Document Type

Article

Publication Date

1990

Center/Program

Kernochan Center for Law, Media and the Arts

Abstract

The French and U.S. copyright systems are well known as opposites. The product of the French Revolution, French copyright law is said to enshrine the author: exclusive rights flow from one's (preferred) status as a creator. For example, a leading French copyright scholar states that one of the "fundamental ideas" of the revolutionary copyright laws is the principle that "an exclusive right is conferred on authors because their property is the most justified since it flows from their intellectual creation." By contrast, the U.S. Constitution's copyright clause, echoing the English Statute of Anne, makes the public's interest equal, if not superior, to the author's. This clause authorizes the establishment of exclusive rights of authors as a means to maximize production of and access to intellectual creations.

Pursuing this comparison, one might observe that post-revolutionary French laws and theorists portray the existence of an intimate and almost sacred bond between authors and their works as the source of a strong literary and artistic property right. Thus, France's leading modem exponent of copyright theory, the late Henri Desbois, grandly proclaimed: "The author is protected as an author, in his status as a creator, because a bond unites him to the object of his creation. In the French tradition, Parliament has repudiated the utilitarian concept of protecting works of authorship in order to stimulate literary and artistic activity."

By contrast, Anglo-American exponents of copyright law and policy often have viewed the author's right grudgingly. One of copyright's reluctant advocates, Lord Macaulay, labeled the institution of copyright as “exceedingly bad,” but was willing to tolerate it as the means to promote the dissemination of socially useful works. In this view, copyright should afford authors control no greater than strictly necessary to induce the author to perform his part of the social exchange.

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