On intellectual property

II Should the law therefore create monopolies by artificially transforming intellectual wealth into social wealth? This is exactly how the question of intellectual property presents itself, from the twofold point of view of justice and economic advantageousness. [253] The study of this question from the point of view of justice consists of investigating to what extent scientific, artistic, and industrial ideas really belong to the authors and inventors; i.e., to what degree we owe these ideas to them, and only to them. In this respect, there is some difference between those ideas. The discovery of a scientific idea, and also that of an industrial idea, has an element of inevitability. Since truth is absolute and universal, it does not have different varieties; it must necessarily reveal itself just as it is, sooner or later;

the human mind must meet it one day or another in the form that it necessarily has. This applies up to a certain point to both the applied truth and theoretical truth, since the former is brought about by the latter. This is demonstrated by the fact that scientific and industrial ideas are very often discovered by two different persons at the same time. Leibnitz and Newton discovered the infinitesimal calculus at the same time; Scheele and Lavoisier isolated oxygen at the same time; while Messrs. Raoul Pictet and Cailletet liquefied it recently at the same time. We do not know whether the invention of the steamboat should be attributed to Salomon de Caus, Fulton, or Papin, and the invention of the locomotive to Séguin or Stephenson. It is therefore certain that if all those men had failed to make the discoveries, other scientists or industrialists would have made them a little later. Artistic and literary ideas are much more personal. Since aesthetic and emotional ideas are relative and individual, their variety is enormous; in the absence of one of them, another would have appeared, but not the same one. If Raphael, Michelangelo, Molière, and Mozart had died at a very young age, and had not painted the Triumph of Galatea, sculpted the Night and the Thinker, written the Misanthrope, and composed Don Juan, other painters, sculptors, poets, and composers would have achieved masterworks, but not those just mentioned. If this observation is correct, it is certain that we owe artistic and literary ideas more to the artists and authors than we owe scientific and industrial ideas to the scientists and engineers. However, it is certain, in any case, that we do not owe these ideas [254] exclusively to their creators and inventors only, but also to other artists, writers, scientists, and engineers who preceded them. Undoubtedly, Leibniz and Newton would not have discovered the infinitesimal calculus without Descartes’ work and that of other mathematicians of the seventeenth century; Fulton or Papin, Séguin or Stephenson could not have made their inventions without Watt’s. Without any doubt, Raphael and Michelangelo were inspired by Greek and Roman art, Molière by Terence and Plautus, Mozart by Haydn and Cimarosa. The point of view of modern criticism, which demonstrates to what extent works of art and literature are a product of the social environment in which their creators lived, is perfectly justifiable and will be of much help to us here. This point of view settles the question of justice in the sense that scientific, industrial, artistic, and literary ideas belong only partly to their creators and inventors, and partly to society. Undoubtedly, Descartes and Watt remaining the inventors of the ideas they added to those of their predecessors, Newton, Papin, and Stephenson remain similarly the inventors of the ideas they added to those of Descartes and Watt. However, since Newton, Papin, and Stephenson were able to benefit from the discoveries of Descartes and Watt, other scientists and industrialists should have the opportunity to benefit from theirs. The same thing may be said as far as artistic and literary ideas are concerned. These conclusions from the point of view of justice agree perfectly with those we obtain when we take the point of view of economic advantageousness. It is certainly contrary to the general interest if useful things, whose quantity is unlimited, are monopolized, so that, instead of having these things free, we are

obliged to pay the price that yields the maximum profit. But on the other hand, it is equally contrary to the general interest if the intellectual workers cannot obtain any advantages from their ideas, for it is certain that then research on [255] scientific theories, pursuit of industrial inventions, creation of works of art and literature would at least be considerably neglected, if not completely abandoned. It will not be completely abandoned, because scientific and industrial curiosity, and artistic and literary passion, are for certain people very strong stimuli, which make them defy any obstacle. But it will be considerably neglected for two reasons: first, because, not counting the few persons for whom the above stimulus is enough, there are many people for whom the lure of a profit is necessary; and, second, because even the former will find it impossible to continue their work if they cannot obtain any pecuniary return from it to support themselves. Hence, justice and advantageousness recommend that we do not settle the question of intellectual property either exclusively in favour of the creators and inventors, or exclusively against them. Between the creator or inventor, on the one hand, and society, on the other, a convention should intervene such that, when the former makes known his idea, the latter provides the means for him to exploit it as a monopoly during a certain time, after which it will fall into the public domain. Furthermore, if the inventor or creator prefers to keep his idea secret, he has the right to exploit it monopolistically until somebody else discovers it. This should be, in our opinion, the exact principle of intellectual property. This conclusion is not applicable uniformly to the ownership of scientific ideas, of artistic ideas, and of industrial ideas. The discovery of a scientific theory can be protected only on the condition that it be considered a public service. It cannot benefit at all those who take part in it, because the industrial applications are too uncertain and distant in time. How long would Volta, Œrstedt, and Ampère have had to wait before their theories about electricity and electro-magnetism were applied in industry? Only the State can assure the cultivation of [256] science, and naturally does so when it organizes the teaching of it. The professor is the true scientist, and his requirements are met if his salary comprises both the price of his lectures and that of his discoveries, which, once made, fall immediately into the public domain. If he publishes works in which he explains his own and others’ theories, these works will be considered as belonging to the scientific literature, and acknowledged as his literary property. There are also works of art that, like science in its entirety, should be considered as public services. The State alone is in the position to commission certain monuments, certain statues, certain paintings, and, when it pays for them, it must also pay for the architectural, sculptural, or pictorial idea that everybody may enjoy and find inspirational. However, besides these works there are other products, of less artistic value but higher market value, whose ownership should be conceded to the artist as artistic property. Literary works in the proper sense of the term are almost all of that type. Finally, ownership of industrial ideas will certainly form an element of industrial property because those ideas can provide remuneration to the inventors, and consequently the State need have no interest

in their invention. To summarize, intellectual property is made up of two kinds: artistic and literary property, and industrial property. The principle of intellectual property, once having been stated, must then be applied. This is an awkward matter, as may be very well demonstrated by the example of the French law on patents. Under the influence of the empty rhetoric and slogan-mongering that so often predominate in France in the discussion of this kind of question, and as a result of a law dated 7 January 1791 giving inventors too extreme property rights over their inventions, the law dated 5 July 1844 granted these inventors, or those who style themseves as such, exorbitant advantages. Here is how one proceeds in France in regard to patents under this law. Any person who claims, [257] rightly or wrongly, to have made an industrial invention, makes a request for a patent in which he presents a description of the invention. He is granted the patent without examination and unconditionally, with this sole reservation: no government guarantee. Once provided with this patent, our individual takes legal action against everybody whom he believes has infringed upon it, and in this way, with the aid of experts, the question of whether the invention is real and worthwhile is discussed and settled. However, without waiting until the outcome of the lawsuit, the holder of the patent may obtain the confiscation, on his simple demand and for his own benefit, of both the products he claims to be infringements, and the means of producing them. In all other matters, this kind of confiscation has been abolished, but it remains a benefit of the patent holder. Under these circumstances, a special type of business came into existence and developed, consisting of taking patents haphazardly and ‘blackmailing’ the most honest and capable industrialists by intimidating them with the threat of lawsuits. Such legislation is manifestly inconsistent. A choice must be made between these two systems: either granting the creator or inventor the right to put his idea or invention into production, without any further rights prior to a decision in court, or submitting his idea or invention to an investigation, and granting him or denying him the privilege of exploiting it. It seems to us that the first of these two systems is more suitable for artistic and literary property, and the second for industrial property. Artistic and literary property has to do with works: monuments, statues, drawings, engravings, musical compositions, books. One can hardly simulate such a work; and, in regard to the ability to certify its uniqueness, a court is, in general, highly competent. Therefore, a deposit of a copy of the work, or a certificate stating the registration of its date, is the sole safety measure that must be taken while awaiting lawsuits. Industrial property, on the other hand, concerns processes. Nothing is easier than for the first person who claims its invention to write up some description or another; however, for forming their opinion on the value of the process, the judges will [258] always have to make an appeal to specialized people’s opinions. Why not establish right at the beginning a committee of experts, and why not ask its opinion? The patent would be granted or refused depending on their investigation. Statistics teaches us that out of one hundred patents requested under the present French system, two or three offer something of importance. Putting aside these two or three

would release our industry from any anxiety with respect to the other inventions. In the eventuality that the State considers it advantageous to put the invention immediately into the public domain, it could buy the patent and compensate the inventor for it.