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

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142 university of ottawa law & technology journal www.uoltj.ca 143 1. INTRODUCTION 145 2. HISTORICAL CONTEXT OF FICHTE’S ARTICLE 147 3. FICHTE’S PLACE IN GERMAN PHILOSOPHY 148 4. THEORIES OF INTELLECTUAL PROPERTY AT THE TIME OF FICHTE 151 5. PROOF OF THE EXISTENCE OF A RIGHT IN BOOKS 151 5.1. The a priori Proof of the Existence of Copyright 154 5.2. The Proof of the Argument a posteriori 155 5.3. The Relationship Between Author and Publisher 156 6. REJECTION OF THE UTILITARIAN APPROACH 157 7. OTHER FORMS OF INTELLECTUAL PROPERTY AND THE REJECTION OF THE LABOUR THEORY OF PROPERTY 159 8. THE PARABLE 161 9. TOWARDS A THEORY OF RIGHT: THE SEEDS OF FICHTE’S THEORY OF RIGHTS IN THE “PROOF OF THE ILLEGALITY OF THE UNAUTHORISED REPRINTING OF BOOKS” 161 9.1. The Relationship Between Morality and Legality 162 9.2. The Originality of Ideas as Explicated in Fichte’s Epistemology 165 9.3. Fichte’s Intersubjective Conception of Property Guarantees Property For All, Including Authors 168 10. CONCLUSION: THE ORIGINALITY OF FICHTE’S VIEWS
(2008) 5:1&2 UOLTJ 141 <strong>Commentary</strong> on Fichte 143 <strong>Commentary</strong> on Fichte’s “The Illegality of the Unauthorised Reprinting of Books”: An Essay on Intellectual Property During the Age of the Enlightenment Graham Mayeda 1. INTRODUCTION The unique aspects of Johann Gottlieb Fichte’s (1762–1814) legal theory only crystallised into a coherent theoretical whole with his publication, in 1796, of the Foundations of Natural Right. 1 Nevertheless, it is instructive to look at his earlier works, such as the present essay on the reprinting of books, since these foreshadow some of the ideas that would later emerge. Picking up on this development in Fichte’s thought, my explication of Fichte’s article will serve two functions. First, it indicates those elements unique to Fichte’s argument that will be taken up again in later works. Second, it articulates Fichte’s rights-based natural law approach to copyright law, which is both novel and distinctly modern. Fichte’s work remains relevant to contemporary debates about intellectual property because, in addition to articulating a rights-based theory of copyright, it provides a critique of competing theories. As we will see, Fichte rejects Locke’s labour theory of property because it fails to capture the idea that creative works are unique expressions of the creator’s thought and expression. Fichte also spends considerable time combating the theory of utilitarianism, which has established itself today as the principal justification for protecting intellectual property. In “Proof of the Illegality of the Unauthorised Reprinting of Books” he does this in two ways. First, he states that there is absolutely no need to consider arguments about the utility of the reprinting of books if it can be shown that the practice of reprinting is a violation of the idea of right itself. Fichte thus addresses the shortcomings of utilitarianism as the foundation of a legal and moral theory. Second, he demonstrates the shortcomings of the utilitarian position by exposing the contradictions that arise within the arguments of its advocates. Fichte also discusses many other important issues in modern copyright law in his article. Although he does not do so explicitly, in his rejection of his 1. Johann Gottlieb Fichte, Foundations of Natural Right (Cambridge University Press, 2000) [page references are to the German edition as cited in the English translation: Immanuel Hermann Fichte (ed.), Fichtes Werke, vol. 3 (Berlin: Walter de Gruyter & Co., 1971).]. (2008) 5:1&2 UOLTJ 141
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