspect. However, here too, a slight difference is introduced between Kant and Fichte’s views. Fichte argues that the ownership of the intellectual aspect derives from the unique form that the author has given to the ideas that he expresses. The reprinter of a book appropriates the author’s 64. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 14. 65. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 15. 66. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 16.
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