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

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160 university of ottawa law & technology journal www.uoltj.ca the idea of rights. The principal argument is that by making a product, in this case a medicine, more widely available, information about it will be more widely disseminated, resulting in it being of benefit to a larger group of people, thereby increasing overall welfare. 85 Though Fichte is clear throughout his article that there is a difference between books and other forms of intellectual property, nevertheless, a parallel can be drawn here between medicine and the ideas contained in books. Just as the widespread distribution of medicine will improve overall health and therefore welfare, the more widely a book is distributed, the more widely the information contained in it will be disseminated, resulting in greater benefit to a greater number of people. The thief in the parable explains that a copyright regime (or a patent regime) does not maximise welfare because it impedes the dissemination of information. The fact that the thief must be “in continual flight” from the original inventor of the medicine symbolizes the wasted resources that are expended in the protection and defence of copyright and patent rights. 86 The next argument addresses those who claim that without a protection of intellectual property, the incentive for creative people to produce novel products, original ideas, and creative works will be removed. The thief’s response to this argument is a combination of romanticism and realism. He argues that the author, inventor, and artist need no incentive other than honour and their muse. Hidden within this argument is a view of human nature which sees the urge to create and to achieve recognition as the primary motivators of the human creative faculty. As well, the utilitarian also relies on the principle of fairness – he argues that it would be unfair to other publishers that the author be granted an exclusive right in her work. Once the author has received some return on her work and has thereby been made better off than if she had not produced it, it is only fair that others be provided with the opportunity to capitalize on the work’s popularity by reproducing. Finally, the thief argues that copyright works against the public interest by encouraging the creator or author to distribute her own work. The very idea of publicity and public distribution is threatened by the protection of copyright, not only because the author is inexperienced in the sale of books and so less efficient than the publisher in distributing them, but also because the protection of copyright puts publishers at the mercy of fickle authors who could take their business to another publisher at any time. Presumably, this dependence of publishers on authors is what is implied when the thief explains to the Caliph that the author would have stolen from the publisher if he could have done so. 87 From a rhetorical point of view, the parable presented by Fichte is clearly intended to appeal to the reader’s intuitions to demonstrate that the utilitarian view is untenable. Of course, Fichte’s rhetoric does little to threaten contemporary utilitarian views. The utilitarians that Fichte addresses are intent on preventing the recognition of any form of intellectual property right, a view that is not advocated by many utilitarians today. Nevertheless, Fichte’s caricature of utilitarians bears a few remarks. 85. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 31. 86. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 32. 87. Fichte, “Proof of the Illegality of the Reproduction of Books,” supra note 2 at para. 35.
(2008) 5:1&2 UOLTJ 141 <strong>Commentary</strong> on Fichte 161 In Fichte’s view, the utilitarian position reduces to moral relativism. According to Fichte, utilitarianism depends on the identification of human interests. By maximizing the fulfilment of these interests, social welfare can be improved. However, completely opposing moral conclusions can be reached depending on how these interests are characterized. For instance, the thief in the parable characterizes the interests of the author and the publisher in erroneous but intuitively appealing ways. For instance, the thief claims that an author’s welfare would be improved through greater dissemination of the author’s ideas and works. Since dissemination can be maximized through unauthorised reprinting, the author’s welfare is increased through the denial of the author’s property interests. In essence, Fichte regards utilitarianism as dependent on a particular psychological anthropology. The welfare calculus is affected by whether we take the romantic view that the author derives happiness merely through communication of her creativity, the practical view that an author is a labourer seeking to use her creative talents as a means for earning money, or the view that the author derives happiness from the recognition of her authorship of the work. Fichte seeks to oppose such a relativistic approach with a principled, rights-based approach. * 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” Having surveyed the arguments for the protection of intellectual property set out in “Proof of the Illegality of the Unauthorised Reprinting of Books,” I will now trace the development of these ideas in Fichte’s later works by addressing three main issues. First, in this early article, Fichte fails to distinguish between ethics and law. This differs from the Kantian approach—an approach later adopted by Fichte—which makes a clear distinction between morality and legality. Second, Fichte provides little justification in this article for the uniqueness of the form in which ideas are expressed. However, his later epistemological views will provide a fuller justification for the originality of each individual’s thoughts. Finally, I will argue that the article on the reprinting of books foreshadows the development of Fichte’s unique argument, presented in the Foundation of Natural Right, that the idea of right is grounded in self-consciousness. In addition, although Fichte’s early work in many ways parallels the development of Kant’s thought on the nature of right, I will also highlight the differences between them. 9.1. The Relationship Between Morality and Legality Fichte’s later legal philosophy is characterized, like Kant’s, by a separation between morality and legality. The failure to clearly distinguish between these two domains in “Proof of the Illegality of the Unauthorised Reprinting of Books” is therefore one of the work’s most noteworthy characteristics. As Luc Ferry points out, as late as 1793, when Fichte wrote the Beiträge zur Berichtigung der Urtheile des Publicums über die französische Revolution [Considerations to Correct the
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