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

144 university of ottawa law & technology journal www.uoltj.ca
opponent’s arguments, Fichte articulates what has come to be known as the
moral rights of the author. Moreover, in articulating these rights, he goes further
than his contemporaries in providing a theoretical justification for these rights
based on the nature of the author’s creative process. Fichte also argues that
the recognition of property rights has implications for fair competition—it would
be unfair for the creator of a unique work to remain uncompensated for the
time invested in the creation. 2 Fichte’s theory of property is distinguished from
that of his contemporaries because it gives a prominent role to the relationships
between people, rather than focusing solely on the individual. In my view, the
intersubjective approach that Fichte develops is quite different from the view
of Immanuel Kant and other contemporary rights-based legal theories. These
theorists only take into account intersubjectivity in two regards: first, they consider
that an individual’s rights are limited by the equal rights of another; second,
they consider that corrective justice requires that the defendant is only liable for
the damage suffered by the plaintiff— i.e., damages serve the primary function
of correcting the wrong suffered by the plaintiff. 3 Law deals with the fact that
two isolated individuals have come into contact, and its purpose is to regulate
the results of this contact. In contrast, Fichte sees intersubjectivity as playing a
more substantive role in constituting rights. For him, we can only conceive of
the individual in the context of a relation with others, 4 which leads Fichte to the
conclusion that we are bound to others “by our very existence.” 5 Law does not
simply arise from the necessary encounter of isolated individuals, but from the
fact that human existence is necessarily intersubjective existence. 6
Finally, Fichte’s essay on copyright tries to answer some of the questions
that have constantly plagued rights-based views of intellectual property: What is
the unique intellectual aspect of a creative work? How does this unique aspect
relate to the individuality of its creator? and How does this originality give rise to
a property interest? The answers to these questions raise difficult issues about
the functioning of our intellect. Fichte’s unique epistemology provides an original
answer about the nature of this functioning and, as a result, it provides an original
answer to these questions. Unlike his contemporary, Kant, Fichte considers the
creation of knowledge to involve both the external object and the imprint of
the free individual who perceives it. While Kant denied the possibility of true
objectivity because of our inability to know things as they are independent of our
perceptions of them, Fichte considered objects as real limits on the power of our
2. Johann Gottlieb Fichte, “Beweis der Unrechtmäßigkeit des Büchernachdrucks: Ein Räsonnement und eine
Parabel (1793), (2008) 5:1&2 University of Ottawa Law & Technology Journal 141 at pp. 171-197;
Johann Gottlieb Fichte, “Proof of the Illegality of the Unauthorised Reprinting of Books: An Argument
and a Parable,” trans. Graham Mayeda, (2008) 5:1&2 University of Ottawa Law & Technology Journal 141 at
pp. 171-197 at para. 22.
3. See Ernest J Weinrib, The Idea of Private Law (Harvard University Press, 1995); and Arthur Ripstein, Equality,
Responsibility and the Law (Cambridge University Press, 1999), for examples of contemporary rights-based
legal theories.
4. Fichte, Foundations of Natural Right, supra note 1 at p. 45:
[T]he concept of individuality is a reciprocal concept, i.e. a concept that can be thought only in
relation to another thought, and one that (with respect to its form) is conditioned by another—
indeed by an identical—thought. This concept can exist in a rational being only if it is posited as
completed by another rational being. Thus this concept is never mine; rather, it is—in accordance
with my own admission and the admission of the other—mine and his, his and mine; it is a shared
concept within which two consciousnesses are unified into one.
5. Fichte, Foundations of Natural Right, supra note 1 at p. 45.
6. Fichte, Foundations of Natural Right, supra note 1 at pp. 37–38.