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

168 university of ottawa law & technology journal www.uoltj.ca
the illegality of the reproduction of books. In that essay, Fichte said that the
reproducer of mechanical goods has a right to make a living. This right requires
placing a limit on the property right in mechanical devices. 124 Only in this way
can the right of the producer of mechanical devices be balanced with the right
of the inventor to make a living by means of his mechanical invention. What does
Fichte mean by the right to make a living? Fichte does not deal with intellectual
property directly in the Foundations of Natural Right. But the author falls within
a category of property rights holders which Fichte calls the “artists.” For Fichte,
the social contract guarantees that the individual will always be able to survive
based on her labour. In the case of artists, this means that the artist is guaranteed
to be provided with the appropriate products necessary to produce her wares:
“[T]he state must arrange things so that the artist, in exchange for all of his labor
or articles, receives the quantity of products he needs in order to live during the
time that he is making the articles.” 125 As Fichte explains, money is a sign of the
value of particular products. Thus, in the case of the author, the state must ensure
that the author is able to earn enough money so that she can live to continue her
labour (assuming that what she produces is desired by others in the state). This
means that the state must ensure that she can make money through her efforts in
order to buy what she needs—paper, pen, food, drink, lodging, clothing, etc. A
regime that respects property rights in intellectual property is thus justified as a
system of arrangements that guarantee that the author is able to receive money
in proportion to the service that she is rendering to society. 126 While Fichte speaks
mainly about the right of the reproducer of mechanical works to make a living, it
is clear that, as an artist, the author, too, must have a means of earning a living
from her trade. The copyright system is a means for ensuring that this is possible.
To summarize, in this section, I have pointed out three of the ways in
which Fichte’s article on the illegality of the reprinting of books differs from or
foreshadows some of his later philosophical views. As we have seen, “Proof of
the Illegality of the Unauthorised Reprinting of Books” seems to be consistent
with Fichte’s early views about the continuity between morality and legality, a
view he later denied. I have also explained how Fichte’s view about the originality
of the form of ideas presupposes some of his later epistemological views. Finally,
as we have seen, Fichte’s intersubjective understanding of property requires that
the state organize its intellectual property regime to ensure that authors are able
to live from their trade. I turn now to a few brief conclusions.
*
10. CONCLUSION: THE ORIGINALITY OF FICHTE’S VIEWS
For Fichte, creative works express the individuality of their creators, and the
recognition of this individuality, which forms the basis of Fichte’s later intersubjective
theory of legal rights, entails the recognition of a property interest in creative
works. Or to use Vaver’s words to articulate Fichte’s theory, Fichte recognizes that
124. Fichte, “The Illegality of the Reproduction of Books,” supra note 53 at para. 22.
125. Fichte, Foundations of Natural Right, supra note 1 at p. 204.
126. Fichte emphasizes the importance of there being an exact balance between raw products received by the
artist and finished articles produced. Fichte, Foundations of Natural Right, supra note 1 at p. 204.