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

156 university of ottawa law & technology journal www.uoltj.ca
form without his permission, thereby violating his right to the form. However,
Kant characterizes the author’s right in the intellectual property of a work as a
right to choose whom he will permit to transmit his discourse to the public. For,
according to Kant, a book is a discourse of the author transmitted by means of the
authorised publisher to the public. 67 The unauthorised reprinter thus wrongs the
author by forcing the latter to discourse to the public against his will. 68 Reprinting
is thus a personal wrong against the author. 69
*
6. REJECTION OF THE UTILITARIAN APPROACH
Fichte quickly rejects the utilitarian justification for allowing the reprinting of
books. It appears that Reimarus’s primary argument against allowing the
protection of copyright was that the reprinting of books caused no harm to the
author or the publisher. Instead, it benefited them by making the author’s work
more widely known, thereby increasing her reputation. 70 Furthermore, Reimarus
argues that the protection of copyright is grounded in a contract between the
public and the author that allows for the author to profit from her work for a
period of time. 71 The reprinting of a book is not a violation of this contract
because it is consistent with the ultimate goal of enhancing social welfare by
maximizing the social benefits of creativity while providing a sufficient incentive
for the author, namely, increased name recognition. According to Reimarus’ view,
rights are created through the interaction between citizens, rather than being
inherent in each person as a free human being.
In contrast, Fichte grounds rights, not in contingent contracts, but in the
necessity of respecting human individuality. For him, it does not matter whether
it is good for society generally to have the contents of books disseminated in the
public domain. Any practice which denies a person’s individuality by forcing them
to give up what is theirs, that is any practice which forces them to give up their
property in a book, is a violation of right. 72 Fichte thus articulates the foundational
view of the natural rights theory that rights are innate and inalienable and derived
from the nature of human existence. 73 This right is not variable depending on
contingent, historically emergent social circumstances. Rather, it is eternal 74
because it is deduced from the unchangeable nature of human freedom. Thus,
Fichte points out that, had they wished, even the ancients could have protected
their works against reproduction. 75
67. Kant, “Von Der Unrechtmäßigkeit des Büchernachdrucks,” supra note 9 at pp. 80–81; and Kant, The
Metaphysics of Morals, supra note 58 at p. 72.
68. Kant, “Von Der Unrechtmäßigkeit des Büchernachdrucks,” supra note 9 at p. 81; and Kant, Practical
Philosophy, supra note 9 at p. 31.
69. Kant, The Metaphysics of Morals, supra note 58 at p. 72.
70. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 17.
71. Fichte does not attribute this whole argument to Reimarus. He merely says: “the right of the author which is
violated by the re-printer is [according to Reimarus] grounded [. . .] on an assumed contract of the author
with the public and on a Jesuitical mental reservation in it.” Fichte, “Proof of the Illegality of the
Reproduction of Books,” supra note 2 at para 17. However, I have tried to fill in the gap of the argument.
72. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 17.
73. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 17.
74. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 20.
75. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 20.