[A Draft of Liberty Fund's new translation]
[May 17, 2012]
[SUMMARY: Attacks made on external property. – Literary and artistic property. – Counterfeiting – Ownership of inventions.]
Title Page of the original 1849 edition
The photo of Molinari (1819-1912) which accompanied his obituary in the Journal des économistes
Molinari's book Les Soirées de la rue Saint-Lazare; entretiens sur les lois économiques et défense de la propriété. (Paris: Guillaumin, 1849) is being translated by Liberty Fund. The translation was done by Dennis O'Keeffe and it is being edited by David M. Hart. The critical apparatus of foontnotes and glossary entries, and introduction are being provided by David Hart. We welcome feedback from Molinari scholars to ensure that this edition will be a great one and thus befitting Molinari in his centennial year.
This page has a detailed Table of Contents and links to other Chapters.
SUMMARY: Attacks made on external property. – Literary and artistic property. – Counterfeiting – Ownership of inventions.
You have undertaken to prove to us that the ills attributed to property, in reality stem from attacks made on property. Are you in the frame of mind to begin proving this paradox?
Would to God you were teaching such paradoxes… I drew the distinction between internal and external property. The first consists in the right every man has to dispose of his physical, moral and intellectual faculties, as well as of the body which both houses those faculties and serves them as a tool. The second inheres in the right every man has over that portion of his faculties which he has deemed fit to separate from himself and to apply to external objects.
Where do our property rights with respect to external objects begin and end?
They begin at the moment when we apply some portion of our resources and faculties to the things which nature has put freely at our disposal;[p. 43] at the moment when we complete the work of nature by giving these things a new aspect; at the moment when we add to the natural value which inheres in them, an artificial value. They finish at the time when that artificial value is extinguished.
What do you mean by “value”?
I mean by “value”that quality things possess which enables them to satisfy human needs.
Thus man possesses his own being and the things, artificial or natural, which depend on his being, his faculties, his body and the things he makes.
The works of man, from which external property derives, are of two kinds: material and non-material.
The law recognizes material property in perpetuity, that is to say as long as the object owned, lasts. By contrast, law restricts non-material property to a rather brief time period. Both have the same origin, however.
Do you mean to say that you are treating the property of an invention or a piece of music in the same way as property in houses or land?
Absolutely. Do they not both have their origin equally in work? From the moment effort is expended and value created, whether the effort involves the nerves or the muscles, whether the value be applied to a palpable object [p44] or an intangible one, a new property is created. It matters little under what form it manifests itself.
If it is a question of a plot of land under cultivation, it will be for the most part physical force which has been expended; if it is a piece of music, it is the intellectual faculties, with the help of certain physical and moral resources which will have been set to work. But short of placing cognitive faculties below physical powers, or even more, short of claiming that man possesses, in his intelligence, less legitimate claims than those of his physical powers, can one establish some difference between these two sorts of property?
So you would want the inventor of a machine, the author of a book, the composer of an aria, to retain total ownership of their work and in perpetuity be able to give them away, bequeath them or sell them. You would want them to be granted even the right to destroy them. You would want the heirs of Bossuet, Pascal and Molière to be allowed to deprive humanity of the immortal works of these mighty geniuses. Well, that is taking exaggeration to barbarous heights.
Applaud, that is the right response. Are you quite aware of what doctrine you have just been supporting, Mr Conservative?
The doctrine of common sense in my opinion.
Not so, the doctrine of Communism.
You must be joking. I maintained the rights of society over the products of intelligence, that is all.
That is just what the Communists do. Only, they are more logical than you. They support the rights of society over everything, over material products as well as non-material ones. They say to the workers: fulfill your daily tasks, according to your powers, but instead of claiming the products of your labors, the valuable things you have created, for yourselves, hand them over to the general body of the citizens, to the community itself, which will take upon itself the responsibility of sharing equitably among all, the fruits of each person’s efforts. You will get your share. Now is it not true that that is the language of the Communists? 
Yes, that is just the language of that insane sect which robs the worker of the legitimate fruit of his labor, in order to give him some arbitrary share of the output of all.
Truly you speak with the voice of wisdom. Do you not admit, therefore, that they are stealing all or part of the fruits of his labor, in order to place that whole or that part with the community?
This is theft!
Well this theft is something society practices every day [p46] to the detriment of men of letters, artists and inventors.
You are familiar with the law in France regulating literary property. While the ownership of material things – land, houses, furniture – is without date, literary property is limited to the twenty years following the death of the author/proprietor. The Constituent Assembly had even gone so far as granting only ten years.
Before the Revolution the legislation was in some respects much more equitable…
Before the Revolution you say?
Yes. You know that at that time all rights, the right to work as well as the right to own, emanated from the King. Authors therefore obtained for themselves and their heirs, when they asked for it, the exclusive right to exploit their books commercially. This privilege was without limits; unfortunately it was revocable at will; moreover, it was subject in practice to tiresome restrictions. When an author sold his work to a book seller, the exclusive right to exploit his works died with him. Only those who had inherited could keep this right exclusively.
Yes. One can find a proclamation by the Council of 14 September, 1761, which maintains La Fontaine’s grandchildren in the [p47] prerogatives of their ancestor, seventy years after his death. If the Constituent Assembly had understood its mission fully and properly, it would have recognized and guaranteed literary property by freeing it from the shackles of ancient privilege, which the ancien régime had recognized even while circumscribing it. Unfortunately, communist ideas had already germinated at that time in French society. A living resumé of the philosophical and economic doctrines of the eighteenth century, the Constituent Assembly included the disciples of Rousseau and Morelly as well as those of Quesnay and Turgot. It drew back therefore from outright recognition of intellectual property. It mutilated that legitimate property in order to bring down the price of works of the mind.
Was not this praiseworthy end achieved? Suppose that the literary property of Pascal, Molière and La Fontaine had not been annulled to the benefit of the community, would we not be obliged to pay more for the work of these illustrious geniuses? And can one equate the interests of the few with the interests of all?
“When the savages of Louisiana want some fruit”, says Montesquieu, “they cut the tree at its base and gather the fruit. That is what despotism does”. That is what communism does too, the author of The Spirit of the Laws would have said had he lived in our times. When you limit literary property thus, what are you doing? You are diminishing its market price. – I produce a book and I offer to sell it to a book seller. If the ownership of this book is guaranteed to him in perpetuity, he will obviously be able to pay me for it and [p48] at a better price than if twenty years after my death this property perishes.
Surely that is very unimportant in practice. How many books live another twenty years after the death of their author?
You are furnishing me with another weapon to use against you. There are two sorts of books; those which do not last and those which do. Your law limiting the life of intellectual property leaves the value of the first kind intact and diminishes the value of the second. Let me give you an example. A man of genius has written a book destined to last down the ages. He is going to take it to his book-seller. Can the latter pay more for this immortal book than for run of the mill stuff destined for oblivion, after a fleeting success? No, because while the book may not die, the property in the work dies, or, which comes to the same thing, it falls into the public domain. After a certain number of years, its titleholder is legally dispossessed. Your law rewards mediocrity and penalizes genius.
So what happens? What we see is the number of lasting books diminishing and the number of short-lived ones increasing. “Time”, says Aeschylus, “respects only what it has founded”. With very few exceptions, the masterpieces which the past has bequeathed us have been the fruit of very long labor. Descartes gave most of his life to writing his Meditations.Pascal made as many as thirteen copies of his Provincial Letters before handing them over to the printers. Adam Smith pondered the economic problems of society for thirty years [p49] before penning his immortal treatise The Wealth of Nations. When the man of genius does not, however, enjoy a degree of affluence, can he sow for so long without harvesting? Is he not, pressed by the spur of life’s necessities, to supply the fruits of his intelligence while they are not yet mature?
Facile writing is much denounced, but can we have any other kind? How can we avoid light-weight work when the value of painfully achieved creations is brought down to the level of trivial writings? You will propose in vain that men of letters sacrifice their personal interests to those of art. The men of letters will not listen and in the main they are right. They too have family duties to fulfill, children to raise, parents to care for, debts to pay, a position to maintain. Can they neglect these natural and sacred duties, out of a love of art?
They make do and they head for the type of literature in which making do is easiest. In science the same situation engenders the same deplorable results. It is no longer observation which dominates modern science, but hypothesis. Why? Because you can construct a hypothesis quicker than you can observe a law. Because you can make books more easily out of hypotheses than you can out of observations. And one also has to add that the hypothesis is often more striking. Paradox is more astonishing than truth. It becomes successful more easily. It probably loses that success more rapidly too. Meanwhile, the fellow who improvises with paradox gets rich, while the [p50] patient seeker after truth battles with poverty. Given this, is it surprising that paradoxes abound and real science becomes more and more rare?
You neglect to say that the government undertakes to look after men with distinguished careers in science or the arts. Society has rewards and honors for truly learned men and real men of letters.
Yes, and in this whole absurd system there is nothing less absurd. Just look at it. You devalue the property of real learned men and writers, in the alleged interests of posterity. Some sense or other of natural equity, warns you, however, that you are plundering them. So you extract from society a tax whose proceeds you allot to them. You have a budget for the arts and letters. I take it that the funds raised in this budget are always equitably shared and reach the people the law is aiming at (and you will know whether my hypothesis is correct); is this penalty any the less tainted with iniquity? Is it right to oblige taxpayers to finance a tax to the advantage of future consumers of literature? Is not this a communism of the worst kind, this one which reaches beyond the grave?
Where do you see this alleged communism?
In a communist society, what does the government do? It seizes the product which the work of each man yields in order to distribute it freely to all. Well, what does [p51] government do, when it puts a time limitation on literary property? It takes a part of the property of the learned man and the man of letters and hands it over free to posterity; after which it obliges taxpayers to hand over a part of their property to learned men and men of letters.
The latter lose out in this communist arrangement, since the proportion of property stolen from them is larger than the benefit which is granted to them.
Taxpayers lose even more in this way, for they get nothing for the amount which they are forced to pay.
Do at least the readers of books gain something?
Present day readers gain nothing since writers gain temporarily an absolute right of property over their works.
Future consumers are able, probably, to buy ancient works more cheaply; on the other hand they are less lavishly supplied with them. In other respects books which last across the ages experience all the inconveniences which attach to communism. Fallen into the public domain they cease to be the objects of that attentive and vigilant care that an owner knows how to give to his own. Even the best editions are full of alterations and mistakes.
Shall I say something of the indirect harm which results from the constraints on literary property – shall I speak about counterfeiting?
What connections do you see between counterfeit editions and the legal limitations on literary property?
What is counterfeiting, in effect, other than a limitation on literary property, in terms of place, where your law limits it in terms of time? Is there in reality the least difference between these two sorts of attack on property? I will go further. It is the limitation in time which gives rise to the limitation in place.
When material property was thought of as a simple privilege emanating from the sovereign’s goodwill, this privilege expired at the borders of each state. The property of foreigners was subject to the right of confiscation.
When material property came to be recognized everywhere as an imprescriptible and sacred right, the right of confiscation ceased to be applied to it.
Only intellectual property is still subject to this barbarous law. In all justice, however, can we justifiably complain? If we respect intellectual property less than material property, can we oblige outsiders to respect it equally?
Perhaps not. But you are taking no account of the moral advantages of counterfeiting. It is thanks to them that French ideas spread abroad. Doubtless our men of letters and our pundits lose out; but civilization gains. What does the interest of a few hundred individuals matter compared to the wider interests of humanity?
You are now using with respect to the advantage of foreign consumers the same argument you have just used about the [p53] advantages to future ones. I will set myself up to refute the argument from the point of view of consumption in general.
France is perhaps in all the world, the country where literary production is most active and abundant. Books are very expensive here, however. We pay 15 francs for a two-volume novel, while in Belgium the same two volumes cost only 1 franc 50c. Should we attribute this price difference solely to the rights of authors? Not so. On the admission of the interested parties themselves, it stems mainly from the slender market base available to French booksellers. If illegal printing came to be suppressed, the two volumes which sell at 15 francs in France would probably fall to 5 francs on the general market, or perhaps even lower. In this case the foreign consumer would pay 3 francs 50c more than under the system of counterfeiting; on the other hand the French consumer would pay 10 francs less. From the viewpoint of general consumption, would this not be obviously advantageous?
A few years back I heard M. Chaix d’Est-Ange, in the Chamber of Deputies, defending counterfeiting in terms of the dissemination of enlightenment. It is thanks to counterfeiting, he said, that French ideas penetrate foreign parts. – Possibly so, one might have replied to this distinguished lawyer; on the other hand this practice prevents French ideas from penetrating France herself.
Foreign consumers would pay a little more for our books if counterfeiting ceased, and so on. We would supply them, however, with better and [p54] more numerous ones. Would they not benefit equally with us?
I agree. I am most decidedly of the opinion that you are right and I feel much disposed to rally to the cause of literary property.
I would have been able to develop further some considerations on the expansion and stability which full recognition of literary property would bestow not only on the work of literary people but on book selling too… Since I have won my case, however, I do not insist on it.
Since you grant me literary property you must also grant me artistic property.
In what does artistic property consist?
If it is a question of a painting, statue or monument, artistic property consists in the right to dispose of it like any other material property and to have it reproduced or give exclusive right to its reproduction by sketching or engraving etc. If it is an industrial design or technical drawing, artistic property resides likewise in an exclusive right of reproduction. It goes without saying that this property can be given away or sold like any other property.
I don’t see any difficulty here. It might be agreed, however, to make an exception for industrial designs and technical drawings. Craftsmen, draftsmen, and industrial designers [p55] would make excessive demands if they were granted absolute property rights over their work.
Ah, so I’ve got you again Mr Communist/Conservative. Well let me tell you that quite inadvertently the statutory administrators under the Empire left that form of property outside the framework of limitation. This salutary forgetfulness inevitably bore excellent fruit. Our industrial designs and technical drawings are today unrivalled in the world.
This is easily explained. On the one hand the industrialists who buy from the craftsmen these industrial designs and technical drawings, being guaranteed perpetual tenure of this property, can pay the highest possible price. On the other hand the craftsmen, guaranteed a good price, put in the time and care necessary for their production.
But are you also aware of what has happened? I bet you will never guess. These industrialists, who are such fierce protectors of property, one day realised that they were paying too much for their industrial designs and technical drawings. The issue was put on the agenda one day in the committees where they debate business and profitability. It was unanimously agreed that the ills arose from the perpetual nature of property. As a result they immediately demanded that the government should curtail it. The government hastened to comply with this demand from the big barons of industry. The Ministry of Agriculture and Commerce rushed through a legal reform reducing to three, five, ten and fifteen years, the property rights pertaining to industrial designs and technical drawings [p56]. The project was presented to both Chambers and discussed in the Upper Chamber….
No! The February Revolution forced it from the agenda. You can be quite sure, nevertheless, that discussion of the matter will be resumed and that the law will be passed. These conservatives, however, who strike so ruthlessly at the property of craftsmen, who never hesitate to engage in communism when it is to their advantage, hound communists like so many wild beasts.
If the industrialists of whom you speak had thought properly about their true interests; if they had entertained a few sound notions of political economy, they would have understood that in hurting craftsmen they would inevitably hurt themselves too. When the law has limited property rights to industrial designs and technical drawings, these creative works will probably be sold at a lower price; but will they retain the same degree of perfection. Will not elite craftsmen turn away from this branch of work when their output is not properly rewarded?
They could still be paid properly, it seems to me.
If houses could be possessed for three years only, would not their prices fall [p57]
Assuredly. One would not put a high price on a house of which one could be dispossessed in three years’ time.
Under these arrangements we would build only hovels.
Well if the law likewise reduced the market value of industrial designs and technical drawings, henceforth industrial designs and technical drawings would be nothing but cheap junk.
In this case, however, will our fabrics and bronzes, in which the design, the pattern itself, often constitutes the whole price, still be able to meet foreign competition? In limiting the property rights of craftsmen, will our industrialists not be cutting down the tree to obtain the fruit?
This is true.
You see where constriction of property leads. Maybe things become ordinary; but either they are badly produced or no longer produced.
If you support indefinite property rights over creative works, you must support them also in respect of inventions.
Indefinite property rights over inventions! This would be the death of industry, which is already mercilessly fleeced by inventors.
In fact, however, inventions, like works of literature and art, are the fruit of intelligence put to work. [p58] If the latter give rise to unlimited and absolute property rights, why should the former, which have the same origin, give rise only to limited and conditional rights?
Are not the interests of society at stake here? I understand granting a right of unlimited and absolute ownership to writers and artists. That has only minor importance. At a pinch the world could do without artists and writers.
But we could not get by without inventors. It is they who supply the tools and techniques of agriculture and industry.
Thus it is not a question of getting rid of inventors or reducing their numbers. It is a question of increasing their numbers by guaranteeing that their labor receives the remuneration due to it.
This is something I want to see. In decreeing the ownership of inventions in perpetuity, however, are you not putting agriculture and industry forever under the yoke of a small number of inventors? Are you not subjecting the most vital branches of production to demanding, intractable, odious monopolies? Suppose, for example, that the inventor of the plough had retained the property rights of his invention, and that that right had been transmitted intact until the present era, what would have happened?
We would have had today more and better instruments for ploughing.
This is completely absurd!
Let us talk about it. You are familiar with the legislation which regulates inventions today. Inventors are guaranteed property rights over their inventions for five, ten and fifteen years, on the condition of paying the Exchequer 500 francs in the first case, 1000 francs in the second, and 1500 francs in the third. Now it is perfectly possible for an invention not to yield the inventor what he had expected from it. In this case he finds himself punished, fined for having invented something.
I have never said the present law is perfect. It can be reformed. But to grant the inventor perpetual ownership rights to his work: madness!
In whose interest do you wish to deprive the inventor of part of his property rights. Is this in the interests of present consumers? No, because you accord the inventor his property for five, ten or fifteen years. In this period he naturally draws the maximum possible share which will soon be denied him. He exploits his monopoly very rigorously. It is therefore solely in the interests of posterity that you would dispossess inventors.
It is in the interests of progress and civilization. [p60] Moreover, how could we disentangle and demarcate the rights of inventors. All inventions interlock somewhere or other.
As do all forms of material property. That does not stop each person at the end of the day protecting the integrity of his own.
Yes, but this would be much more difficult in the domain of invention. Would not the identification of the property of inventors give rise to a myriad of legal actions?
Is not the abolition of property a strange way of preserving it from the dangers of legal wrangling? Moreover, the difficulty you are emphasizing occurs every day and is every day resolved. The fact that the property from inventions is guaranteed for five, ten or fifteen years, gives rise to legal cases, just as though it were perpetual. These cases are judged and that is that. Your objection fails before the facts. So again I say that you wish to limit the property rights to inventions in the interests of posterity.
There are in the West of the American Union immense, virgin lands which are every day taken up by the intrepid emigrants who go there. When these pioneers of civilization see a plot which takes their fancy, they stop their wagons, pitch the tent and first with the axe [p61] and secondly with the plough, they dig and clear the soil. They give value to this soil which previously had none. Well, this value created by labor, would you find it equitable for the community to appropriate it after five, or ten or fifteen years, instead of allowing the worker to bequeath it to his posterity?
Heavens above; but that would be communism, barbarism! Who would want to clear land on these terms? Even so, is there even the least analogy between the work of the pioneer and that of the inventor? Is not intelligence a common fund of humanity? Can one limit its fruits entirely to oneself? Does not the inventor draw considerable benefit, moreover, from the discoveries of predecessors and the knowledge which has been built up in society? If he did not engage in invention, would not someone else, drawing advantage from these discoveries and this common knowledge, engage in invention in his place?
The objection applies to the clearing of land as much as to invention. Society would not be able to say to this first occupant of the land: you are going to make land hitherto unproductive, valuable: all right; we consent. Do not forget, however, that the soil is God’s work and not yours. Do not forget that while its fruits belong to all, the land itself belongs to no one. So enjoy this plot of land for a few years, but after that be sure to restore it to humanity, which holds it from God. If you do not submit with good grace to this legitimate restitution, we know very well how to use force [p62] to make the will of all prevail against the egoism of a single person. What? Are you resisting? Are you objecting that you alone, in the sweat of your brow, created the value that I am now demanding be removed from you? You rebellious and unnatural proprietor! Could you have created this value, without the tools and the knowledge which society supplied you with? Reply!
And the proprietor would doubtless reply: The community has indeed supplied me with tools and knowledge but I have paid for them. My forebears and I have acquired by our work everything we possess. Society has therefore no claim on the fruits of my present work. And if, abusing its power, it steals my property, holding it in common or handing it over to men who did not create it, it will be committing the most iniquitous and odious plunder.
Well replied. Answer that one for me, you communist gentlemen!
Answer it yourself. If society accepts that it has no claim on the property of land-clearers, although they work on previously common land, although they use prior discoveries and knowledge, it would obviously not be able to claim anything against the property of inventors.
That depends on the demands of the general interest. If the [p63] community seizes some land, five, ten or fifteen years after it has been cleared….
And if that community forces the clearer to pay 500 francs, 1000 francs or 1500 francs before he knows whether or no the land will be fertile….
And whatever the extent of the cleared land….
It is certain that there will not be much clearing of land and that the community itself will be the loser.
It is the same with inventions. Much less is invented under a regime of limited property rights than would be invented under a regime of unlimited property rights. Now since society can advance only on the basis of feats of invention, posterity, whose interests you have invoked, would obviously gain from the recognition of inventors’ property rights, just as it benefits from recognition of landed property.
Perhaps you are right for the majority of inventions. There are some, however, so necessary that one could not leave them long in private possession. I cited the case of the plough. Would it not be a dreadful misfortune if a single individual had the right to make and sell ploughs, if the property rights with respect to that tool, so vital to agriculture, had not entered the public domain?
It would be disastrous in fact.
Let us examine together how things would have turned out if the inventor of the plough had enjoyed property rights over his invention, instead of being denied these. Above all, however, here is my reply: No! Society serves its true interests by recognizing the rights of the inventor of the plough, not not by seizing for itself this property which is due to the work of one of its own members and rendering it common to all. No! Society has hindered the progress of agriculture instead of facilitating it and in plundering the inventor it is plundering itself.
We will see this clearly. What is the plough and what use is it?
The plough is an instrument pulled by beasts of burden, horses or bullocks, in the charge of a man, and which serves to open up the soil. Before the invention of the plough what did people use to cultivate the ground? They used the spade. There you have two very distinct tools therefore, with the aid of which the same work can be accomplished; two tools which compete the one with the other. This competition is, in truth, very unequal since the plough is infinitely better than the spade; and rather than resorting to this latter tool, the least economic of them all, most farmers would resign themselves to paying a substantial surcharge to the patent holders of the plough. But in the end the fields will not remain uncultivated. The spade would be used to that point when the plough’s patent holders, [p65] noticing that in extremity people could get by without them, would be more accommodating.
What would result however from this situation in society, with its being faced with the inflated claims of the owners of certain indispensable tools? That there would be a huge interest in multiplying the number of these tools and making more perfect versions.  At a time when the price of the plough, for example, was soaring, would not anyone who invented a tool as economic or more so to do the same job, make a fortune? And if he wished in his turn to raise considerably the price of his invention, would he not find his claims checked, first by the very fact of two old instruments, to which one could always revert, and secondly by the fear of stirring up a wave of new competition, since he would have increased interest in discovering a more perfect tool. So you see that monopoly ought never to be feared because there would always be on the one hand the existing and effective competition of less perfect tools and on the other hand the eventual competition of more perfect tools, quite soon.
Is not the field of invention limited?
The plains of intelligence are still more vast than the earth. In what branch of production can one assert that there is no further progress to be realized, nor discoveries to be made? Have no fear that the history of invention is ending; the powers of humanity will fail [p66] before invention has come to an end.
Do you believe for example that we could not find anything better, when it comes to ploughing instruments, than the present ones? Is not the plough, compared to the devices employed in manufacturing, a barbarous implement? The plough is a device moved by animal force. Now, does not manufacturing industry owe the immense progress it has realized over half a century to the substitution of the inanimate power of steam for the brute force of animals? Why does this economic substitution of inanimate for animal power not operate in agriculture too? Why has a steam driven device not replaced the plough in the way that the mule jenny has replaced the hand loom, and as the steam mill has replaced the grinding wheel turned by a blind horse, as the plough itself drawn by the power of beasts of burden replaced the spade powered by man?
If from the beginning, property rights over inventions had been recognized and respected to the same degree as material property, is it not at least probable that this benevolent progress would already have been accomplished? Is it not probable that steam would have already transformed and multiplied agricultural production as it has transformed and multiplied industrial production? Would not the result have been an immense advantage to the whole of humanity?
From all this my conclusion is that society would have had, from the start the very greatest interest in recognizing and respecting [p67] property rights applied to inventions including the invention of the plough.
So you believe that there will be all the more invention insofar as the property rights of invention are more extensive and better guaranteed?
Most assuredly I do. It was as late as the eighteenth century that people began to recognize property rights in invention. So let us compare the discoveries within a given period before and after that time.
That would seem to argue against your theories because property rights in invention are not unlimited.
If property rights in a field of wheat after the field had long been in common ownership, came to be recognized and guaranteed for five, ten or fifteen years vested in a single individual, would the growth in the production of wheat prove anything against unlimited property rights?
Probably not…But do not certain things discover themselves, so to speak, all on their own? There are discoveries which are in the air.
Just as there are harvests which are under the earth. It is a question only of making them emerge. But rest assured that “chance” does not take care of this requirement. How did you discover the law of gravity? they asked Newton one day. “By thinking about it all the time”, replied the man of genius. Watt, Jacquart, Fulton,, [p68] would probably have given the same reply to a similar question. Chance invents nothing. It does not open up the realm of intelligence any more than that of material things. So let us leave chance out of it.
They say that if a discovery were not made today it would be made tomorrow; but could this hypothesis quite as justly be applied to the clearing of land, as to new combinations of ideas and to inventions? If the backwoodsmen who emigrate to the west stayed at home, might one not agree that other backwoodsmen would go to set themselves up on the same virgin lands before five, ten or fifteen years? So why therefore don’t we limit the property rights of the former? Why? Because if we did limit them nobody would wish to lose himself in the solitude of the west either today or tomorrow. Likewise, believe you me, nobody would strive to take up the discoveries which are in the air if no one had a personal interest in so doing.
You forget that glory and the even more noble desire to serve humanity act no less powerfully than personal interest does on inventors.
Glory and the desire to serve the human race constitute a part of human interest and are not distinct from it as I have already shown you. But these elevated motives are not enough. Like writers and artists, inventors are subject to human weakness. Like them, they are obliged to feed, clothe and house themselves and usually also to look after a family. If you offer them no other appeal than glory and the satisfaction of having [p69] served humanity they will be obliged for the most part to give up pursuing invention as a career. The rich alone will be able to invent, write, sculpt and paint. Now since rich people are not very active workers civilization will scarcely advance.
Now then Mr Conservative admit with good grace that you have been beaten. If you support the perpetuity of material property you cannot but support that of intellectual property. There are the same right and the same necessities in both forms (always supposing of course that one recognizes this right and these necessities). Agree therefore to recognize property rights in invention as you have recognized the other kinds.
All that may be true in theory but, goodness me, in practice I prefer stay with the status quo.
 At this time both Molinari and Bastiat were participating in a rethinking of the theory of value which challenged the Smithian-Ricardian orthodoxy of the Economists. Each in their own way wanted to replace the traditional focus on "objective” amounts of a quantity such as labour which was supposedly "embedded” in the object being exchanged, with a radically new focus on the "subjective” assessment or evaluation of the value of an object by each individual participating in the exchange. Bastiat turned to the idea of the mutual exchange of "services"; Molinari turned to the idea of a subjectively determined and changing hierarchy of individual needs and the gradual reduction of scarcity caused by technological and economic progress. The definition of value which Molinari gives in the Cours d’économie politique (1855) is: “Exchange takes place because goods and services have value. Value is composed of two quite distinct elements - utility and scarcity. Utility is the property which things possess which satisfy or contribute to satisfying our needs/wants. Scarcity is a result of the difficulties which must be overcome in order to make things available in order to satisfy our needs/wants.” (reconstructed from Cours, vol. 1, pp. 83-84). [See the glossary entry "Molinari and Bastiat on Value".]
 Molinari is here building upon the work done by J.-B. Say in the Traité d'Économie politique (1803, 1817) and Cours complet (1828) and Charles Dunoyer in La Liberté du travail (1845) on the difference between "produits matériels” (material or physical products, or goods) and "produits immatériels” (non-material products, or services). This was one of Say's most important contributions to economic theory in an attempt to move beyond the limitations of Smithian orthodoxy which emphasized the production and exchange of physical goods which were durable and embodied quantities of labour which gave them value. Say argued that agricultural and manufactured goods (physical or “material” goods) were not the only source of wealth and that the activities which produced them were not the only "productive” economic activities that people could engage in. Furthermore, Say argued that “non-material” goods (services) like education, creative writing, and scientific inventions also created wealth and satisfied the needs of consumers and that the economic activities which produced them were just as productive as the production of material goods. Molinari was to go much farther than Say and the other Economists in his exploration of the possibilities of the market provision of non-material products, such as public goods like water supply, police services, and even national defense (see Soirée 11). [See, A. Clément, "Produits immatériels,” DEP, vol. 2, pp. 450-52, Charles Dunoyer, “Production,” DEP, vol. 2, pp. 439-50, and the glossary entry on “Material and Non-material Products.”]
 Jacques-Bénigne Bossuet (1627-1704) was a French bishop and court priest to King Louis XIV. Politically, Bossuet was a defender of the theory of the divine right of kings. He was a noted orator and writer whose sermons and orations were widely studied as models of French style.
 Blaise Pascal (1623-62) was a French mathematician and philosopher whose best-known work, Pensées (Thoughts), appeared posthumously. His Provincial Letters (1656) was a controversial work which attacked the casuistry of the Jesuit school.
 Jean-Baptiste Poquelin (1622-1673) is better known by his stage name Molière. He was a brilliant playwright who made a name for himself with witty comedies which explored the foibles of the French bourgeoisie. He wrote Le Misanthrope (The Misanthrope) (1666), L'Avare (The Miser) (1668), Le Bourgeois Gentilhomme (The Bourgeois Gentleman) (1670), and Le Malade imaginaire (The Imaginary Invalid) (1673).
 Molinari wrote the article on “Propriété littéraire”for the DEP, vol. 2 pp. 473-78 in which he gives a brief history of copyright legislation in France and directs considerable criticism towards Louis Blanc and the socialists who wished to end the ownership of intellectual property for good. He concludes optimistically (1852) that “it is therefore hoped that, although it will no doubt displease M. Louis Blanc and his school, literary and artistic property will sooner or later be fully recognized and guaranteed within its natural limits” (p. 478). [See glossary entry “Blanc.”]
 Louis Wolowski and Émile Levasseur, “Propriété” dans Dictionnaire générale de la politique par Maurice Block avec la collaboration d’hommes d’état, de publicistes et d’écrivains de tous les pays (Paris: O. Lorenz. 1st ed. 1863-64), vol. 2, pp. 682-93. See especially the section "Propriété littéraire et artistique" pp. 691 ff. where Wolowski talks about the debate within political economy over intellectual property. On one side were those like Molinari, Laboulaye, Fr. Passy, Modeste, and Paillottet who believed in a "complete (and) perpetual" right to intellectual property and on the other side those like Wolowski, Renouard, de Lavergne, Foucher, and Dupuit who believed that it should be a limited right of short duration, that it was a "license" for first use but not an absolute and eternal property right.
 Under the old regime copyright (droit de copie) existed in perpetuity but it was enjoyed at the pleasure of the sovereign and not by legal right. This right was lost if an author granted the copyright to a publisher. The author then only had copyright until his death, after which the book entered the public domain. During the Revolution copyright was protected under the law and it could be transferred without restriction but it was limited in duration. According to the law of 19 July 1793 copyright was granted to the author for life and to his/her heirs for 10 years after their death; the Decree of 5 February 1810 extended the right of heirs to 20 years. These laws remained in effect up until the mid-19th century, with only a slight modification with the law of 3 August 1844. [See, Édouard Romberg, Compte rendu des travaux du Congrès de la propriété littéraire et artistique. Suivi d'un grand hombre de documents et d'un Appendice contenant les lois de tous les pays sur les droits de l'auteur, aver notice historique (Paris: Guillaumin, 1859), 2 vols. "France. - Notice historique sur la propriété littéraire,” pp. 161-67; Législation, pp. 168 ff. Alfred Villefort, De la propriété littéraire et artistique au point de vue international. Aperçu sur les législations étrangères et sur les traités relatifs à la répression de la contrefaçon (Paris: De Cosse, 1851). "La France,” pp. 1-9. Molinari, "Propriété littéraire et artistique,” DEP, vol. 2, pp. 473-78.]
 Jean de La Fontaine (1621-1695) was a French writer of Fables and a poet. In his Fables (1668-1694) he turned what appeared to be simple children's tales about animals into witty and insightful stories about the human condition.
 Jean-Baptiste Racine (1639-1699) was a French dramatist who wrote tragedies based upon ancient Greek themes and stories, such as Alexandre le Grand (1665), Andromaque (1667), Britannicus (1669), Mithridate (1673), Iphigénie (1674), and Phèdre (1677).
 Molinari sees Jean-Jacques Rousseau (1712-1778) and Morelly (1717-?) as precursors of the modern socialist school and the Physiocrats Quesnay (1694-1774) and Turgot (1727-1781) as precursors of the modern Economists. [See the glossary entries for these authors.]
 Charles Louis de Secondat, Baron de Montesquieu, The Complete Works of M. de Montesquieu (London: T. Evans, 1777), 4 vols. Vol. 1. Chapter: CHAP. XIII.: An Idea of despotic Power. </title/837/71184/1688297>.
 Molinari uses the phrase “Le Temps ne respecte que ce qu’il a fondé” which may come from Aeschylus (525-456 BC) Prometheus Bound, Line 981 - variously translated as "Time waxing old can many a lesson teach", "Time as he grows old teaches all things,” "Time brings all things to pass.” A French translation from 1795 has Prometheus say to Mercury "Le temps le lui apprendra: le temps mûrit tout” (Time will teach him, it ripens (matures) everything). See Théatre d'Aeschyle, traduit en françois, avec des notes philologiques et deux discours critiques, ed. La Porte Du Theil (Paris: Imprimerie de la République, 1795), p. 58. It was a commonly quoted phrase. See also Michel Chevalier, Lettres sur l'Amérique du Nord, Volume 2 (Société belge de librairie, 1837), Lettre XXI, p. 15: "Là aussi se vérifie ce principe, si exact à l'égard de la gloire des hommes et de la splendeur des Empires, que le temps ne respect que ce qu’il a fondé” (There as well we see verified this principle which is so true with regard to the glory of men and the splendour of Empires, that time only respects that which it has founded).
 René Descartes (1596-1650) was a French philosopher and mathematician who lived much of his life in the Dutch republic. His best known work is Meditations on First Philosophy (1641).
 Molinari exaggerates slightly here. Adam Smith published the Wealth of Nations in 1776. He dealt with many economic matters in his unpublished Lectures on Jurisprudence which were given between 1762 and 1766. His book Theory of Moral Sentiments which addresses many related themes appeared in 1759. Supposing he spent 5 years researching the book, one could at best say that Smith "pondered the economic problems of society” for 25 years. [See, Ian Simpson Ross, The Life of Adam Smith (Oxford: Clarendon Press, 1995), chapter 11 "The Making of The Theory of Moral Sentiments,” pp. 157-76.]
 According to figures from the 1848 Budget the French government spent a total of fr. 18,038,033 on "Science and Letters” controlled by the Ministry of Public Instruction in 1848. Of this, fr. 584,800 went to the Institute (to which many Economists belonged), fr. 558,823 went to the Bibliothéque royal (renamed the Bibliothèque national after the 1848 Revolution), and fr. 170,233 on other public libraries. [See, the Appendix on the Government Budgets for 1848 and 1849.]
 The French word is “contrefaçon” which may be translated as “counterfeit” or as “pirated editions,” “unauthorized editions”, “illegal printing”.
 It is not entirely clear what Molinari has in mind here. A better explanation is given in his article on "Literary Property” in DEP where he makes the following distinction between restrictions on literary property which take place through time and those that take place through geographical space. Time limits placed by legislation on the length of copyright ownership vary from country to country so that countries with longer periods of exclusive authorial rights (like England (42 years plus 7) and Prussia (life plus 30 years)) are at an advantage compared to countries with a more limited period (like France (life plus 20) and Belgium (French law applied after 1817). Copyright is also limited across geographical space when a state allows counterfeiting within its borders of books which originate in other countries. Molinari denounced this as "international communism” which was only slowly being reduced as states like Prussia and England (1838) began to introduce reciprocal recognition of international copyright. [See, “Propriété littéraire”for the I, vol. 2 pp. 473-78, especially pp. 475-76.]
 Up until this point Molinari has been talking about "propriété littéraire” (literary property), "propriété artistique” (artistic property), and "droit de copie” (copyright). Here he uses the more general term of "propriété intellectuelle” (intellectual property) which would also include the following, "marques de fabrique” (trade marks) and "brevets d’invention” (patents).
 Gustave Louis Chaix d'Est-Ange (1800-1876) was a lawyer and politician. He took on a number of high profile trials during the July Monarchy (1830-1848) often in defense of liberal causes. During the July Monarchy he was elected a member of the Chamber of Deputies and during the Second Empire he served in the Council of State and then the Senate.
 Here Molinari uses the same term, “la propriété artistique” (artistic property), for both works of art (like paintings and statues) and industrial creations (like industrial designs and technical drawings) which is confusing. When he is referring to industrial property we will use the term “designer” or “craftsman” instead of “artist”.
 Renouard provides an outline of the government's discussions in the Chamber between April 1845 and July 1847 when an official Report on "marques de fabrique” (brands or trade marks) by M. Drouyn de Lhoys was tabled. Before the official report was tabled the government seemed to favor a free market solution whereby producers and merchants would use a voluntary system for establishing and enforcing trade marks ("la marque facultative") but the official Report came down in favor of a government funded and policed system of "la marque obligatoire” (compulsory trade marks and brands). Renouard thought this was a serious setback for the freedom of consumers to decide for themselves and would prove be a heavy burden on taxpayers. [See, Augustin Charles Renouard, "Marques de fabrique,” DEP, vol. 2, pp. 135-43; Augustin Charles Renouard, Du droit industriel dans ses rapports avec les principes du droit civil sur les personnes et sur les choses (Paris: Guillaumin, 1860), Livre Troisième "Du domaine privilégié” (On Privileged Property), Chap. IV "Marques de fabrique et de commerce", pp. 370-405. The government Report of 1847: Chambre des Députés. Séance du 15 juillet 1847 Rapport fait au nom de la commission chargée de l'examen du projet de loi sur les marques de fabrique et de commerce, par M. Edouard Drouyn de Lhuys (Chambre des députés (1847).
 Charles Coq
Last modified April 10, 2014