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

158 university of ottawa law & technology journal www.uoltj.ca
idea behind a mechanical device, there is a limit to the ways in which the physical
elements of the device can be structured so that the machine functions correctly.
In contrast, the thoughts contained in books could have been expressed in a
different way, or the ideas could have been arranged and connected in a
different order. Because the work involved in the production of mechanical
devices is similar to that involved in the production of the physical aspects of the
book – its binding, printing, etc. – as Fichte mentioned earlier, it is not protected
by law. The arrangement of the physical elements of the device does not bear
the unique imprint of the craftsman, being determined by the necessity of the
functioning of the machine. As a result, the craftsman has no property right in
the device.
To some degree, Fichte also rejects the labour theory of intellectual
property developed by John Locke. For something to be the property of an
individual, it is not sufficient that that individual’s labour be mixed with it. Rather,
in the case of intellectual property, the thing protected must be a communication
with an original form expressing the personality of the creator. Presumably, Fichte
intends to carry over this same view to physical property. Physical property is not
mine simply because I have laboured on it. Rather, it is mine because to take it
away would be a violation of the imprint I make on it through my intention or
will to have it as my own. Indeed, in his later works, this is precisely what Fichte
maintains. A house, for instance, is a “surrogate” for the owner’s body, and as
such bears his imprint in the form of an intention to make use of the contents at
some future time. 83
Fichte acknowledges that because the form of a mechanical device or
a work of art does not bear the imprint of its creator in the same way as does
the form of thoughts expressed in a book, the principle on which the creator’s
interest in the concept behind the machine or work is protected is different
from the case of an author’s copyright in a book. The difference between books
and mechanical devices is reinforced by the fact that it is often quite simple to
discover the principle behind the functioning of a device once one has purchased
it. Unlike the case of books, for which the form is unique and irreproducible, a
reproduction of a mechanical device, while perhaps not identical with the original,
is nonetheless similar enough that the reproduction will serve the same function
as the original. Thus, because of the ease of reproducing a mechanical device,
and because of the different relationship between the form and concept in the
case of such a device in comparison to a book, a different type of protection for
the creator’s interest in preventing the unauthorised reproduction of mechanical
devices and works of art is required.
In Fichte’s era, the type of protection available was the system of privilege
mentioned above. According to Fichte, the justification for the extension of state
protection to a mechanical device is based on fairness. It is unfair that the inventor
of the device should be deprived of profits gained from the reproduction of the
device he has created. 84 Although Fichte does not fully articulate the reason for
this unfairness, it appears that he believes that the creator should not be deprived
of his property interest in his invention simply because of the contingent fact that
83. Fichte, Foundations of Natural Right, supra note 1 at p.242.
84. Vaver, “The Future of Intellectual Property Law,” supra note 44 at p. 2.