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

(2008) 5:1&2 UOLTJ 141
<strong>Commentary</strong> on Fichte 157
In Fichte’s rejection of Reimarus’ utilitarian position, we see in effect
a rejection of copyright as a purely economic right and the recognition of the
moral rights of the author. While Roberta Rosenthal Kwall attributes the first
articulation of the moral rights view to Immanuel Kant, 76 Kant articulates only
one aspect of moral rights, namely, the right of disclosure. As Kwall explains, this
right entitles the author to refuse to publish a work until he or she deems it ready
for publication. 77 This aspect of moral rights is clearly espoused by Kant when
he argues that the author has the exclusive right to choose who will present his
discourse to the public. 78
In contrast, Fichte comes nearer to articulating the origin of moral rights
in the unique form that the author has given the work, which reflects the unique
nature of his thought processes. As well, Fichte justifies the author’s intellectual
property right in a book by means of a different aspect of moral rights, namely,
the right to be recognized as the author of the work (also called a right of
paternity). 79 Admittedly, Kant does allude to the right of paternity in his 1885
essay on the illegality of reprinting, in which he states that a book is like a speech,
and “it is a contradiction to deliver in one’s own name a speech that, by one’s
own announcement and in keeping with the public’s demand, is to be the speech
of another.” 80 However, Kant does not explain what the unique aspects of this
speech are that express the personality of the author, thereby forbidding others
to appropriate it. In contrast, Fichte’s forceful justification of moral rights based
on the recognition of the author’s personality expressed in the form of the work
foreshadows the modern view that “the essence of a moral rights injury lies in its
assault upon the author’s personality, as that personality is embodied in the fruits
of her creation.” 81 This justification has been the foundation of developments in
continental European copyright law, which has tended to protect moral rights,
although these rights have not traditionally been given direct recognition in
Anglo-American law. 82 *
7. OTHER FORMS OF INTELLECTUAL PROPERTY AND THE REJECTION OF
THE LABOUR THEORY OF PROPERTY
Fichte contrasts books with other forms of intellectual property. He explains
that products of mechanical art differ from books because the form of mechanical
art is not an expression of the unique personality of the creator. Rather, its form
is determined by the concept behind the functioning of the device. While those
who craft mechanical devices can have greater or less skill in the execution of the
76. Roberta Rosenthal Kwall, “‘Author-Stories’: Narratives Implications for Moral Rights and Copyright’s Joint Authorship
Doctrine,” (2001) 75:1 Southern California Law Review 1–64, at p. 19.
77. Roberta Rosenthal Kwall, “Copyright and the Moral Right: Is an American Marriage Possible?” (1985) 38:1
Vanderbilt Law Review 1–100, at p. 5.
78. Kant, “Von der Unrechtmäßigkeit des Büchernachdrucks,” supra note 9 at p. 81.
79. Kwall, “Copyright and the Moral Right,” supra note 77 at pp. 5, 7.
80. Kant, Practical Philosophy, supra note 9 at p. 34.
81. Kwall, “‘Author-Stories,’” supra note 76 at p. 24.
82. For a comparative history of French and American copyright law in this regard, see Jane C Ginsburg, “A
Tale of Two Copyrights: Literary Property in Revolutionary France and America,” in Sherman and Strowel, Of
Authors and Origins, supra note 12, 131–158.