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

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Becker 17 and Johann Gottfried Herder 18 among others.
The era in which Fichte published his article in the Berlinische
Monatsschrift was characterised by the emergence of the author in the modern
sense of the word, i.e., as the creator of an original text. Prior to and during
the Renaissance, the author was considered more of an artisan than an artist, a
person whose inspiration came from without, either from God or some muse,
rather than from within. 19 However, with the Enlightenment emerged the idea of
the author as generator of creative ideas. 20 This transformation of the concept
of author made it possible to consider the existence of a property right in an
original work. Previously, because a work was considered to be the response to
some external muse or a result of the inspiration of God, the author’s proprietary
entitlement to the work was much weaker. Indeed, initially, the right of the author
was not thought to extend beyond the physical material of the manuscript. 21 But
once the muse was internalized, it became easier to acknowledge the existence
of a closer relationship between the author and her work. 22
The concept of privilege that copyright came to replace was rooted
in the older view of authorship. According to this view, a book was a means
for transmitting ideas received by the author from external sources. As a result,
the compensation that an author received from a publisher for his work was
considered to be an honorarium, rather than payment for the work itself. As
Woodmansee points out, “[t]he honorarium an author might expect to receive for
his work bore no relationship to the exchange value of that work but was rather
an acknowledgment of the writer’s achievements.” 23 As the publication of books
became more widespread during the eighteenth-century, the reproduction of
books without the permission of the author or the original publisher became more
prevalent. To protect the emerging class of publishers and printers, privilege was
extended to them, which gave them an exclusive license to produce a particular
work until they had realised a profit. 24 The privilege was extended to a printer by
17. Das Eigenthumsrecht an Geisteswerken (Frankfurt/Leipzig: no publisher, 1789).
18. Roger Chartier, “Figures of the Author,” in Sherman and Strowell, Of Authors and Origins, supra note 12,
7–22 at p. 15.
19. Woodmansee, “The Genius and the Copyright,” supra note 13 at pp. 426–427. See also Buyora Binder,
“The Law-as-Literature Trope,” in Michael Freeman and Andrew DE Lewis (eds.), Law and Literature (Oxford:
Oxford University Press, 1999) 63 at 65-66.
20. Rose, Authors and Owners, supra note 12 at p. 6. See also Paul Edward Geller, “Must Copyright Be For Ever
Caught between Marketplace and Authorship Norms?” in Sherman and Strowel, Of Authors and Origins,
supra note 12, 167–201 at p. 168; and Martha Woodmansee, “On the Author Effect: Recovering
Collectivity,” in Martha Woodmansee and Peter Jaszi, eds., The Construction of Authorship: Textual
Appropriation in Law and Literature (Duke University Press, 1994) 15–28 at pp. 16, 27.
21. Rose, Authors and Owners, supra note 12 at p. 9 (“the bookowner’s property was not a right in the text as
such but in the manuscript as a physical object made of ink and parchment.”) and p. 17 (“Authors may not
have owned their texts, but they did of course own their manuscripts, the physical objects they had made
with their own hands or caused to be made”).
22. See Rose, “The Author as Proprietor,” supra note 13 at p. 52, where Rose discusses how the late
eighteenth-century debates about the nature of property rights went hand-in-hand with the Romantics’
novel view that works of art were the “expression of the unique personality of the artist.”
23. Woodmansee, “The Genius and the Copyright,” supra note 13 at pp. 434–435. See also Rose, Authors and
Owners, supra note 12 at p. 17 (“the actions of the republic and the king [in granting privilege] are perhaps
best understood in terms of ‘honor’ and ‘reward’ rather than ‘property’”).
24. Rose points out that copyright was traditionally a right of the publisher, not the author. See Rose, “The
Author as Proprietor,” supra note 13 at p. 27. See also David Saunders, “Dropping the Subject: An
Argument for a Positive History of Authorship and the Law of Copyright,” in Sherman and Strowel, Of
Authors and Origins, supra note 12, 93–110 at p. 94; and L Ray Patterson, Copyright in Historical Perspective
(Vanderbilt University Press, 1968) at p. 146.